Lawlines Vol 10 Issue 1

Transcription

Vol 10 Issue 1 • June 2008
Rajah & Tann LLP’s Bi-Annual Journal on articles of
current interest, features, and legal developments
Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on articles of current interest, features, and legal developments
IN THIS ISSUE:
A Round-Up Of Latest
Developments In The
First Half Of 2008
Rajah & Tann LLP Hosts
9th Lunchtime Seminar
Series
Tax, Private Wealth &
Trusts Practice
Court Of Appeal Delivers
Judgment On The LTAKomoco Motors Dispute
Insider Trading And The
Vexed Question
Of General Availability
Courts And Arbitration A Question Of Balance?
Recent Developments In
Singapore Law
Disclosure Of
Confidential Information
By Professional
In The Pursuit Of Its
Legitimate Interests
Public Private
Partnership Projects
– The Process
Open Source In IT
Contracts
A Round-Up Of Latest Developments
In The First Half Of 2008
Rajah & Tann LLP has continued to experience a period of growth and success in the first half of 2008.
The Firm has benefited from significant developments in its growth and continues to be involved in
some of the leading deals and litigation. The paragraphs below showcase the key highlights.
Senior Counsel Appointments
In January this year, two of our finest lawyers, Sundaresh Menon from the International Arbitration
Practice Group and Lee Eng Beng from the Business Finance & Insolvency Practice Group were
appointed as Senior Counsel. This brings the total number of Senior Counsel in Rajah and Tann LLP to
six. The other four Senior Counsel are Steven Chong, Quentin Loh, Andre Yeap and Toh Kian Sing.
Significant Partner Hires
Rajah & Tann LLP is pleased to welcome a number of lateral hires.
Mr Harish Kumar joined the Commercial Litigation Practice Group of Rajah & Tann LLP as a
partner with effect from 1 March 2008. Mr Kumar graduated from NUS in 1984 and has
been an active litigator over the last 20 years, having been previously connected with two
leading litigation firms in Singapore. He has litigated cases over a large spectrum of areas
including banking and finance, employment, landlord and tenancy, intellectual property, insolvency,
company and partnership disputes, corporate fraud, equity and trust, professional negligence and
reliance.
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He will add to the wealth of experience of the existing team and will further enhance our litigation
capabilities.
Additionally, Ms Amanda Davidson joined in February to head the Firm’s new Major Projects Group.
Amanda is an Australian qualified lawyer who has over 20 years of extensive experience in advising
on a wide range of infrastructure projects in the Australian and Asian markets. See related write-up
on Rajah & Tann LLP’s new Major Projects Group on page 7.
Mr Yeoh Lian Chuan and Ms Stacy Choong, both leading tax experts and private wealth
practitioners, joined us in June and May, respectively, to boost the Firm’s tax practice. Associate
Professor Stephen Phua, a leading tax academic from the National University of Singapore came
on board in June as a tax consultant. Lian, Stacy and Stephen have combined efforts with our Soon
Choo Hock, Christina Ng and Ronald Choo to form the Firm’s new Tax, Private Wealth & Trusts
Practice. See related story on the new Firm’s Tax, Private Wealth & Trusts Practice on page 24.
Global Arbitration Review 100
In January this year, the London-based Global Arbitration Review (‘GAR’) publication released an
approved list of the top 100 arbitration practices in the world based on an audited research period
of two years from September 2005 to September 2007. Rajah & Tann LLP takes pride in having
been chosen by the researchers as the only law firm from among the other top-tier law firms in
Singapore as one of the top 100 arbitration practices in the world. In addition to the 22 merit
hearings in arbitration cases recorded during the research period, Rajah & Tann LLP also reported
44 pending International Arbitration cases which is recorded in the GAR 100 as the 8th highest in
the world.
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This was the first edition of the GAR 100. It is an approved list which showcases the profiles of the
top 100 firms that have been audited for international arbitration capabilities and specialisation. The
GAR 100 is intended to assist clients in finding the specialist counsel they seek, and specialist counsel
in demonstrating their expertise. The GAR will be revising and releasing the GAR 100 every year.
Other Significant Legal Accolades
Our lawyers have gained several accolades from various legal journals in recognition of their
expertise and excellence in their respective areas of specialisation.
Steven Chong SC and Quentin Loh SC have been recognised as leading lawyers in dispute resolution
in PLC Cross-border Handbook 2007/8 – Dispute Resolution.
Seven of our lawyers have been identified by the 2008 Asialaw Leading Lawyers as the region’s
most highly-acclaimed legal experts in key practice areas. They are as follows:
• Steven Chong SC, Shipping, Maritime & Aviation, Dispute Resolution
• Andre Yeap SC - Dispute Resolution
• Kala Anandarajah - Corporate Governance, Competition & Anti-trust
• Andrew CL Ong - Competition & Anti-trust, IT, Telecommunications & Media
• Sin Chei Liang - General Corporate Practice
• Abdul Jabbar - Labour & Employment
• Adrian Wong - Dispute Resolution
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Asialaw Leading Lawyers is one of the largest annual surveys of Asia’s legal profession.
Series
Goh Kian Hwee has been included in the inaugural ‘Best Lawyers’ list for Singapore 2008 in the
specialties of Corporate, Finance and Mergers and Acquisitions. He was also nominated as a leading
lawyer in the Guide To The World’s Leading Mergers And Acquisitions Lawyers - 6th Ed 2008.
Trusts Practice
Vexed Question
Our lawyers featured prominently in the recent publication PLC Which Lawyer? Yearbook Singapore
2008. We were singled out as the leading firm in the area of dispute resolution, and as a highly
recommended firm in corporate real estate, corporate / M&A and intellectual property. Steven Chong
SC, Patrick Ang and Christina Ng also came highly recommended for their respective works in dispute
resolution, restructuring and insolvency, and tax. We set out further details in the table below.
Area Of Practice
Recognition
Banking & Finance
Recommended Firm
Singapore Law
Competition / Anti-Trust
Recognised lawyers – Kala Anandarajah, Andrew CL Ong
Corporate Real Estate
Highly recommended firm
Disclosure Of
By Professional
Corporate / M&A
Dispute Resolution
Leading firm
Public Private
– The Process
Recognised lawyer – Lee Lay See
Highly recommended lawyer – Steven Chong SC
Recommended lawyer – Quentin Loh SC
Intellectual Property
Recommended lawyer – Lau Kok Keng
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Area Of Practice
Recognition
Investment Funds
Recommended firm
Life Science
Recommended lawyer – Lim Wee Hann
Private Equity / Venture Capital
Recommended lawyers – Wong Kok Hoe, Evelyn Wee
Restructuring & Insolvency
Highly recommended lawyer – Patrick Ang
Tax
Highly recommended lawyer – Christina Ng
Recommended - Yeoh Lian Chuan
Recommended - Stacy Choong
Recognised lawyer – Soon Choo Hock
Rajah & Tann LLP has also been ranked tier 3 in Asia Law & Practice – IP Profiles 2008, a guide to
the world’s intellectual property advisers.
R&T LLP Launches Association With Malaysian Law Firm
Rajah & Tann LLP officially launched an association with Malaysian law firm, Kamilah & Chong
(‘K&C’). This is in line with the Firm’s ambition to expand regionally and it is a mark of our progress
in the Malaysian market. The principal partners of K&C are Chong Yee Leong, Jainil Bhandari
and Kamilah Kasim, who are also partners of Rajah & Tann LLP. Rajah & Tann LLP and K&C will
be working very closely to provide seamless service to Malaysian clients requiring international
expertise and international clients venturing into Malaysia.
The focus of K&C is on the practice areas of International Arbitration, Shipping, Corporate,
Telecommunications and Islamic Financing. K&C is conveniently located in KL Sentral and our office
building is just across the road from the KLIA Express departure hall. K&C’s address and contact
numbers are as follows:
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Address
: Suite 3B-16-7, Level 16, Block 3B Plaza Sentral, Jalan Stesen Sentral 5
Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia
Main Line
: 03 22788311
Fax Number : 03 22738322
Major Projects Group
Recently, in March 2008, a new Major Projects Group to spearhead the Firm’s objective of expanding
its business in the international major projects arena was set up. The Group is headed by Amanda
Davidson, a highly-renowned projects lawyer with over 20 years experience in Australia and
Asia in construction and major projects. She was a senior partner with one of Australia’s leading
international law firms. Amanda was recognised in the Asia Pacific Legal 500 publication as one
of the ten top leading practitioners in construction law, and is widely recognised there as a leader
in her field. Amanda has extensive experience in advising on all aspects of major projects across a
range of industries including transport, water and wastewater, construction, roads, tunnel, power,
defence mining and telecommunications.
The Major Projects Group comprises specialist lawyers from a range of legal practices within
the Firm. The team includes lawyers with expertise in construction, infrastructure, engineering,
intellectual property and competition, banking, finance, corporate, environmental law and taxation
in Singapore and regionally. The lawyers within this Group are recognised for their ability to advise
on all aspects of major projects since the team has a profound understanding of the legal, technical
and commercial intricacies involved in such projects. The Group has already obtained mandates for
some significant major projects and is successfully competing directly with international firms for
this work.
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R&T Corporate Services Pte Ltd Among Pioneer Group Of Continuing
Sponsors For Catalist
We are also proud to inform our clients and friends that R&T Corporate Services Pte Ltd, a subsidiary
of Rajah & Tann LLP, is among the pioneer batch of approved continuing sponsors for Catalist,
a new sponsor-supervised board recently launched by the SGX for local and international fastgrowing companies. Helmed by experienced practitioners, R&T Corporate Services Pte Ltd provides
a suite of corporate and continuing sponsor services to both domestic and international businesses
in a comprehensive range of industries.
Recent Major Deals And Transactions
Our lawyers from the non-dispute practices, including the Corporate and Capital Markets Practice,
the iTec Practice, and the Competition & Trade Law Practice have been involved in various significant
transactions for the first half of the year.
Goh Kian Hwee, Cynthia Goh and Dorothy Tan are acting for Hong Leong Asia Ltd (‘HLA’) in the
proposed sale of the group’s building materials business to Tasek Corporation Berhad (‘Tasek’), its
associated company which is listed on Bursa Malaysia Securities Berhad, for an aggregate consideration
of S$323.5 million which is to be satisfied by the issue and allotment to HLA of approximately
212.2 million fully-paid new ordinary shares of RM1.00 each in the capital of Tasek. This represents
approximately 53.5% of the enlarged issued share capital of Tasek. Following the completion of the
transaction, the HLA group will have a shareholding interest of approximately 68.3% of the enlarged
issued share capital of Tasek and Tasek will become a subsidiary of the HLA group.
Together with Lawrence Tan and Soh Chai Lih, the team has also recently acted for Knowledge Two
Investment Pte Ltd (‘KTI’), a wholly-owned subsidiary of Lee Latex (Pte) Limited, in its competing
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mandatory conditional cash offer to acquire all the issued ordinary shares in the capital of The
Straits Trading Company Limited. This offer was made in competition to an earlier offer by The
Cairns Pte Ltd. Based on the offer price, the competing offer by KTI valued The Straits Trading
Company Limited at approximately S$2.13 billion.
Kian Hwee, Lawrence Tan, Yanni Long, Chai Lih, and Dorothy acted for Somerset Capital Pte
Ltd (‘Somerset Capital’), a wholly-owned subsidiary of CapitaLand Limited, in connection with
its voluntary unconditional cash offer to acquire all the shares in The Ascott Group Limited, other
than those already held by the Somerset Capital and its related companies. The voluntary offer
was followed by the compulsory acquisition by Somerset Capital of the shares of the remaining
shareholders who did not accept the offer, resulting in the successful privatisation of The Ascott
Group Limited. Based on the offer price of S$1.73 for each share, the offer values The Ascott
Group Limited at approximately S$2.78 billion.
Serene Yeo, Ng Sey Ming, Chai Lih and Dexter Chee were the solicitors to Yongmao Holdings
Limited (‘Yongmao’) in connection with its listing and quotation on the Mainboard of the SGX-ST.
The total invitation proceeds amount to approximately S$39 million. They also advised Yongmao
on its pre-IPO restructuring involving the S$18.7 million acquisition by Yongmao of a 70% equity
interest in FSYM Construction, a PRC company which designs, manufactures and sells towercranes
and towercrane components and accessories, and on a related convertible loan to Yongmao to
fund such acquisition.
Wong Kok Hoe, Howard Cheam and Yeo Khung Chye acted as solicitors of Li Heng Chemical Fibre
Technologies Limited (‘Li Heng’), a company incorporated in Bermuda, in its listing on Official List of the
SGX-ST. Li Heng is principally engaged in the manufacture and sale of high-end nylon yarn products
in the PRC. The net proceeds of the invitation amounted to approximately S$305.3 million.
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Kok Hoe, Sharon Tan and Janet Low were the solicitors to CentraLand Limited (‘CentraLand’) in
connection with its listing and quotation on the Mainboard of the SGX-ST. The IPO was launched
on 22 January 2008. CentraLand, a premium brand property developer based in Zhengzhou city in
the People’s Republic of China, raised about S$122.5 million.
