Legal Bulletin
A summary of developments in the law
At a glance
Corporate
Corporate Governance Council proposes revisions to Code of
Corporate Governance on directors, remuneration, risk
management and shareholder rights and role
4
SGX proposes rule changes on place of general meetings, poll
voting and disclosure of voting outcomes
5
Singapore High Court considers claims of breach of fiduciary
duties against managing director of company
6
Singapore High Court judge considers principles and
restrictions relating to director’s right of inspection of
company accounts
10
Dispute Resolution
Singapore Court of Appeal considers the application of
dispute resolution clauses in related agreements, and the
drafting of triggering event clauses when dealing with foreign
companies
13
Media & Telecommunications
ICANN approves creation of new website addresses ending
in corporate names
15
IDA issues decision on net neutrality
16
Singapore Exchange
SGX announces initiatives to reduce bid size and cut trading
cost
18
SGX offers trading of Singapore government bonds
19
News
Allen & Gledhill LLP wins coveted Singapore Deal Firm of the
Year at ALB SE Asia Law Awards
24
Click here for Table of Contents
Vol 23 No 6 June 2011
ALLEN & GLEDHILL LLP
In this issue
Articles
Corporate
Corporate Governance Council proposes revisions to Code of
Corporate Governance on directors, remuneration, risk
management and shareholder rights and role
4
SGX proposes rule changes on place of general meetings, poll
voting and disclosure of voting outcomes
5
Singapore High Court considers claims of breach of fiduciary
duties against managing director of company
6
Singapore High Court judge considers principles and restrictions
relating to director’s right of inspection of company accounts
10
Dispute Resolution
Singapore Court of Appeal considers the application of dispute
resolution clauses in related agreements, and the drafting of
triggering event clauses when dealing with foreign companies
13
Media & Telecommunications
Editorial Team
ICANN approves creation of new website addresses ending in
corporate names
15
IDA issues decision on net neutrality
16
Margaret Chew
Elizabeth Wong
Soo Seong Theng
Singapore Exchange
SGX announces initiatives to reduce bid size and cut trading cost
18
SGX offers trading of Singapore government bonds
19
Hong Farn Ling
Anitha Rajaram
General
The contents of the Legal
Bulletin are intended to provide
general information. Although we
endeavour to ensure that the
information contained herein is
accurate, we do not warrant its
accuracy or completeness or
accept any liability for any loss
or damage arising from any
reliance thereon. The information in
this Legal Bulletin should not
be treated as a substitute for
specific legal advice concerning
particular situations. If you
would like to discuss the
implications of these legal
developments on your business
or obtain advice, please do not
hesitate to approach your usual
contact at Allen & Gledhill LLP
or the editors of the Legal Bulletin,
Margaret Chew (+65 6890 7500 or
margaret.chew@allenandgledhill
.com) and Elizabeth Wong (+65
6890 7559 or elizabeth.wong
@allenandgledhill.com).
English Court of Appeal finds entire agreement clause not
effective to exclude claims for misrepresentation
19
News
Acquisition of shares in Capital Square Pte Ltd
22
Cache-MTN Pte. Ltd.’s S$500 million multicurrency medium term
note programme
22
Mandatory unconditional cash offer for Kim Eng Holdings Limited
22
Successful completion of S$982.6 million IPO of Mapletree
Commercial Trust
23
Establishment of Overseas Union Enterprise Limited’s S$1 billion
multicurrency medium term note programme
23
Perennial China Retail Trust raises S$776.2 million in IPO
24
Legal Bulletin June 2011
2
Allen & Gledhill LLP wins coveted Singapore Deal Firm of the
Year at ALB SE Asia Law Awards
24
Allen & Gledhill LLP also publishes the monthly Financial Services Bulletin.
To view the June 2011 issue, please click here.
Legal Bulletin June 2011
3
Articles
Corporate
Corporate Governance Council proposes revisions to Code
of Corporate Governance on directors, remuneration, risk
management and shareholder rights and role
On 14 June 2011, the Corporate Governance Council (the “Council”) issued
a consultation paper proposing extensive revisions to the Code of Corporate
Governance (the “Code”). The Code applies to Singapore listed companies
on a “comply or explain” basis. Any comments on the proposed revisions are
to be submitted to the Council by 31 July 2011.
The Code was last reviewed in 2005. Since then, events such as the 2008
global financial crisis have prompted a closer examination of corporate
governance issues around the world.
Impact on corporates, real estate investment trusts and registered
business trusts
The proposed changes to the Code will impact not only companies, but also,
with the necessary adaptations, real estate investment trusts (“REITs”) and
business trusts registered under the Business Trusts Act (“Registered BTs”)
that have a primary listing on Singapore Exchange Securities Trading
Limited.
Proposed revisions to the Code
Highlights of some of the key recommendations are set out below:
For further information, please
contact:

Director independence: To include in the Code additional instances
where a director will be deemed non-independent, e.g. if he is a
substantial shareholder or an immediate family member of a substantial
shareholder of the company, or if he has served on the Board for more
than nine years from the date of his first election.

Board composition: To introduce in the Code a new provision that at
least half of the Board should be comprised of independent directors
where (i) the Chairman and the Chief Executive Officer (“CEO”) is the
same person, (ii) the Chairman and CEO are immediate family
members, i.e. one is the other’s spouse, child, adopted child, step-child,
brother, sister or parent, (iii) the Chairman and CEO are both part of the
management team, or (iv) the Chairman is not independent.