Sin Chei Liang acted as counsel to Holcim Singapore Pte Ltd in a joint venture between Holcim
Singapore Pte Ltd, a subsidiary of the Holcim group, and ecoWise Holdings Limited, a company
listed on Catalist, for the operation of a used copper slag recycling and processing plant and a
joint research and development facility to develop alternative sources of fuels and raw materials.
Holcim and ecoWise will co-own a company, ecoWise Materials Pte Ltd, which will maintain
and operate an industrial materials recycling and processing plant, for the purpose of recycling
and processing used copper slag in Singapore. As part of the joint venture arrangements,
ecoWise Materials Pte Ltd will also establish a research and development facility to develop
alternative sources of fuels and raw materials. Under the joint venture, Holcim and ecoWise
Holdings Limited’s subsidiary will also have exclusive rights to off-take the recycled copper slag
from ecoWise Materials Pte Ltd.
Cheong Chuh Feng, Howard Cheam and Tan Mui Hui acted as Legal Advisers to China Zaino
International Ltd (‘Zaino’) as to Singapore Law in connection with the listing of Zaino, a PRC
company incorporated in Bermuda in the business of designing, developing, manufacturing and
selling backpacks and luggage. The net proceeds of the offering amounted to approximately S$80.5
million. The IPO was made by way of an Offering in respect of 145,000,000 ordinary shares of
Zaino at S$0.001 each by way of public offer and placement of 2,000,000 Offer Shares at S$0.60
and 143,000,000 Placement Shares at S$0.60, respectively. Other professionals involved in the
transaction were Stirling Coleman Capital Limited and DBS Bank Ltd (Joint Issue Managers), Stirling
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Coleman Capital Limited (Bookrunner, Placement Agent and Underwriter), Shook Lin & Bok LLP
(Solicitors to the Joint Issue Managers), GFE Law Office (Legal Advisors on PRC law), Conyers Dill
and Pearman (Legal Advisors to the Company on Bermuda law), and Foo Kon Tan Grant Thornton
(Auditors and Reporting Accountants).
Christina Ng and Jocelyn Ng acted for Vita Holdings Limited in the mandatory conditional cash
offers by Chong Thim Pheng for the issued shares in the capital of and all warrants issued by Vita
Holdings Limited.
Kala Anandarajah, Dominique Lombardi and Corinne Chew from the Competition and Trade Law
Practice Group acted for Chartered Semiconductor Manufacturing Ltd (‘Chartered’) and Hitachi
Semiconductor Singapore Pte Ltd (‘Hitachi’) in seeking clearance from the Competition Commission
of Singapore (‘CCS’) of Chartered’s acquisition of 100% of the shares held by Hitachi Ltd and
Hitachi Asia Ltd in Hitachi. Both Chartered and Hitachi are in the business of providing foundry
services to semiconductor manufacturers. Chartered being the biggest wafer manufacturer and
provider of wafer foundry services in Singapore, its merger with Hitachi triggered the thresholds
indicating a possible substantial lessening of competition (‘SLC’) depending on the market definition
adopted. Given that a merger that may result in SLC in any market in Singapore is prohibited,
parties sought clearance from the CCS that even though SLC-indicating thresholds were possibly
crossed, the merger would not result in any lessening of competition in the relevant markets and
could, therefore, be proceeded with. The CCS cleared the deal within thirty days from the day of
our application for clearance.
Lim Wee Hann and Tan Chon Beng of the Corporate and Capital Markets Practice Group worked
on the merger of the two companies.
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Kala and Dominique also successfully acted for Network For Electronic Transfers (Singapore) Pte Ltd
(‘NETS’) in a Competition Commission review of a Programme that had been introduced for various
merchants, following a complaint by the Consumers Association of Singapore (‘CASE’).
Lau Kok Keng, from the iTec Practice Group, assisted by Charissa Soh, successfully acted for YCT
Import & Export Pte Ltd (‘YCT’), a local exclusive licensee of the ‘Rooster’ trade mark in respect of
cordyceps, in resisting an application by Wing Joo Loong Ginseng Hong (S) Pte Ltd, a local distributor
of traditional Chinese medicinal and herbal products, for the trade mark to be revoked and / or
invalidated by the High Court of Singapore. ‘Rooster’ is a well-established brand of cordyceps from
China which has a history dating back to the 1960s. Wing Joo Loong Ginseng Hong (S) Pte Ltd, who
were ordered to pay costs to YCT, are appealing against this decision to the Court of Appeal.
Significant Disputes Handled
Our disputes-based lawyers from the Commercial Litigation Practice, the International Arbitration
Practice, and the Appeals and Issues Practice continue to handle more notable matters in the legal
circle.
Sundaresh Menon SC is lead counsel in the team acting for SingTel and SingTel Mobile in their
defence against the ruling of the Indonesian competition watchdog Business Competition Supervisory
Commission (‘KPPU’) that SingTel had breached competition laws and also in related litigation.
Menon also led a team of lawyers including Ronald Choo, Sim Kwan Kiat, Dawn Tan, Kelvin Poon
and Paul Tan in an appeal in the landmark case of Beckkett Pte Ltd v Deutsche Bank and Dianlia
Setyamukti. The Firm acted for Beckkett. The case has its roots in the Asian financial crisis and
involved Deutsche Bank enforcing the security it had over a basket of shares that Beckkett variously
pledged and / or guaranteed for a loan of US$100 million; and thereafter selling the shares to
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Dianlia. The case against Deutsche Bank is that in the enforcement of the security, Deutsche
breached its duties as a pledgor / guarantor of the shares, and it sold the shares significantly below
their true market value. Thus, it should pay Beckkett the difference between the current market
value of the shares and the sale price. The case against Dianlia is that it procured and therefore
knew of Deutsche Bank’s breaches. Accordingly, the sale of the shares to Dianlia should be set
aside. Beckkett also alleges that there was a conspiracy between Deutsche Bank and Dianlia to
injure Beckkett. After a year-long trial, the Singapore High Court held that Deutsche Bank had
breached its duties but refused to award substantial damages. It did not find that Dianlia knew of
the breaches or was part of a conspiracy. The appeal by Beckkett was against the latter findings.
The Court of Appeal has reserved judgment.
Menon, Aurill Kam, Dawn, Disa Sim, Lee Eng Beng SC, Tammy Low, Paul, Preeti Bhagnani and
Loke Pei Shan are acting for BNP Paribas in presenting a statutory demand on Jurong Shipyard Pte
Ltd (‘JSPL’) for the payment of amounts due pursuant to the termination of a number of foreign
exchange derivative transactions. JSPL filed an application to restrain presentation of the winding
up petition on the basis that the transactions were unauthorised and not valid or binding. The
amount is approximately US$51,000,000.
Andre Yeap SC, Dawn Tan and Danny Ong are acting for a subsidiary of CapitaLand Limited, Ankerite
Pte Ltd (‘Ankerite’), in a dispute involving the collective sale of Gillman Heights Condominium
(‘Gillman Heights’). The Strata Titles Board (‘STB’) approved the application by the majority owners
for an order for the collective sale of Gillman Heights on 21 December 2007. The objectors appealed
to the High Court pursuant to section 98 of the Building Maintenance and Strata Management Act,
raising various issues of law for determination by the High Court, and praying for the STB order to be
reversed and the application for a collective sale order to be dismissed. Ankerite applied to and was
allowed by the Court to intervene in the proceedings wherein they alleged that the Collective Sale
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Agreement had expired prior to the approval granted by the STB. Ankerite has since commenced
proceedings against this group for breach of contract.
Andre, Adrian Wong and Dominic Chan defended Louise Wiryadi and her sons, who are
beneficiaries of the estate of a deceased Indonesian businessman in a High Court claim by the
foreign executrix for the delivery of certain assets retained by the clients in Singapore. The assets
in question were alleged to be held on resulting trust for the deceased and valued at more than
S$50 million. Clients have, in turn, brought a counterclaim against the executrix for accounts
and inquiries into the estate and for an order for distribution of assets. This matter generated
complex private international law issues as well as questions of Indonesian as well as Australian
law given that concurrent proceedings have been commenced in various jurisdictions between the
parties. In this case, Murakami Takako v Wiryadi Louise Maria and Others [2008] SGHC 47, Andrew
Ang J delivered an insightful judgment involving the Mocambique rule and the ‘personal equities’
exception in favour of our clients.
Andre, Adrian and Dominic are also acting for United Engineers (Singapore) Pte Ltd, the subsidiary
of a listed company whose ex-employee had received bribes over a period of more than ten years.
Judgment against the briber as well as the corrupt employee was obtained pursuant to admissions
contained in their pleadings in an earlier action in 2004. The present proceedings were subsequently
commenced by the briber against the clients for work done in relation to the supply and installation
of fire protection systems which generated novel questions of law, viz. the effect of illegality on the
bribers’ claim, and in particular, whether a claim can be brought on a contract tainted by bribery.
The claim amount was about S$500,000.
Andre, Lai Yew Fei and Dominic represented the Law Society of Singapore in a disciplinary proceedings
against Norain Abu Bakar, Ruby Tan, Peter Chua. Peter Chua acted for purported attorneys (agents)
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of some of the beneficiaries in the Basharahil estate. Norain and Ruby acted for purchasers of
properties owned by the estate. The properties were sold by the Public Trustee as trustee of the
estate and the proceeds were paid into court. In the course of the action, several judges had made
various orders whose purpose was that any beneficiary or party seeking payment out from court
of the proceeds should notify all other interested parties so that they would have the opportunity
to contest the claims. The three lawyers were aware of these orders being made. Norain and Ruby
filed an application for payment out of the proceeds in a separate action and did not notify other
beneficiaries / parties except for Peter Chua’s client. Peter Chua attended the hearing and informed
the court that his client had no instructions on the applications. Part of the proceeds were then paid
out and the true beneficiaries entitled to this portion of the sale proceeds were thus deprived of their
entitlement. These disciplinary proceedings before the Court of 3 Judges followed upon a 26-day
hearing pursuant to a complaint made by Justice V K Rajah (as he then was) in relation to the conduct
of Norain Abu Bakar, Tuby Tan and Peter Chua. Judgment was reserved.
Chandra Mohan and Jerome Robert acted successfully for several international foundations in
resisting an application grounded on state immunity by the Republic of the Philippines in respect of a
sum approximately US$29.4 million being interpleaded in Singapore. It was alleged by the Philippine
Government that the funds were monies siphoned off by former President Ferdinand Marcos.
Francis Xavier, Jerome, Ho Hua Chyi and Dawn Wee successfully acted for American Express Bank
Ltd (‘Bank’), the Defendant and the Respondent in the appeal. The Plaintiff had executed a third
party charge over her account with the Bank in favour of T. The Plaintiff’s case on appeal was that
the Bank, knowing that the Plaintiff’s son-in-law, T, was her agent, had entered into or continued
with a remunerated referral arrangement with T which the Plaintiff alleged involved duties which
were inconsistent to that owed by T to her and therefore her account with the Bank should be
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set aside. The Plaintiff sought leave to argue the new point on appeal. As this case had not been
pleaded or advanced below, the Plaintiff also filed three applications seeking that the court allow
the Plaintiff to amend her claim, adduce new evidence on the new point and / or grant a re-trial. It
was alleged that this new angle on the case arose so late in the day because of a document which
had only been disclosed by the Bank at the trial of the action. The Court of Appeal dismissed the
Plaintiff’s appeal and the applications.
Gregory Vijayendran and Prakash Pillai are acting for The Stansfield Group Pte Ltd in a claim for
a declaration that CASE’s suspension, on or around 20 November 2005, of Stansfield College
and Singapore Institute of Commerce from the CaseTrust Membership was unlawful and / or
in breach of contract and for damages to be assessed for breach of contract. Kala Anandarajah
and Dominique Lombardi from the Competition and Trade Law Practice Group are acting in the
concurrent complaint lodged with the Competition Commission of Singapore.
Steven Chong SC and Gary Low from the Admiralty and Shipping Practice Group acted for Far
Eastern Shipping Co (‘FESCO’), the Owners of the vessel ‘Vasiliy Golovnin’ in respect of an arrest
of the subject vessel by Credit Agricole and Banque Cantonale de Geneve for the same claims
previously adjudicated upon by a Togolese court. The arrest was set aside by the High Court without
awarding damages for wrongful arrest. The matter went on appeal and cross-appeal before the
Court of Appeal on 18 February 2008, and a judgment is anticipated shortly.
Toh Kian Sing SC and Kendall Tan were instructed to advise and act for LIG Insurance Co., Ltd (Seoul)
and the Owners of the vessel ‘Duk Young Ho’ in respect of the losses / claims of the Owners of ‘Duk
Young Ho’ arising from a collision with ‘MH Thamrin PB 1600’ off Shanghai in April 2006. An arrest
of the opponent vessel, foreign government-owned ship ‘MH Thamrin PB 1600’, was effected in the
course of which interesting considerations of sovereign immunity were raised and dealt with.
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Kian Sing and Philip Tay were likewise instructed by an oil major in relation to a charterparty dispute
involving an accommodation barge which was to deploy in an oil field in Vietnam. Kian Sing
was also instructed on a massive dispute involving an allegedly fraudulent transfer of several bulk
carriers with a total worth of about US$200 million.
Additionally, Leong Kah Wah and Koh See Bin acted on the following:
• Acted for M/s Hill Dickinson LLP and their clients Sunwoo Merchant Marine in an arrest of a bulk
carrier YONG XING MEN (‘YXM’) in Singapore to obtain security in the sum of US$10 million for
Sunwoo’s claim for damages arising out of a charterparty, which arrest led to a serious dispute
as to the market valuation of the vessel YXM. The dispute on valuation was eventually resolved
after both sides relied on expert shipbroking evidence at a hearing in the Singapore Courts to
determine the market value of the vessel and the Singapore Court took the mid-point between
the two experts’ valuation as a fair market value.
• Acted for Seatrek Trans Pte Ltd (‘Seatrek’), disponent owners of the vessel MV STARTEC against
time charterers, Regalindo, for their repudiation of the time charterparty. We assisted clients in
instructing New York (‘NY’) lawyers in obtaining a Rule B attachment order for about US$3.75
million and Regalindo challenged the attachment in NY. Regalindo also applied to the Singapore
Courts for an anti-suit injunction against Seatrek and we acted for the clients in dealing with the
challenges by Regalindo on both fronts. The case is still pending.
Together with Tara Davenport, Kah Wah and See Bin acted for UMCi in the concluding second
tranche of a trial of a marine insurance claim brought by UMCi against Tokyo Marine in respect
of a precision semi-conductor manufacturing machine damaged in the course of air transit, and
the underwriters repudiated liability. On 15 April, at the conclusion of the second tranche of trial,
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the Singapore High Court found in favour of UMCi and awarded them final judgment of US$1.25
million, plus interest and costs.
Kendall also acted on the following matters:
• Acted for PT Indah Kiat Pulp & Paper of the Sinar Mas Group (a major paper and pulp producer in
Indonesia), and their cargo underwriters. The clients were owners of the cargo shipped on board
a vessel which was lost overboard during a voyage in Indonesia. The dispute was with the cargo
reinsurers, in respect of non-payment of a claim for substantial loss of the cargo.
• Acted for the Iranian Offshore Engineering & Construction Company, who were buyers of an
oil drilling jack-up rig. A dispute arose in the performance of the contract for sale & purchase
with the owners / sellers of the oil-drilling jack-up rig / vessel. We were instructed to advise and
assume overall conduct of the dispute which involved a substantial claim by the clients.
Conference On Indonesian Business Law
Rajah & Tann LLP organised a Conference on Indonesian Business Law at the Swissôtel The Stamford
on 24 January 2008. More than 150 executives and professionals from various industries attended
this event.
Our Andre Yeap SC delivered his Opening Address, afterwhich the Indonesian Ambassador to
Singapore, His Excellency, Mr Wardana continued with his speech including an introduction to
doing business in Indonesia.
Keynote Speaker, Mr Muhammad Lutfi, Chairman of the Indonesian Capital Investment Coordinating
Board or Badan Koordinasi Penanaman Modal (‘BKPM’), also spoke on the development of
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Indonesia’s investment strategies. As a government agency which has jurisdiction over investment
policies in Indonesia, BKPM helps ensure that law enforcement policies are adhered to in both the
foreign and domestic investment aspects.
Mr Lutfi’s speech also highlighted the key aspects of the new investment law in Indonesia. The main
features of his speech included discussions on equal treatment, minimum capital requirements,
repatriation of investment and profits, legal guarantees, dispute settlements, and investment
services.
Mr Lutfi also explained the concept of a ‘one-stop’ service, so as to speed up the process of
applications and approvals in relation to various business operations, as well as to reduce unnecessary
red tape. This service includes personal consultation for interested investors and covers both central
and regional investment markets.
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The Conference was also attended by several entrepreneurs, some of whom were invited to share
their business experience. They are as follows:
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• Mrs Praktimia Semiawan, Director of Finance (PT Indonesia Power); and
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• Mr Tony Wenas, Senior Vice President of Legal, Tax and External Affairs (PT Freeport, Indonesia);
• Mr M S Sembiring, Trading and Membership Director (Jakarta Stock Exchange).
Susan Paat of the Indonesian Practice closed the Conference with a speech sharing her experience
involving various legal key points of investment in Indonesia.
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Relocation Of Our Shanghai Office
Rajah & Tann LLP’s Shanghai Office has re-located in May 2008 to larger premises to accommodate
the growth of our expanding China practice. The new location in Shui On Plaza, adjacent to
Shanghai’s famed Xintiandi, will be even more convenient for our clients and business associates.
This move will also bring us closer to Singapore agencies such as Singapore Tourism Board, IE
Singapore, EDB and Contact Singapore, as we will be located on the same floor as these trade and
investment promotion agencies. Our new address and contact details in Shanghai are as follows:
Address
: 上海市淮海中路333号瑞安广场19楼1905-1906室
Unit 1905-1906, Shui On Plaza, 333 Huai Hai Middle Road, Shanghai
China 200021
Main Line
: (86) 21 6120 8818
Fax Number : (86) 21 6120 8820
Publications
Arnold Tan from the Corporate & Capital Markets Practice Group wrote the chapter on ‘The
Regulation of Hedge Funds in Singapore’, in the third edition of the book titled ‘How To Start
And Grow A Hedge Fund In Asia’. The book, sponsored by Credit Suisse, Deacons and Ernst &
Young, brings together the latest information on market developments, as well as a country-bycountry analysis of the regulatory frameworks governing the marketing of such funds.’
We have also written for a report which addresses employment issues in transfers of undertakings.
Kala Anandarajah and Hazel Galimba Guiling contributed the Singapore chapter of ‘Employment
Issues On A Transfer Of Business: A Regional Perspective’, a report that tackles various employment
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issues on a transfer of business involving multiple jurisdictions. The report is a coordinated effort
by several leading law firms in the region, most of which are members of the Employment
Law Alliance (‘ELA’). ELA is an organisation comprising 2,000 leading employment and labour
lawyers from more than 15 nations. Please contact the Knowledge & Risk Management team at
eOASIS@rajahtann.com if you would like a copy of the report.
Concluding Words
Rajah & Tann LLP continues its remarkable feat to attract the top talent in the legal market.
Coupled with the numerous recognitions it has received as a result of audited research carried
out by independent legal publications and directories, its testimony of its leading practices is wellplaced to provide clients with cutting-edge services.
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9th Lunchtime Seminar Series
Our annual Lunchtime Seminar Series for 2008 kicked off on 24 April 2008 with a talk on ‘Recent
Developments In International Arbitration Law’ by the Firm’s International Arbitration Practice
Group. Now in its 9th year, this popular seminar series provides a wide range of topics of current
legal and business interest to clients and friends. The speakers come from the various Practice
Groups of the Firm who share their expertise, experience and insights in their respective areas of
specialisation.
Presentations are always interactive with questions asked as the session progresses or at the end.
The seminar series, to last until September this year, also offers opportunities for participants to
network or simply catch up with former colleagues or schoolmates.
The interesting topics lined up for our seminar include ‘What Duties Does A Creditor Owe To His
Fellow Creditors?’ by the Business Finance & Insolvency Practice Group, ‘New Licensing Regulation
For All Builders: Its Effect And Implications’ by the Infrastructure & Major Projects Practice Group,
and ‘Recent Developments In Singapore Maritime Law’ by the Admiralty & Shipping Practice
Group.
For a detailed list of all the upcoming seminars, please see the box below. You can register for any
one of the seminars online at http://eOASIS.rajahtann.com. We may also have additional specialised
seminars from time to time. We will keep you all posted of any developments relating to this.
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Date
Topic
24 April
Recent Developments In International Arbitration Law
By International Arbitration Practice Group
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8 May
A Practical Review Of Developments In Competition & Merger Laws
By Competition & Trade Law Practice Group
15 May
What Duties Does A Creditor Owe To His Fellow Creditors?
By Business Finance & Insolvency Practice Group
29 May
New Licensing Regulation For All Builders: Its Effect And Implications
By Infrastructure & Major Projects Practice Group
26 June
Recent Legal Developments In New Media – Impact On The IP Paradigm
By iTec Practice Group
3 July
Insider Trading
By Commercial Litigation Practice Group
17 July
Indian Infrastructure – A Review
By South Asia Practice Group
31 July
Recent Developments In Singapore Maritime Law
By Admiralty & Shipping Practice Group
14 August
Developments In Indonesian Business Laws
By Indonesian Practice Group
18 September
Recent Case-Law Development Impacting The Evidence Act
By Commercial Litigation Practice Group
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Tax, Private Wealth & Trusts Practice
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Rajah & Tann LLP boosts its Tax, Private Wealth & Trusts Practice. Mr Yeoh Lian Chuan and Ms
Stacy Choong from Allen & Gledhill LLP and Drew & Napier LLC, respectively, have joined Rajah &
Tann LLP as partners. Both are leading tax and private wealth practitioners, each with more than
a dozen years’ specialist experience.
Associate Professor Stephen Phua, a leading tax academic from the National University of Singapore,
has also joined the Firm as a tax consultant.
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The three new specialists will join the Firm’s existing tax partners Soon Choo Hock and Christina
Ng, and its trust practitioner Ronald Choo.
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Standing (L-R): Stephen Phua, Soon Choo Hock, Ronald Choo, Yeoh Lian Chuan; Seated: Stacy Choong, Christina Ng
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With the new additions, the Firm will boast one of the strongest tax practices in Singapore, with
members having more than 80 years of combined tax experience. The Firm’s tax practice is a full
service practice covering all areas of taxation, but with particular focus on the following:
• planning and documentation of complex corporate transactions and structures;
• taxation matters involving the financial services, transport and infrastructure sectors;
• resolution of tax controversies; and
• goods and services tax.
Working closely with the Firm’s many specialists in other practice areas (including financial services
regulation, banking, litigation and real estate), our Tax, Private Wealth and Trusts Practice advises
high net worth individuals, as well as financial institutions and professional trustees on a full range
of matters, including the following:
• integrated tax, trusts and estate wealth planning & structuring;
• drafting and administration of various types of trusts;
• establishment of structures for family governance and asset holding;
• wills & probate;
• preparation of documentation for private banks;
• advising on, structuring and documenting investments into various kinds of assets including
structured products;
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• philanthropy and charitable giving;
• immigration;
• real estate; and
• family law.
The credentials of our new Tax, Private Wealth & Trusts specialists are set out below.
Yeoh Lian Chuan
Lian Chuan graduated from King’s College, London in 1992, qualified as a Barrister-atLaw at Lincoln’s Inn in 1993 and was called to the Singapore Bar in 1994.
Lian Chuan has been a tax practitioner for more than 12 years and focuses primarily
on tax structuring and planning advice, and indirect tax. He has particular expertise in the areas
of corporate transactions and financial services, bringing to his work in tax law his extensive
experience in corporate finance and commercial law gleaned from his time with leading local and
international law firms.
In addition, from 1998 to 2001, Lian Chuan was a Deputy Director in the Financial Centre
Development Department of the Monetary Authority of Singapore where he headed the Tax Unit.
Lian Chuan has also worked extensively on a number of areas of financial sector policy including
liberalisation, private banking and wealth management, employee savings and the trust industry.
Before joining Rajah & Tann LLP in June 2008, Lian Chuan was a partner in the Financial Services
Department of Allen & Gledhill LLP for 6 ½ years.
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Lian Chuan also advises a variety of clients on financial services regulatory matters.
Lian Chuan is recommended by the following independent international journals:
• Who’s Who Legal - Singapore 2008 for Corporate Tax Practice, described as being ‘as
knowledgeable as you can get when it comes to Singapore taxation’;
• The Practical Law Company’s Which Lawyer? Yearbook (2008); and
• Best Lawyers 2008.
Lian Chuan is a member of the International Tax Planning Association, the International Fiscal
Association, the Society of Trust and Estate Practitioners (‘STEP’) and the Singapore Trustees
Association.
Stacy Choong
Stacy commenced her tax and trust practice upon graduation from the National
University of Singapore in 1994. She is admitted to the Singapore Bar (1995) and the
New York Bar (2001) and has practiced in the United States.
Stacy advises on all aspects of tax laws and has substantial experience in providing tax planning
and structuring advice in connection with a wide range of corporate transactions. She has also
built an extensive tax dispute resolution practice including the obtaining of tax rulings, liaision and
negotiations with tax authorities and the handling of tax litigation.
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Stacy is also recognised for her private wealth and trust practice. She advises on trusts for both
commercial and family / private purposes and also advises charities, non-profit organisations and
foundations.
Stacy is listed in the following independent legal journals:
• Best Lawyers 2008 in the specialties of Tax & Trust and Estates;
• Who’s Who Legal – Singapore 2008 for Corporate Tax; and
• The Practical Law Company’s Which Lawyer? Yearbook (2006, 2007 and 2008) in the area of
Tax Practice.
Stephen Phua
Stephen has taught at university level in the area of tax law for over 18 years.
In that time, Stephen has also been a tax consultant for and has undertaken numerous
projects with government departments.
For 10 years from 1996, Stephen served on the Singapore Income Tax Board of Review. He remains
a member of the GST Board of Review, the Valuation Review Board, and the Ministry of Finance’s
Tax Advisory Group. He was Director for the Centre for Commercial Law Studies (‘CCLS’) from 2001
to 2005, and was recently appointed an examiner at The Chartered Institute of Taxation, London.
He is a member of the Steering Group of the INTR, Centre for Tax Policy and Administration, OECD.
Stephen has held visiting / teaching positions in universities such as Harvard University, New York
University and University of British Columbia and was a programme advisor to the International Tax
and Investment Centre in Washington (2007).
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Besides numerous conference papers and articles in refereed journals, Stephen’s publications include
being Editor of two books: ‘Recent Developments in Financial Regulation and Capital Markets’
(2003, LexisNexis Butterworths) and ‘Excise Taxation in Asia’ (2007, CCLS, Faculty of Law, NUS).
We also set out in the following paragraphs the credentials of our existing Tax, Private Wealth &
Trust lawyers.
Soon Choo Hock
Choo Hock brings with him over two decades’ practice experience in banking, corporate
and tax law in addition to seven years of lecturing on revenue law at the National
University of Singapore. He is also a member of the Singapore Income Tax Board of
Review.
In addition to his tax expertise, Choo Hock leads the Firm’s Corporate Banking team where he has
handled a substantial number of deals involving loans and security documentation. In particular,
he has been involved in negotiating and drafting structured finance documentation, syndicated
loan documentation and restructuring transactions. He advises American, Japanese, European and
Singapore banks and financial institutions on various aspects of banking and lending laws and
compliance issues.
Choo Hock has also been cited in various legal journals as follows:
• The Practical Law Company’s Which Lawyer? Yearbook (2006, 2007 and 2008), described as an
expert in the area of tax;
• AsiaLaw Profiles (2007), proclaimed as a recommended lawyer in the area of capital markets and
corporate finance;
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• Asia Pacific Legal 500 2006 / 2007; and
• Chambers Global The World’s Leading Lawyers (2004 / 2005).
Christina Ng
Christina has more than 18 years of legal practice experience. She specialises in energy
and infrastructure, and has been extensively involved with investments and mergers and
acquisitions in the region. To each of her transactions, she brings her knowledge and
experience in taxation which is particularly useful to clients in structuring cross-border
transactions.
Christina also regularly advises clients on a diverse range of tax planning and structuring matters.
Christina has been recommended by various independent legal journals as follows:
• The Practical Law Company’s Which Lawyer? Yearbook (2008) as a highly recommended tax
practitioner;
• International Tax Review 2004;
• Asia Pacific Legal 500 2006 / 2007 as a leading individual for Corporate / M&A;
• Who’s Who Legal - Singapore 2007 for M&A;
• Asia Pacific Legal 500 2003 / 2004 for M&A with a technology specialisation; and
• Asia Pacific Legal 500 2004 / 2005 for advising the Bharti Changi Consortium on the
modernisation and restructuring of the Mumbai and Delhi airport.
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Christina is a member of the International Tax Planning Association, the International Fiscal
Association, and the Society of Trust and Estate Practitioners (‘STEP’).
Ronald Choo
Ronald is an experienced litigator with more than 15 years of legal experience. He has
argued significant cases at all levels, including the High Court and the Court of Appeal
in the areas of banking, trusts and insolvency. Ronald was also formerly an Assistant
Registrar of the Supreme Court.
In addition to his courtroom practice, one of Ronald’s specialisations is private trusts and estate
planning. He regularly advises clients (both major international financial institutions and individuals)
on the creation of settlements and trusts as well as the subsequent operation and administration
of the trust structure, the obligations and duties of trustees, the rights of beneficiaries, changes of
trustees, and the dissolution of trusts.
Ronald is a member of the Singapore Trustees Association.
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Court Of Appeal Delivers Judgment
On The LTA-Komoco Motors Dispute
In a judgment handed down on 8 May 2008 in Registrar of Vehicles v Komoco Pte Ltd [2008] SGCA
19, the Singapore Court of Appeal set out its reasons for ordering judgment in favour of the Land
Transport Authority (‘LTA’) in a rare and landmark administrative law dispute with motor vehicle
importer, Komoco Pte Ltd (‘Komoco’). The dispute concerned Komoco’s refusal to pay outstanding
additional registration fees (‘ARF’) of over S$7 million following its under-declaration of the value
of some 17,488 imported vehicles.
Background
Under the relevant statutory framework, importers of motor vehicles declare certain information
based on which the Customs of Singapore (‘Customs’) calculates the open market value (‘OMV’) of
a vehicle. Pursuant to a policy directive in 1998 by then Minister for Finance, Dr Goh Keng Swee,
the ARF is calculated based on the OMV. As a matter of practice, the Registrar of Vehicles, now
under the LTA, adopts the OMV derived by Customs in its calculation of the ARF.
Following an audit in 2001 by Customs, Komoco was found to have under-declared the value of
its vehicles between 1999 and 2003. After a series of negotiations, Komoco accepted an offer
of composition by Customs although it continued to protest that there was no under-valuation.
Komoco did not seek to challenge Customs’ calculations in court (although such a right is afforded
under the Customs Act).
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Instead, when Komoco received a letter from the Registrar to pay ARF based on the new OMV
calculated by Customs, Komoco sought to argue that there was no underdeclaration. Having
failed to convince the Registrar in a series of correspondence, Komoco commenced proceedings
to judicially review the Registrar’s decision. A settlement followed by which the Registrar agreed to
grant Komoco a fair, reasonable and just hearing. On 10 March 2006, Komoco and its consultants
presented their arguments and evidence to the Registrar for about two hours. On 18 May 2006, the
Registrar met with Komoco to inform them that, having heard and considered their representations,
she would not depart from her practice of adopting Customs’ valuation of vehicles imported.
Komoco then proceeded to launch another round of proceedings to quash the Registrar’s decision
and compel her to re-consider her decision. Principally, Komoco argued that the Registrar’s practice
of adopting Customs’ valuations was illegal, irrational and / or unreasonable. It also contended that
the Registrar, by slavishly following that practice despite Komoco’s representations, had fettered
her discretion and / or abrogated her powers to Customs.
Decision Of The High Court
The High Court found that the Registrar’s practice of adopting Customs’ valuations was perfectly
reasonable. However, the Judge found that the Registrar had not given genuine consideration to
Komoco’s representations because she had listened to Komoco’s representations with a frame of
mind predisposed to maintaining her existing practice. The Judge further held that the Registrar
had abrogated her discretion because it appeared from a letter the Registrar wrote that her decision
whether Komoco had to pay ARF based on Customs’ post-audit valuation was ‘conditional on
further advice from Customs’.
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The Registrar’s Arguments On Appeal
On appeal, the arguments put forward on behalf of the Registrar were the following:
• The Registrar’s practice of adopting Customs’ valuations was supported by the language of the
relevant statutes, Parliament’s intention, logic and commonsense.
• The Registrar was entitled to give due regard to her practice of adopting Customs’ valuation
provided that she was prepared to depart from it in exceptional cases. In this regard, her
predisposition towards applying her practice was not automatically invalid as a matter of law and
did not constitute an unlawful fetter on her discretion.
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• Similarly, the Registrar cannot be held to have abrogated her discretion simply because she had
sought advice from Customs.
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• On the facts, the Registrar gave genuine consideration to the representations made by Komoco.
The Registrar had stated in her affidavit that she had deliberated the evidence presented by
Komoco and gave several cogent and relevant reasons for her decisions. In the absence of evidence
to the contrary, the High Court should not have doubted the Registrar’s sworn evidence.
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• There was no allegation by Komoco that it was unable to present any evidence. It had been given
the opportunity to present whatever evidence it felt necessary on 10 March 2006.
• On the evidence presented by Komoco, there were no exceptional circumstances justifying a
departure from the Registrar’s use of Customs’ valuation. In particular:
- The Registrar was entitled to accept Customs’ calculations at face value because of its expertise
and its thorough audit over two years;
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- The fact that Komoco did not challenge Customs’ calculations also supported the inference
that even it thought that Customs’ calculations were accurate;
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- It was not ambiguous what expenses were to be declared; therefore, there was no reason to
accept Komoco’s allegation that Customs’ calculations were wrong; and
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- There was nothing new that Komoco presented to the Registrar that it did not already present
to Customs.
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The Decision Of The Court Of Appeal
The Court of Appeal unanimously accepted the arguments advanced by the Registrar. Writing for
the court, Chan Sek Keong CJ held that:
• There was ‘little doubt’ that in the context of public administration, the Registrar’s practice of using
Customs’ calculations as the basis for the ARF ‘was and is the most efficient way’ of administering
the ARF scheme. The court further held that this practice possessed ‘all the attributes of good
public administration in that it is cost-effective, objective, open and transparent to all traders and
importers of motor vehicles’.
• As a matter of law, the Registrar was entitled to adhere to her practice unless Komoco could
show that its case was exceptional. However, the High Court did not discuss or explore why
Komoco’s situation was considered exceptional.
• The fact that Komoco accepted Customs’ offer of composition under protest was not an
exceptional factor; otherwise, it would ‘destroy’ the Registrar’s practice.
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• There was no question of the Registrar fettering or abrogating its discretion in this case. In using
Customs’ calculations as the basis for the ARF, the Registrar was ‘not taking instructions from
Customs. Instead, the Registrar made this decision in the exercise of her power [under the Road
Traffic (Motor Vehicles, Registration and Licensing) Rules (‘Road Traffic Rules’)] and for practical
reasons’. The arithmetical exercise of applying a fixed formula to the OMV to calculate the ARF
did not and could not possibly involve acting under the instructions of Customs.
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• Furthermore, on the facts, the Registrar gave genuine consideration to Komoco’s representations.
First, the Court of Appeal held that there was no basis to go behind the Registrar’s sworn affidavit
that she had considered Komoco’s case. Second, the reasons given by the Registrar for rejecting
Komoco’s representations were justifiable. In particular, the Court said that the Registrar was
entitled to take into account the fact that Komoco had not challenged Customs’ valuations
despite its right to do so.
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• Given that the Registrar had given genuine consideration to Komoco’s representations, ‘she
could not possibly have rejected these representations merely out of deference to Customs’.
Hence, there could have been no abrogation of discretion.
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• The Registrar in fact was not obliged to make any inquiries at all if she had a reliable means of
determining the vehicle’s OMV. In other words, the Registrar need not have given Komoco any
hearing at all ‘so long as her determination [not to hear] is not arbitrary or discriminatory’. An
importer’s right to be heard is satisfied by its ability to challenge the OMV calculated by Customs
under the Customs Act. An importer that does not avail itself of this route of redress cannot seek
to collaterally attack Customs’ calculations of the OMV before the Registrar. Otherwise, ‘the goal
of efficiency in public administration would not be advanced’.
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• Furthermore, the Government should be regarded as an ‘indivisible legal entity’ when it
discharges its executive functions and powers. Therefore, the court would not construe the
Registrar’s powers so that she was compelled to grant a fresh hearing to every motor vehicle
importer that was dissatisfied with Customs’ valuation when it should have raised a challenge
under the Customs Act.
Comments
This case represents the first direct challenge to the Registrar’s practice of using Customs’ assessment
of the OMV of a vehicle for the purpose of calculating the ARF payable since the policy directive
was announced in 1968. Komoco’s challenge also encompassed very specific challenges to the
manner in which the Registrar was supposed to have considered its representations, namely, that
the Registrar must adopt an open mind completely without regard to the virtues of maintaining
a practice in existence for the last 40 years. If Komoco had been successful, importers of motor
vehicles would have two opportunities to undermine Customs’ valuations – before Customs itself
and before the Registrar. The Registrar would have been compelled to listen to every such challenge,
even if (as in this case) no new evidence is adduced before the Registrar. As a matter of law and
common sense, the Court of Appeal’s judgment is unimpeachable and to be welcomed.
Although it is possible to read the judgment more broadly to suggest that statutory bodies in
general need not grant a hearing to complainants, probably the better reading is that the Court
of Appeal was limiting its observations to the statutory scheme before it. In this regard, it should
be noted that the statutory scheme in this case was rather unique in that there was: (a) a policy
directive from the Minister stating that the ARF should be calculated on the basis of the OMV; (b) a
provision under the Customs Act and mechanisms that permitted challenges to the calculation of
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the OMV of imported vehicles by Customs which Komoco chose not to avail themselves of; and (c)
specific statutory language in the Road Traffic Rules that did not mandate but gave the Registrar
the discretion to make ‘such inquiries, if any, as she thought fit’.
This appeal was argued by Sundaresh Menon SC, who was assisted by Simon Goh and Paul Tan.
The Appeals And Issues Practice Group
In the handling of this appeal for the Registrar of Vehicles, Rajah & Tann LLP assembled a team comprising lawyers who
had handled the matter at first instance before the High Court and lawyers who focus on appellate work.
The Appeals & Issues Practice (‘A&I Practice’) is a new practice group that the Firm is setting up to bring together a
group of lawyers who will concentrate on appellate advocacy and developing thought leadership on significant issues of
law. We believe that appellate advocacy requires a different craft from trial litigation and that in appellate work, there is
tremendous advantage to be gained by obtaining a fresh perspective from the appellate lawyer, who being unconnected
with the trial, will be able to examine the issues from a perspective that is not coloured by the trial process.
In the handling of significant appeal cases, the lawyers in the A&I Practice will work closely with the trial lawyers to
identify and frame the issues to be raised on appeal, evaluate the prospects of success of the appeal, and formulate the
arguments. Such an approach will enable us to bring together the knowledge of the facts and issues of the case, which
the trial lawyer has, with the unique insight of the appellate lawyer into the trends and philosophy that underlie the
decisions of our apex court.
For more information on the Appeals & Issues Practice, please contact:
Sundaresh Menon SC
Aurill Kam
Senior Partner
Partner
DID 6232 0240
DID 6232 0733
smenon@rajahtann.com
aurill.kam@rajahtann.com
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Insider Trading And The Vexed Question
Introduction
‘Insider trading is a curious animal: there are many more journal articles discussing what it should
be than reported cases of what it is. We all think we know what it is, yet defining it in the clear
language required of a statutory provision with criminal liability attached has proved problematic.
Most people agree that it is undesirable, yet there is still debate on precisely why it should be so
from a philosophical perspective’.
Michael Gething,
‘Insider Trading Enforcement: Where are we now and where do we go from here?’
(1998) 16 Companies and Securities Law Journal 607
There is no doubt that in Singapore, insider trading is prohibited because it gives rise to information
disparity which offends the principles of fairness and hurts the integrity of our securities markets.
At the Second Reading Speech of the Securities and Futures Bill 2001, the then Deputy Prime
Minister and Chairman, Monetary Authority of Singapore, Mr. Lee Hsien Loong, explained:
‘At the core, the mischief of insider trading lies in tilting the playing field unfairly against other market
participants. Those who knowingly have inside information should be prohibited from trading…’
Under our insider trading laws, persons in possession of non-public material price sensitive
information are prohibited from trading or procuring others to trade in the securities to which
such information relates (see sections 218(2) and 219(2) of the Securities and Futures Act (Cap
289) (‘SFA’)) and prohibited from communicating such information to others (see sections 218(3)
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and 219(3) of the SFA). Philosophically, these prohibitions are aimed at ensuring that persons who
are not seized of the same material price sensitive information are not placed at a disadvantage
when they trade with those who possess such information.
When then, is information treated, for the purposes of our insider trading legislation, to be
‘generally available’ and not just within the domain of a selected few? Since the coming into force
of Singapore’s new insider trading regime under the ‘SFA’ in 2002, there has been no litigation
brought, and hence no opportunity for judicial pronouncements to be made, on this question.
This article considers two pertinent decisions of the New South Wales Criminal Court of Appeal on
this question and suggests that there are cogent and persuasive reasons for the Singapore Courts
to adopt the approach taken in Australia.
By way of a quick overview, for an insider trading contravention to be made out, there must be
(i) possession of information of a material price sensitive nature that is not generally available;
(ii) knowledge that the information is not generally available and of a material price sensitive
nature; and (iii) the carrying out of a prohibited act whilst in possession of such material price
sensitive information (ie dealing in the relevant securities, procuring another to deal in the relevant
securities, or communication of the material price sensitive information to another) (see sections
218 and 219 of the SFA).
A comprehensive treatment of the prerequisites to make out an insider trading contravention under
the SFA is outside the scope of this article. This article looks only very briefly at when information
is regarded to be ‘generally available’, such that the operation of the insider trading prohibitions
under the SFA is not triggered.
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The test of general availability is encapsulated in section 215 of the SFA. This section, like the
Australian provision from which it was derived, ie section 1002B of the Corporations Law,
contemplates three alternative scenarios under which information is regarded to be generally
available, namely, where:
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• the information consists of readily observable matter;
• the information has been made known in a manner that would or would be likely to bring
it to the attention of persons who commonly invest in securities and a reasonable period for
dissemination has elapsed since it was so made known; or
• the information consists of deductions, conclusions or inferences made or drawn from either or
both of the information referred to in the preceding limbs.
It is noteworthy that limb (b) is expressly stated in section 215 of the SFA as ‘without limiting the
generality’ of the ‘readily observable’ limb (limb (a)).
The Decision In R v Firns
The first two limbs of the Australian equivalent of Section 215 of the SFA were considered in the
2001 New South Wales Criminal Court of Appeal (‘Court’) decision of R v Firns [2001] NSWCCA
191. In a 2-1 majority decision, it was held in Firns that if information is readily observable in
an overseas jurisdiction, the general availability test under the first limb is satisfied and it is not
necessary for the information to be also readily observable in Australia. The dissenting judge,
Carruthers AJ, was, however, of the view that the words ‘readily observable matter’ cannot be
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allowed to operate in a vacuum. In His Honour’s view, for the information to be generally available
on the basis that it consists of readily observable matter, it must at least be readily observable by
members of the Australian public.
Firns had involved a company, Carpenter Pacific Resources NL (‘Carpenter’), an Australian company
listed on the Australian stock exchange (‘ASX’). Its main business at the material time was holding
exploration licences in Papua New Guinea (‘PNG’) through wholly owned subsidiaries. One of
Carpenter’s subsidiaries had been involved in litigation where it was challenging the validity of certain
regulations in PNG which had the effect of reducing the value of its exploration licence. The subsidiary
had lost at first instance and the matter had gone on appeal to the Supreme Court of PNG. The appeal
judgment which was handed down in open court upheld the appeal and declared the regulation
invalid. Kruse, an employee of Carpenter, was present in the PNG courtroom where the judgment
was handed down. Firns (whose father was an executive director of Carpenter) received news of the
successful appeal from his father within half an hour of the judgment having been handed down.
Both Firns and Kruse purchased shares in Carpenter before the outcome of the appeal was disclosed
on ASX. Firns was convicted of insider trading whilst Kruse, who had been tried separately on the
same facts, was acquitted. Firns appealed his conviction. The principal ground of appeal turned
on whether the information used by Firns was ‘generally available’ in the sense that it consisted of
‘readily observable matter’ at the time that he purchased the shares. At the heart of the appeal was
the interpretation to be given to the expression ‘readily observable matter’.
• The Court opined that information may be readily observable even if no one in fact observed it.
In particular, the Court held that the information embodied in the PNG Supreme Court judgment
was available, understandable and accessible to a significant group of the public, namely, those
present in open court and hence, ‘readily observable’.
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• After examining both the drafting and legislative history of the provision, the Court observed
that as indicated in the opening words of the second limb (our limb (b)), the generality of the
words in the ‘readily observable’ limb (our limb (a)) is not to be limited by the second limb (our
limb (b)). The Court noted that in the ‘readily observable’ limb, the legislature had deliberately
held back from placing information under an embargo until the lapse of a fixed time or even a
reasonable time from some fixed point of actual disclosure. The ‘readily observable’ limb, the
Court held, was ‘inserted as an alternative in order not to penalise the efficient, the speedy or
the diligent – at least to the degree encompassed by the opaque ‘readily observable matter’’.
• On the question of whether ready observability had to be from the stance of the hypothetical
person ‘within Australia’, the Court noted that the statutory provision does not define the class
of persons by whom the matter is to be ‘readily observable’ and that these persons cannot be
confined to existing shareholders or even existing traders of shares on ASX. The Court stated that
in any event, the latter class is a very wide one, since traders in Australian-listed shares are not
confined to Australians, no matter how the term ‘traders of shares on ASX’ is defined. Further,
the Court observed that whilst the protection of fair trading in the Australian sharemarket is the
primary focus of the legislative scheme, a large proportion of investors in Australian corporations
are non-Australian; and a considerable proportion of the shares listed on the ASX are shares of
foreign corporations. Referring to the framework of the regime, particularly the extraterritoriality
provision in section 1002 of the Australian Corporations Law, the Court concluded that the
legislative scheme is not confined to protecting the interests of resident Australian investors or
dealings in Australian shares. This, together with the recognition of modern telecommunication
methods such as the telephone, the television, the internet (including email) and the fax, all of
which formed a part of how Australians, and particularly investors, perceived events, led the
Court to conclude that it would not be correct to test ready observability from the stance of the
hypothetical person within Australia.
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The Decision In R v Rivkin
Three years later, an interesting scenario arose for consideration in the case of R v Rivkin [2004]
NSWCCA 7.
In the Rivkin case, Mr Rivkin had, in the course of a completely unrelated transaction, received
information from Mr McGowan (the executive chairperson of Impulse Airlines) that he was
trying to ‘merge‘ Impulse Airlines with Qantas and was awaiting approval from the Australian
Competition and Consumer Commission for that deal. Within hours of that conversation, Mr
Rivkin gave instructions to his brokers to purchase Qantas shares. At trial, Mr Rivkin’s counsel
contended that the information which Mr Rivkin possessed was generally available, due to the
existence of rumours in the press about the possibility of deals being done between two of the
then four airlines operating domestically, and rumours about the possible collapse of Impulse
Airlines. However, the Prosecution was able to establish: (i) the absence of information in the media
about the proposed ‘merger’ as described by Mr McGowan to Mr Rivkin; and (ii) evidence from
the stockbroking industry to show that that there were no rumours of such a proposal prior to its
announcement. As the Prosecution’s evidence was accepted, it was unnecessary and neither the
trial judge nor the New South Wales Criminal Court of Appeal considered whether the existence
of rumours in the press about the proposed ‘merger’ resulted in the information being ‘generally
available’.
Concluding Comments
If a case on the facts of Firns came before the Singapore Courts, or if by an extension to the
facts in Rivkin, rumours or other information of a material price sensitive nature are reported in
the press in an overseas jurisdiction (particularly where such press reports are also accessible via
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internet), would the Singapore Courts regard such information to be ‘generally available’? This
writer believes that there are good grounds for arguing that the approach taken by the majority
in the Firns case is a sound one that should be followed. Such an approach would not only be
consistent with the language of our legislation but would also support the underlying policy of the
SFA which is premised on a recognition that capital markets have become increasingly sophisticated
and globalised as a result of technological advances.
Quite apart from the fact that section 215 of the SFA is in pari materia with the equivalent provision
considered in Firns, investors and corporates raising funds in Singapore’s securities markets, like
those in Australia, are not merely domestic players but include international ones. Like the
Australian regime, the Singapore insider trading regime is not confined to protecting the interests
of Singapore based investors or dealings in shares of Singapore based corporates (see section 213
of the SFA). A parochial stance that general availability should be viewed only through the eyes of
the hypothetical Singapore based investor is not only divorced from reality in the internet age but
also antithetical to the internationalisation of Singapore’s securities markets.
Significantly, Singapore has long recognised the changing financial landscape, as well as the role of
technology and the internet in opening up new opportunities for investors and Singapore’s securities
markets. It was this very recognition that prompted the slew of changes which resulted in the SFA.
As stated at the Second Reading of the Securities and Futures Bill 2001:
‘Capital markets have become increasingly sophisticated, as a result of technological advances giving rise to
competition and globalisation … Institutions no longer confine themselves to their domestic markets or their
immediate hinterland, but reach out to pools of liquidity in other countries as well. The liberalization of the
capital markets and increased competition has catalysed these processes.
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This fluid and rapidly-evolving financial landscape poses new demands on regulators. It is important that we
create a sound and transparent legal framework within which players can operate….’
DPM Lee Hsien Loong and Chairman, MAS (as he then was)
5 October 2001
Although the dissenting view of Carruthers AJ in Firns would be more protective of Singapore based
investors, having regard to the international character of our securities markets and particularly
Singapore’s positioning as an international financial centre, the better argument is that in this
technological age, general availability should be viewed through the eyes of investors, both within
and outside Singapore.
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For more information, contact:
Aurill Kam
Partner, Commercial Litigation Practice Group
DID: 6232 0733
aurill.kam@rajahtann.com
Aurill Kam is a Partner in the Firm’s Commercial Litigation Practice Group. Aurill rejoined the Firm in August 2007 after spending five years at
the Monetary Authority of Singapore (‘MAS’). Of her five years at the MAS, three and a half years were spent as Head & Director of Enforcement
where she helped to establish MAS’ then newly introduced civil penalty enforcement regime for market misconduct contraventions. During
that time, she was also involved in handling numerous high profile corporate misfeasance, insider trading, manipulation and other market
misconduct enforcement cases.
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Courts And Arbitration - A Question Of Balance?
Recent Developments In Singapore Law
Parties to international contracts do not relish suing or being sued in a foreign country. Differences
in the law, language, and legal and business culture could present decisive disadvantages. To them,
arbitration has the advantages of a relatively inexpensive, speedy and more private alternative
dispute resolution process in a neutral locale, with proceedings conducted according to familiar
and well established arbitration law. Arbitration also offers disputing parties the opportunity to
select the arbitrators, who being experts in the field, will be able to swiftly understand the issues
in an arbitration.
These benefits have led more foreign companies in Asia to include arbitration clauses in their
contracts. As such, arbitration now has a greater level of acceptance and greater enforceability
across the Asian region than ever before. Not surprisingly, there has been an increase in the
number of Asian arbitration centres and in the adoption of up to date arbitration laws by Asian
countries.
While arbitration is the preferred mode of dispute resolution, the precise role of the courts
in arbitration matters is important. The courts must strike an appropriate balance between
competing and complementary factors for and against judicial intervention. The relevant core
values of arbitration include party autonomy, finality, fairness and justice and enforceability. The
Singapore court’s answer to balancing these competing interests is to adopt a policy of minimal
intervention. In Soh Beng Tee v Fairmount Development Pte Ltd [2007] 3 SLR 86, (‘Soh Beng
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Tee’), VK Rajah JA, delivering the judgment of the Court of Appeal, explained that the court’s
policy of minimal intervention was underpinned by two principal considerations, namely, the
need to recognise the autonomy of the arbitral process by encouraging finality as well as the
need to uphold the choice of the chosen dispute method. He added that the parties, having
opted for arbitration, must be taken to have acknowledged and accepted the attendant risks of
having only a very limited right of recourse to the courts and it would be neither appropriate nor
consonant for a dissatisfied party to seek the assistance of the court to intervene on the basis
that the court is discharging an appellate function, save in the very limited circumstances that
have been statutorily condoned.
This policy of minimal judicial interference will be evident with an examination of five recent cases
of the Singapore courts.
Pre-Award Orders
The court’s approach on granting pre-award orders to the parties to a contract with an arbitration
clause will first be considered.
In NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] SGCA 8, (‘NCC’) the Court
of Appeal pointed out that while a court has concurrent jurisdiction to order interim measures,
‘the court will nevertheless scrupulously avoid usurping the functions of the arbitral tribunal in
exercising such jurisdiction and will only order interim relief where this will aid, promote and
support arbitration proceedings’. It added that whether the court’s jurisdiction is exercised under
the Arbitration Act or the International Arbitration Act (‘IAA’), the principle of limited and cautious
curial assistance applies.
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In Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR 629, the novel question of whether
the Singapore courts have jurisdiction to grant interim relief in aid of international arbitration
proceedings was considered by the Court of Appeal. Swift Fortune, a Liberian company, contracted
to purchase a vessel from Magnifica, a Panamanian company. The contract was governed by
English law and provided for arbitration in London. A delayed delivery of the vessel resulted in
Swift Fortune claiming damages for substantial losses amounting to US$ 2.5 million. Swift Fortune
applied for a Mareva Injunction to restrain Magnifica from disposing of its assets in Singapore of
up to US$ 2.5 million.
The case turned on the interpretation of clause 12(7) of the IAA, which empowered the High Court
to assist international arbitrations. The question was whether this power extended to arbitrations
which did not stipulate Singapore as the seat of arbitration (‘foreign arbitrations’) or was it limited to
arbitrations stipulating Singapore as the seat of arbitration (‘Singapore international arbitrations’).
The Court of Appeal declined comment on the policy implications behind either interpretation,
choosing instead to embark on an exercise of statutory interpretation of the IAA. It decided that
the legislative intent behind the IAA was to promote arbitration in Singapore, thereby implying a
territorial limitation on curial powers to grant interim relief.
In NCC, the fact that parties had not instituted arbitration proceedings was taken into account for
denying interim relief from the courts. In this case, NCC contracted to buy ready mixed concrete
from Alliance. Indonesia halted the sale of sand, essential to making ready mixed concrete, to
Singapore. Alliance stopped supplying concrete to NCC pending renegotiation on the price of
concrete. NCC, without having served a notice to arbitrate, applied for an interlocutory injunction
to compel Alliance to deliver concrete at the contract price. In line with the policy of minimal
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judicial interference, the court would intervene only sparingly and in very narrow circumstances.
In refusing to order the injunction, the Court of Appeal noted that there was no pressing need for
interlocutory measures. NCC had not even commenced arbitration proceedings and it could be
inferred from this that it would not suffer inordinate prejudice by waiting for the arbitral tribunal
to make a determination. In truth, NCC was using the court process for a collateral purpose for
if the injunction was granted, the court would effectively be ordering specific performance of the
contract and arbitration would have been unnecessary.
Public Policy
It is evident from PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR 567 (‘PT
Asuransi’), that any party to an international arbitration who seeks to set aside an award on the
ground of breach of Singapore’s public policy faces an uphill task. In that case, the Court of Appeal
stated that the general consensus of judicial and expert opinion is that public policy under the IAA
encompasses a narrow scope and should only operate in instances where the upholding of an
arbitral award would ‘shock the conscience’, be ‘clearly injurious to the public good’ or ‘violate the
forum’s most basic notion of morality or justice’.
In PT Asuransi, an Indonesian entity, PTA, guaranteed a series of notes (‘BI notes’). Dexia held
some of the notes which remained unpaid when they matured in 1999. In February 2000,
a noteholders’ meeting purportedly approved a debt restructuring scheme. Dexia remained
opposed to this scheme and commenced arbitration against PTA in March 2000. In June 2001,
the resolutions of the noteholders’ meeting were ratified but the tribunal was not made aware
of this till later. The first tribunal found that PTA was obliged to pay the BI notes as this
obligation was not restructured pursuant to the February 2000 meeting. PTA then commenced
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a second arbitration to declare that the June 2000 restructuring scheme was valid and binding
on all BI holders, including Dexia. The second tribunal ruled that it had no jurisdiction on
grounds that were erroneous and inconsistent with the first tribunal’s findings. PTA contended
that the second tribunal’s findings should be set aside on the ground of public policy as they
were illegal. Although the Court of Appeal dismissed PTA’s appeal on the ground there had
been no ‘award’ since the second tribunal did not decide the substance of the claim, the views
of the Court on public policy merit attention. The Court first accepted that as the legislative
policy under the IAA is to minimise curial intervention in international arbitrations, errors of
fact and law made in an arbitral decision are final and binding on the parties except in the
situations prescribed under section 24 of the IAA. The IAA will be internally inconsistent if
the public policy provision is construed to enlarge the scope of curial intervention to set aside
errors of law or fact that are not outside the scope of the arbitration. As such, errors of law
or fact per se do not engage the public policy of Singapore when they cannot be set aside for
the reasons stated in the IAA.
The above case was followed in VV v VW [2008] SGHC 11 (‘VV’) where the question was whether
the courts should, in the interest of public policy, act where costs awarded by the arbitrator are
allegedly excessive. Here, costs of S$2.8 million had been awarded in a case where the claim was
only for S$927,000. The plaintiffs, who had failed in their claim, contended, inter alia, that the
cost awarded in this case was in conflict with public policy in that it offends against the principle of
proportionality. As far as public policy and proportionality were concerned, the trial judge held that
there is no public interest involved in the legal costs of parties in one-off and private litigation and it
is not part of the public policy of Singapore to ensure that costs incurred by parties to arbitration are
assessed on the basis of any particular principle. The parties to the arbitration had contracted for
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disputes to be settled in that particular manner and the costs awarded to a successful party cannot
be considered injurious to the public good or shocking to the conscience, however unreasonable
such an award may prove to be upon examination.
It cannot be overlooked that one of the main advantages of arbitration is that it is mere costefficient than litigation. If costs are not controlled by the courts or by any other body, there is a risk
that arbitration may in some cases end up a more expensive experience for the parties. If so, this
may undermine the raison d’etre of arbitration.
Breach Of Natural Justice
As for judicial intervention for breach of natural justice rules, Prakash J in VV stated at [52] that
natural justice ‘does not mean that every conclusion that an arbitrator intends to make be put
before the parties’. In Soh Beng Tee, the Court of Appeal pointed out that applying uncritically
rules developed for High Court actions confuses and irritates the commercial community without
improving the quality of arbitral justice.
In Soh Beng Tee, Fairmount, a property developer, engaged SBT as its main contractor. SBT applied
for and was given an extension of time of five days. Fairmount terminated the contract after the
expiry of the extended deadline. The arbitrator found that Fairmount had hindered SBT’s ability
to perform the contract timeously and as the time for completion was at large, SBT was given a
reasonable time to complete the project. Fairmount argued that whether time was at large was not
an issue before the arbitrator and that rules of natural justice had been breached as it was deprived
of putting forward a case against setting time at large.
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For a start, the Court stated that for the integrity of the arbitral process and compliance with rules
of natural justice, the narrow scope expressly acknowledged under both the Arbitration Act and
the IAA must be adhered to. Thus, the Court may only intervene where there was a ‘real basis for
alleging that the arbitrator has conducted the arbitral process either irrationally or capriciously’.
VK Rajah JA noted that the court’s function is not to comb though the arbitral award assiduously
to find any fault with the arbitral process. Rather, an award should be read generously such that
only meaningful breaches of rules of natural justice resulting in prejudice are remedied. Here, all
the facts relating to the award were fully alive throughout the proceedings. As such, there was no
breach of the rules of natural justice.
The above case was followed in VV, which has been discussed above. In this case, the senior counsel
claimed S$25,000 per day as costs and the plaintiff submitted that the arbitrator’s acceptance of
the fact that such fees may be charged by leading counsel in international arbitrations without
any evidence of these fees being provided, nor any opportunity given to the plaintiffs to test that
evidence, was a breach of natural justice rules. However, Judith Prakash J ruled that the arbitrator’s
views on costs were clearly before the parties, who had every opportunity to address him on this
issue. Thus, the plaintiff’s allegation that there had been a breach of natural justice could not be
countenanced.
Conclusion
Ensuring the right amount of judicial intervention has not always been easy. In preserving the
defining aspects of arbitration, including party autonomy and finality, it is arguable that values
such as fairness and justice may suffer a concomitant circumscription, and especially so since high
thresholds need to be crossed before the principles of public policy and natural justice may be
engaged.
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In the final analysis, if party autonomy and finality are to be safeguarded, minimum intervention
by Singapore courts is unavoidable if the goal of promoting Singapore as a centre of international
arbitration is to be realised. As the Court of Appeal put it in Soh Beng Tee, ‘aggressive judicial
intervention can only result in the prolonging of the arbitral process and encourage myriad
unmeritorious challenges to arbitral award by dissatisfied parties’ and that if left unchecked,
an interventionist approach can lead to indeterminate challenges and delays as well as cause
indeterminate costs to be incurred.
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Chong Yee Leong
Martin Tan
Head, International Arbitration
Practice Group
Senior Legal Executive, International Arbitration
Practice Group
DID: 6507 9552
DID: 6507 9554
yee.leong.chong@rajahtann.com
martin.tan@rajahtann.com
Chong Yee Leong has extensive experience in international arbitration and litigation covering all aspects of commercial, energy and building
disputes, with a focus on disputes arising from heavy civil engineering contracts, power, oil and gas, marine engineering, and land transportation
projects as well as professional negligence. Yee Leong was a partner at an international law firm from 2003 to 2007 and headed the International
Litigation and Arbitration Group in Singapore before rejoining Rajah & Tann LLP in April 2007.
Martin Tan is a Senior Legal Executive with the International Arbitration Practice Group. Prior to joining Rajah & Tann LLP, he was a staff
attorney with an international law firm.
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Vexed Question
Singapore Law
Disclosure Of
By Professional
Public Private
– The Process
Disclosure Of Confidential Information By Professional
In The Pursuit Of Its Legitimate Interests
To what extent may a professional, in the pursuit of its legitimate interests, divulge confidential
information on work it had done for a former client? The Hong Kong Court of Final Appeal addressed
this very question in the recent decision of Nam Tai Electronics Inc v PricewaterhouseCoopers
(unreported, 31 January 2008). The case involves a factual scenario that would not be unfamiliar
to accounting firms and other professional advisers.
The Facts
Nam Tai Electronics Inc (‘Nam Tai’) engaged PricewaterhouseCoopers (‘PWC’) to act in a due
diligence exercise for the acquisition of a company. After conducting due diligence, PWC advised
Nam Tai against proceeding with the acquisition of the company (‘negative recommendation’).
Nam Tai nevertheless decided to acquire the company. Later, the company went into liquidation
and PWC sought appointment as its liquidators.
By that time, the relationship between Nam Tai and PWC had soured and Nam Tai, as one of
the company’s creditors, objected to PWC’s appointment as liquidators of the company. Nam
Tai contended that PWC would be placed in a position of a ‘conflict of interest’ because of its
prior involvement in the due diligence review. Nam Tai, however, did not explain the basis for its
contention.
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Disclosure Of
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In the face of Nam Tai’s objection and conscious of the keen competition for the job from
other big accounting firms, PWC launched a vigorous campaign aimed at convincing the
company’s creditors that PWC should be appointed. To this end, PWC disclosed the negative
recommendation to the company’s creditors to counter Nam Tai’s opaque contention that a
conflict situation would arise.
It was public knowledge that PWC had acted for Nam Tai in the due diligence exercise. The fact
that PWC made the negative recommendation, however, was not in the public domain before
PWC disclosed it to the company’s creditors. Nam Tai sued PWC for breach of confidence. In the
proceedings, PWC did not dispute that the negative recommendation was confidential. PWC,
nevertheless, contended that the disclosure was justified as a defensive response to Nam Tai’s
objection to its appointment as liquidator.
The Decision
The Court of Final Appeal (‘Court’) allowed Nam Tai’s claim and ordered PWC to pay Nam Tai
damages of HK$100.
In arriving at its decision, the Court applied the principle espoused by the High Court of
Australia in Esso Australia Resources Ltd v Plowman (1994) 183 CLR 10 at 36 that an obligation
of confidentiality carries with it an implied right for either party to disseminate the otherwise
confidential material where ‘disclosure of the material is fairly required for the protection of the
party’s legitimate interest’.
Public Private
– The Process
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On the facts, the Court found that PWC’s efforts in securing appointment as liquidators of
the company were undertaken as part of the firm’s ordinary professional activities, and were,
therefore, in pursuit of its legitimate interests. The disclosure of the negative recommendation
would form part of those efforts and were thus made in furtherance of PWC’s legitimate
interests.
The Court, nevertheless, decided that the disclosure was not ‘fairly required’ as a defensive response
to Nam Tai’s objection to PWC’s appointment. The Court reasoned that Nam Tai’s unexplained and
opaque contention that PWC would be in a position of conflict was capable of bearing different
meanings: while it could concern whether PWC had recommended Nam Tai’s acquisition of the
company, it was not invariably the case. Thus, PWC’s disclosure of the negative recommendation
could not be regarded as being a proper or necessary response to Nam Tai’s allegation of conflict.
For this reason, the Court held that PWC’s disclosure of the negative recommendation was
unjustified.
The Court further held that, under such circumstances, PWC should have first considered other
options such as demanding clarification or taking other steps to challenge the adverse allegation
without disclosing the subject confidential information.
Critique
It is questionable whether a demand for clarification as suggested by the Court would serve any
practical purpose within the context of PWC’s campaign to garner support for its appointment
as liquidators. After all, Nam Tai could simply have ignored PWC’s demand. There was no way by
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which PWC could have compelled Nam Tai to particularise its contention. In fact, Nam Tai could
assert that by particularising its charge it would have to disclose some of the very confidential
information, the spread of which it was seeking to suppress. In such a situation, it is doubtful
that PWC can justify its disclosure of the negative recommendation on the basis of Nam Tai’s
rejection of PWC’s demand that Nam Tai explains its allegation of conflict.
Thus, we come back to the question whether PWC’s disclosure was ‘fairly required’ as a defensive
response to Nam Tai’s objection. In this regard, it would seem that the Court of Final Appeal in Nam
Tai might have given the phrase ‘fairly required’ an unduly restrictive meaning when it insisted that
it is insufficient for PWC to show that its disclosure represented a defensive response to one of the
several possible contentions underlying Nam Tai’s opaque objection.
It is submitted that in calibrating whether disclosure is ‘fairly required’, a court should balance the
legitimate interest of the party seeking to suppress the confidential information against that of
the party seeking to disclose the same. Such an approach finds support in the English High Court
decision in Webster v James Chapman & Co [1989] 3 All ER 939 at 945. The Court does not appear
to have considered this in the instant case.
Thus, if Nam Tai’s interest in suppressing disclosure of the negative recommendation is merely
nominal (as the damages of HK$100 ordered would suggest), the threshold for PWC to disclose
the negative recommendation should accordingly be lower. If so, it is submitted that PWC should
have been permitted to disclose the negative recommendation given that it represented a defensive
response to at least one of the several possible contentions underlying Nam Tai’s opaque allegation
of conflict.
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Conclusion
It remains to be seen whether the Singapore courts would adopt the restrictive approach of the
Hong Kong Court of Final Appeal in Nam Tai. Until such time the Singapore courts pronounce
on this issue, it would be prudent for accounting firms and other professional advisers to take
a conservative approach when deciding whether disclosure of confidential information is ‘fairly
required’ in the pursuit of their legitimate interests.
Vexed Question
Singapore Law
Disclosure Of
By Professional
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– The Process
Open Source In IT
Contracts
Kelvin Poon
Partner, Business Finance & Insolvency Practice Group
DID: 6232 0403
kelvin.poon@rajahtann.com
Kelvin Poon is a Partner in the Firm’s Business Finance & Insolvency Practice Group. Kelvin’s areas of practice are commercial litigation, trust,
insolvency and restructuring.
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Public Private Partnership Projects – The Process
Series
In recent years, Public Private Partnership Projects (‘PPP’) have been introduced in Singapore as a
method for the delivery of infrastructure.
Trusts Practice
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Disclosure Of
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– The Process
Whilst the PPP style of project delivery is still relatively new in Singapore, it has been utilised
over a number of years in Australia and elsewhere. In this article, we summarise the processes
involved in bidding for these kinds of projects. This article particularly considers in general
terms the implementation for PPP transactions from the public sector perspective based on
recent experience in Australia, and draws comparisons to the processes now being adopted in
Singapore.
PPP Style Projects
The term ‘Public Private Partnership’ was developed in the United Kingdom. Forms of project
delivery involving the private sector have been used extensively there and in Australia since the
early 1990s in a range of civil infrastructure projects such as road and water treatment plants, and
more recently in social infrastructure projects such as courts, prisons, schools and hospitals. This
model is extensively used and is now regarded as a common method of project delivery for major
government projects.
In Singapore, the Government has indicated that it will only apply the PPP model to large value
projects (ie projects with a value in excess of S$50 million) in sectors where there have been
successful PPP examples in other countries, for example Australia or the UK. The categories of
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projects expressly referred to by the Singapore Ministry of Finance in its Public Private Partnerships
Handbook are sports facilities, incineration plants, water and sewerage treatment works, major
IT infrastructure projects, education facilities including student accommodation, hospitals and
polyclinics, expressways and government office buildings.
The term ‘Public Private Partnership’ describes the contract pattern for project delivery or
procurement methodology used by the project sponsor. The project sponsor under the PPP model
is usually the Government or other public sector entity. Under the PPP model, the project sponsor
engages a private sector entity to design, construct, operate and maintain an infrastructure asset.
The operations period is usually over a long term, often between 25 to 30 years. In most PPP
style projects, the site for the project is selected by the Government and payment for the services
provided by the private sector is based on availability charges which are usually benchmarked
against market indices.
The facility constructed utilising this model usually reverts to government ownership at no cost at
the end of the concession term. In most instances, the private sector entity is a special purpose
vehicle incorporated for the particular delivery of the project. In turn, sub-contractors carry out
most of the services on behalf of the special purpose vehicle, under design and construct contracts
and operation and maintenance agreements. In projects known as ‘social’ infrastructure, for
example educational services, the state or government entity often retains certain operations
functions within the facilities for the concession period.
The term ‘Public Private Partnership’ has been described by the Ministry of Finance in Singapore
as a ‘long term partnership between the public and private sector to deliver services’. In Singapore
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to date, this kind of model has been utilised for a number of projects including a desalination
plant, a water treatment plant, an incinerator plant, and more recently for the Singapore Sports
Hub project. In addition, this model is currently under consideration for a secondary school
project in Singapore. That said, there is still relatively little experience in Singapore of these types
of projects and it is expected that this model will be adopted for more projects in the future.
These types of projects are complex and often involve a range of participants including the
Government, special purpose vehicles, financiers, constructors, operation and maintenance
contractors together with other participants such as equity investors and debt financiers. The
project procurement methodology is quite detailed and has specific steps and requirements. It
also requires a number of contracts to be entered into which need to be carefully drafted and
interrelated.
An Outline Of The Procurement Process For PPP Projects
The typical procurement processes for PPP projects in Australia and Singapore are very similar and
generally involve several phases. These phases or stages are discussed below.
Expression Of Interest (‘EOI’) Phase
The Government entity usually requests private sector participants to provide an expression of
interest in a particular project. The expression of interest usually includes details of the identify of
the consortium members, relevant expertise, proposed funding structure and comments regarding
the risk profile which may have been outlined by the Government entity either in a term sheet or
draft project deed documents.
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It is important for private sector participants to approach the provision of expression of interest
carefully so as to ensure shortlisting. This will usually require a detailed assessment of the risks
outlined by the Government entity to be absorbed by the private sector.
In Singapore, even prior to the issue of the EOI documents a ‘pre-procurement’ briefing is often
held, the purpose of which is to inform the industry of the project and obtain ‘market sounding’
or reaction to the Government’s proposed approach. In this way the reactions of the private sector
can be taken into account in drafting the EOI documents.
Shortlist Phase
The Government entity generally assesses the expressions of interest received and cuts the bidding
consortia down to a shortlist. Quite often the shortlist contains three to four consortia. At this
stage, shortlisted consortia are often required to enter into probity and process deeds which set
out probity and confidentiality requirements surrounding the process for the project and their
obligations in participating in the further tender.
Usually the Government will need to engage experts to assist in the evaluation of expressions of
interest.
Request For Proposal (‘RFP’) Stage
In Singapore, this phase is often referred to as the Invitation to Tender (‘ITT’) phase. After shortlisting,
the Government entity will generally provide the shortlisted consortia with the RFP or request for
proposal documents which set out the Government entity’s full requirements for the project. These
documents often include technical design and operational requirements as well as evaluation
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criteria and the fully drafted project agreement setting out the detailed risk allocation between the
parties for the project. In Singapore, the ITT must comply with guidelines set out by the Ministry
of Finance.
The RFP or ITT stage is usually quite lengthy, having regard to the amount of information which is
required to be put forward by the private sector consortia. This stage can often take place over a
period of four to six months or longer. The consortia are usually expected to submit fully detailed
proposals including detailed responses to the project agreement.
In recent experience in relation to the Singapore Sports Hub project, this phase commenced in July
2006 when ITT documents were sent to three prequalified consortia, and extended to December
2007 when the successful consortium was announced, a period of just under 18 months.
Clarification Sessions And Meetings
Singapore Law
In Australia, during the assessment process, the government sector will often engage in meetings
with bidding consortia to clarify requirements and to endeavour to minimise inconsistent
interpretation of the RFP among consortia.
Disclosure Of
By Professional
In Singapore, this phase is known as the ‘Market Feedback Period’, and it occurs prior to the
close of the RFP or ITT period. The Ministry of Finance has stated that the purposes of the Market
Feedback process is to enable the prequalified bidders to seek clarification on certain issues, raise
suggestions with the government entity, request any changes to the tender process to assist with
bankability, and for the public agency to revise the tender conditions and specifications where
necessary.
Public Private
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Selection Of Preferred Bidder
In both Australia and Singapore, detailed requirements exist in relation to the evaluation of
tenders. After assessment of the RFPs, the Government will select the preferred bidder and
publish or nominate the identity of the preferred bidder. Quite often the preferred bidder is
negotiated with whilst other bidders are required to keep their bid open in the event that
the preferred bidder collapses. The Government entity enters into final negotiations with the
preferred bidder and all project documents are executed at the conclusion of this process. In
many cases the project agreements are subject to a condition precedent being the achievement
of ‘financial close’. Financial close occurs when all preconditions to any funding for the project
has been satisfied.
The procedures that have been outlined above can often be quite lengthy. As such, it is not
uncommon for 12 months to two years (or longer) to be taken up in the process between the initial
expression of interest stage and financial close. In addition, it seems that in Singapore the possibility
for extended delays to occur in the process is even greater due to the additional formalised ‘Market
Feedback Period’, together with the stated possibility of late amendments to the requirements of
the project. Again, using the Singapore Sports Hub project as an example, the whole period from
prequalification or expression of interest to financial close was just over two years.
Design And Construction Phase
Once the project documents have been entered into between the public sector and the private
sector special purpose vehicle or entity, that entity will usually enter into a design and construction
contract with its builder who will then design and construct the facility in accordance with
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construction documents. These documents will usually contain detailed requirements for the design
and construction of the facility, as well as testing and commissioning requirements.
Operation And Maintenance Phase
After completion of construction, the facility will be handed to the operator to be operated and
maintained in accordance with the terms of the operation and maintenance agreement. In social
infrastructure projects, it is usually provided that the public and private sectors operate and maintain
the facility ‘in partnership’ over the project.
At the end of the term, the facility is handed back to the government entity, usually after a transition
procedure whereby inspections of the facility are undertaken to ensure that it is in appropriate
condition prior to handover.
Key Issues - Project Agreements
In Australia, a number of governments has issued guidelines concerning the procedures to be
undertaken in relation to the procurement of PPP projects, together with standard commercial
principles to be adopted in project agreements between government entities and the private sector.
For example, the Victorian government has issued its partnership Victoria Standard Commercial
Principles (June 2005). This document summarises the Victorian government’s position in relation
to risks which arise to be dealt with PPP projects. Partnerships Victoria has indicated that the
purpose of the standard commercial principles is to enable the parties to obtain some consistency
and market certainty in documentation going forward for PPP projects. Other Australian states
have published similar guidelines.
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In Singapore, no standardised commercial principles or documents have been developed or
published but it may be expected that going forward, as the PPP market develops, such standardised
principles may be developed and published.
Some key issues which commonly arise and which could be dealt with as part of such a standardised
package in Singapore include the following:
• Which services constitute ‘core’ services?
This issue relates to the parties identifying and agreeing which are the ‘core’ services which
should not be delivered by the private sector, and retained by the Government. For example,
the services carried out by doctors within a hospital, teachers within a school or judges in a
court are widely regarded as ‘core’ services which it is the function of the Government to
provide.
In addition it is widely recognised that there are certain ongoing non-delegable duties of the
government which cannot be transferred to third parties.
It is important that the private sector has a clear understanding of the ongoing government
participation in the project from the outset.
• What constitutes ‘value for money’?
In Australia, a full cost / benefit analysis is usually carried out to determine whether a project
should be undertaken adopting a PPP style delivery process. A similar process is undertaken in
Singapore by the Government prior to the issue of expression of interest or prequalification
documents.
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In Australia, private sector bids are assessed against transparent public sector benchmarks to
determine value for money utilising a ‘Private Sector Comparator’.
Value for money is assessed by endeavouring to allocate risk appropriately. A similar approach is
adopted by the Ministry of Finance in Singapore.
• Risks surrounding Government activities and determinations
The private sector often perceives that as the Government has law making powers, it also has the
ability to affect the commercial deal between it and the private sector. Government activities and
determination do have the ability to adversely affect a project. However, it is generally recognised
that PPP contracts should not attempt to constrain the ability of governments to change policy
or make new laws. In these circumstances, the preferred approach is to allow for compensation
or other redress in the project documents.
• Termination and Step-in
In PPP style projects, this is an area of particular concern to the private sector participants. This is
so because private sector participants largely require termination and step-in rights to be limited
to major breaches or emergencies. They are also subject to lengthy cure periods in which to
remedy a breach.
Conclusion
PPP projects can be extremely complex and involve lengthy processes prior to reaching financial
close. In addition, there are a number of issues which arise regularly for determination in the PPP
style of project delivery. In other jurisdictions such as Australia, a ‘standardised’ approach to some
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of these issues is being taken more often by government agencies, which leads to more certainty
for the private sector consortia interested in bidding for such projects.
Series
This approach is something which could be considered in Singapore so as to assist private sector
consortia bidding for PPP style projects in the future here.
Trusts Practice
Rajah & Tann LLP’s new Major Projects Group focuses on advising parties involved in large scale infrastructure and PPP style projects. See
related write-up on the Firm’s new Major Projects Group on page 7.
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Amanda Davidson
Foreign Law Partner, Major Projects Group
DID: 6507 9529
amanda.davidson@rajahtann.com
Amanda Davidson is an Australian qualified lawyer who has recently joined Rajah & Tann LLP as Foreign Law Partner to head the Firm’s Major
Projects Group. Amanda has over 20 years of extensive experience in advising on a wide range of infrastructure projects in the Australian
and Asian markets including projects such as rail systems, roads, oil processing facilities, commercial and residential construction, airports,
tunnels and telecommunications infrastructure. She specialises in advising industry participants in major projects in relation to all aspects of
project documentation as well as in relation to litigation, arbitration and other forms of dispute resolution.
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Open Source In IT Contracts
The open source model has been changing the way software is developed. For software developers,
open source software provides a significant opportunity to reduce software development cycles,
which is crucial in an industry where the life cycle of software products is measured in months.
It also reduces the need to expend time and effort in programming for functionalities that may
be provided as discrete modules. The reduction of software development time directly results
in a reduction of the costs of software development. This is a benefit that many IT managers,
with limited IT budgets and seemingly unlimited calls by user departments on it, will keenly
appreciate.
Another phenomenon of the open source model is the ability to gather the best and brightest of
developers to contribute, often in their spare time, to the development of open source software
modules and sometimes complete systems. The pooling of worldwide talent results in unparalleled
speed in the maturation of open source software and the correction of bugs and errors, at least in
theory, and in the case of open source software with an active developer community, realised to a
significant extent.
As inhouse legal and IT manager, there are certain things to keep an eye out for when a software
vendor offers a solution is that based on open source software components. This article takes a
brief look at the mechanics of these open source software and licenses, as well as addresses the
issues that have arisen from their application.
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The Open Source Definition
Broadly defined, open source is a set of principles and practices on how to write software,
the most basic of which is that the source code must be openly available. The Open Source
Initiative (‘OSI’) (taken from http://www.opensource.org) founded in 1998 in California acts as
the stewards of the Open Source Definition (‘OSD’), which sets out the criteria a particular open
source licence must meet. These criteria or conditions thus form the cornerstone of the open
source movement, with the emphasis on the freedom to proliferate and apply the software. They
are as follows:
• Free redistribution – The licence shall not restrict any party from selling or giving away the
software. The licence shall not require a royalty or other fee for such sale.
• Source code – The program must include the source code, and must allow distribution in source
code as well as compiled form.
• Derived works – The licence must allow modifications and derived works.
• Integrity of the Author’s source code – The licence may require that modifications are only redistributed as ‘patches’, to protect the integrity of the original source code.
• No discrimination against persons or groups.
• No discrimination against fields of endeavour – The licence must not restrict anyone from making
use of the program in a specific field of endeavour.
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• Distribution of licence – The rights attached to the program must apply to all to whom the
program is redistributed without the need for execution of an additional licence.
• Licence must not be specific to a product – The rights attached to the program must not depend
on the program’s being part of a particular software distribution.
• Licence must not restrict other software – The licence must not place restrictions on other
software that is distributed along with the licensed software.
• Licence must be technology-neutral.
Types Of Open Source Licences
Open source licences play an integral part in setting out the various rights and obligations governing
the application of these software.
GNU General Public Licence – Example Of A ‘Copyleft’ Licence
Written by Richard Stallman in 1989, the GNU General Public Licence (‘GPL’) is a widely used free
software license, incorporating the primary principles of the Open Source movement. The GPL
remains one of the most popular licences used for open source software. The latest version (GPL
Version 3) was officially released on 29 June 2007, and has been modernised by including, for
example, provisions to specifically exclude any anti-circumvention laws.
GPL permits the copying, modifying and redistribution of the software to which it applies. The
user is required to release the source code for the software that works with the GPL components.
Any changes to the GPL licensed software have also to be disclosed in source code, so that others
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can benefit from the changes made. This principle of ‘copyleft’ essentially ensures that the rights
over the open source software are preserved, even when the GPL licensed software is changed or
added to.
This is of particular concern to IT managers. If the IT system that you are sourcing is commercially
valuable, in the sense that the company wishes to keep it proprietary or cannot afford to have
it released in source code, then care must be taken to avoid using any GPL licensed software
components.
Mozilla Public Licence – ‘Weak’ Copyleft
The Mozilla Public Licence (‘MPL’) is another example of an open source and free software licence,
popularised by the software that gave it its name: Mozilla Firefox, Mozilla Thunderbird and other
Mozilla projects. Although it is also recognised as a copyleft licence, its distinguishing factor is that
it is commonly regarded as a ‘weak’ copyleft. Specifically, source code copied or changed under
the MPL must stay under the MPL. Unlike strong copyleft licenses like the GPL, the open source
code under the MPL may be combined in a program with proprietary software code without the
requirement to disclose the source code of the latter.
The fundamental legal and philosophical difference between the MPL and GPL is that GPL licensed
software must always remain free. Generally speaking, any additions made to GPL licensed
code need to be contributed back to the community, which is why the GPL is often referred
to as a reciprocal license. With the MPL, there is no such stipulation for reciprocity or perpetual
openness.
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The relevance of this distinction is that open source licences are, at the end of the day, licences
the terms of which can be enforced by the licensor. Examples of the enforcement of open source
licences are discussed in a later section of this piece. As inhouse legal or IT manager, this is an
important consequence to bear in mind when open source components are used in the IT solution
that the vendor is proposing.
Software Patent Issues
Software patents are a minefield of different opinions and philosophies, the merits of which are
beyond this article. Needless to say, when the idealism of open source software advocates meet the
threat posed by software patents to the collegiate fraternity enjoyed by open source contributors,
battle lines are drawn.
Fundamental to this battle is the idea that free software projects cannot agree to patent
licences that include any kind of per-copy licence fee, no matter how low the fee is. Apart
from the fact that there is no way for a free software distributor to know how many copies
of his software will eventually be made, the addition of any requirement to pay or to notify
someone each time a copy is made would rid the open source software of its fundamental
tenet: that it should be freely available and distributable. Version 2 of the GNU GPL actually
does not allow software to be distributed if that software requires a patent licence that does
not ‘permit royalty-free redistribution of the Program by all those who receive copies directly
or indirectly through you’.
In addition, ‘patent retaliation’ clauses are increasingly seen in recent open source licences. The
goal of these clauses is to plainly discourage the licensee (the user / recipient of the software) from
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Disclosure Of
By Professional
Public Private
– The Process
suing the licensor (the provider / author of the software) for patent infringement by terminating
the license upon the initiation of such a lawsuit. This is evident from the recent incarnations of
the GPL Version 3, as well as the MPL. However, it should be noted that a patent licence that
is royalty-free, or provides a one-time worldwide payment is acceptable under some copyleft
licences.
Open Source On The Legal Battlefield
There have been battles fought over the interpretation and use of such open source licences. In
Germany, a Munich court found that Skype had violated the terms and conditions of GPL Version 2
by not including the source code with the binary version of the software. Instead, Skype had only
included a ‘flyer’ with a URL describing where to find the source code version.
Also, in the United States, the Free Software Foundation made its presence felt during the takeover of Linksys by Cisco. The Free Software Foundation, the developer and enforcer of GPL Version
2, initially insisted that Cisco make the entire source code of the Linksys operating system available
under the GPL Version 2 because open source code licensed under the GPL were included in certain
Linksys products. Such a result would have dramatically reduced the value of Linksys because the
source code of the Linksys products would have been available at no charge. Eventually, the dispute
was settled amicably because Cisco and the Free Software Foundation came to an agreement that
the open source software was limited to a single driver, and Cisco then agreed to distribute that
particular driver under the GPL Version 2.
The two examples above serve to exemplify the potential landmine that resides in the use of open
source licensing and software.
Open Source In IT
Contracts
75 /77
IN THIS ISSUE:
Developments In The
First Half Of 2008
Series
It is thus important that the developers, entrepreneurs, and users of open source software need
to understand open source licences. The benefits of development using open source components
have to be balanced with the potential disclosure requirements and limit the economic benefits of
patenting otherwise proprietary software.
Trusts Practice
Vexed Question
Singapore Law
Disclosure Of
By Professional
Public Private
– The Process
Open Source In IT
Contracts
Yeong Zee Kin
Ng Yi Wen
Partner, IP Technology Entertainment
Communications (iTec) Practice Group
Associate, IP Technology Entertainment
Communications (iTec) Practice Group
DID: 6232 0772
DID: 6232 0795
zee.kin.yeong@rajahtann.com
yi.wen.ng@rajahtann.com
Yeong Zee Kin formerly held appointments as Assistant Registrar of the Supreme Court and as Deputy Public Prosecutor (‘DPP’) and State
Counsel of the Attorney-General’s Chambers. As DPP, Zee Kin has prosecuted computer and white collar crimes and has an in-depth
knowledge and experience in electronic evidence. He has also been involved in legislative reform of legislation dealing with electronic evidence
and investigatory powers, spam control and provided advice on open source licensing issues. As an Assistant Registrar, Zee Kin has heard
interlocutory applications involving technology disputes and delivered a key decision on electronic service of documents.
Ng Yi Wen is a new associate in the Firm’s IP Technology Enterntainment Communications (iTec) Practice Group who did pupillage with
Rajah & Tann LLP.
76 /77
Vol 10 Issue 1 June 2008 • Rajah & Tann LLP’s Bi-Annual Journal on features and articles of current interest and legal developments
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The information contained in this newsletter is correct to the best of our knowledge and belief at the time of writing. The contents are intended to provide a general guide to the subject matter and should
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© Rajah & Tann LLP June 2008. All rights reserved.
77 /77

Lawlines Vol 10 Issue 1

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