Director training: To introduce in the Code new requirements for
companies to arrange and fund training for new and existing directors,
and disclose the induction, orientation and training provided to new and
existing directors in its annual report.

Multiple directorships: To introduce in the Code a provision that the
Nominating Committee should decide if a director is able to and has
been adequately carrying out his duties as a director, taking into
consideration the number of listed company board representations
undertaken by him and other principal commitments.

Alternate directors: To introduce in the Code a provision that the
appointment of alternate directors should be avoided except for limited
periods in exceptional cases.
Corporates
Christine Chan
Tel: +65 6890 7647
christine.chan@allenandgledhill.com
Sophie Lim
Tel: +65 6890 7696
sophie.lim@allenandgledhill.com
Christina Ong
Tel: +65 6890 7700
christina.ong@allenandgledhill.com
Yap Lune Teng
Tel: +65 6890 7665
yap.luneteng@allenandgledhill.com
Registered BTs & REITs
Chua Bor Jern
Tel: +65 6890 7772
chua.borjern@allenandgledhill.com
Foong Yuen Ping
Tel: +65 6890 7622
foong.yuenping@allenandgledhill.com
Jerry Koh
Tel: +65 6890 7770
jerry.koh@allenandgledhill.com
Legal Bulletin June 2011
4

Remuneration practices and disclosures: To introduce in the Code a
provision that companies should fully disclose the remuneration of each
individual director and the CEO on a named basis, as well as the
aggregate figures of the total remuneration of the top five key
management personnel (who are not directors or the CEO).

Shareholder rights and role: To introduce in the Code a new principle
and accompanying guidelines on “Shareholder Rights” to guide
companies in their engagement with shareholders.
Reference materials
The following materials are available from the Monetary Authority of
Singapore website www.mas.gov.sg:

Press release

Consultation paper

Appendix A - Proposed Revised Code of Corporate Governance

Appendix A1 - Proposed revisions set out against the Principles
and Guidelines of the current Code
Back to Contents Page
SGX proposes rule changes on place of general meetings,
poll voting and disclosure of voting outcomes
Corporates
On 2 June 2011, the Singapore Exchange Limited (the “SGX”) issued a
consultation paper entitled “Proposed Rule Changes on General Meetings to
Increase Shareholder Engagement and Enhance Corporate Governance
Practice”.
Christine Chan
Tel: +65 6890 7647
christine.chan@allenandgledhill.com
The SGX is consulting the public on amendments to the listing rules to
require a primary-listed issuer to:
Sophie Lim
Tel: +65 6890 7696
sophie.lim@allenandgledhill.com
(a)
hold its general meetings in Singapore, unless prohibited by relevant
laws and regulations in the jurisdiction of its incorporation. Companies
which are so restricted should facilitate the participation of local
shareholders in the meetings with the provision of resources such as
video conference, webcast, etc. In addition, such issuers should also
hold shareholder meetings in Singapore at least once a year.
(b)
conduct poll voting on all resolutions at any general meeting. Issuers
that are required to adopt quarterly financial reporting should adopt
voting by poll at general meetings held on or after 1 January 2013.
Issuers that are only required to adopt half-yearly financial reporting
should adopt voting by poll at general meetings held on or after
1 January 2014; and
(c)
announce information on the voting results immediately after each
general meeting. The announcement has to be made no later than the
commencement of the pre-opening session on the market day following
the general meeting. The information to be announced including the
total number of shares voted for and against each resolution and the
total number of proxy votes received
For further information, please
contact:
Christina Ong
Tel: +65 6890 7700
christina.ong@allenandgledhill.com
Yap Lune Teng
Tel: +65 6890 7665
yap.luneteng@allenandgledhill.com
Registered BTs & REITs
Chua Bor Jern
Tel: +65 6890 7772
chua.borjern@allenandgledhill.com
Foong Yuen Ping
Tel: +65 6890 7622
foong.yuenping@allenandgledhill.com
Jerry Koh
Tel: +65 6890 7770
jerry.koh@allenandgledhill.com
Legal Bulletin June 2011
5
The SGX proposed similar changes to the Catalist rules with the necessary
adaptations.
The consultation closed on 17 June 2011.
Impact on corporates, real estate investment trusts and registered
business trusts
The changes proposed by the SGX will impact not only primary-listed
companies, but also real estate investment trusts (“REITs”) and business trusts
registered under the Business Trusts Act (“Registered BTs”). Annual general
meetings (“AGMs”) for REITs have been mandatory since 1 January 2010.
Registered BTs are required to hold AGMs under the Business Trusts Act.
Reference materials
The following materials relating to the above development are available from
the SGX website www.sgx.com. Please click on the provided links to
access:

Press release

Consultation paper
Back to Contents Page
Singapore High Court considers claims of breach of
fiduciary duties against managing director of company
Ascorp Technology Pte Ltd v Chew Youn Chong & Anor (Ryan Patrick
Joseph, third party) [2011] SGHC 118
In the recent decision of Ascorp Technology Pte Ltd v Chew Youn Chong &
Anor (Ryan Patrick Joseph, third party), the Singapore High Court held that
the first defendant who was the director and managing director of the plaintiff
company had breached his fiduciary duties as a director to act honestly and
in the best interest of the plaintiff company by placing himself in a position of
conflict of interest. The first defendant had, among other things, through
another company which was wholly owned by him (the “second
defendant”), competed for a business opportunity which the plaintiff
company was also interested in. The first defendant had argued
unsuccessfully that he was not in breach of his fiduciary duty not to put
himself in a position of conflict of interest because the plaintiff company had
lost the business opportunity.
Facts
The plaintiff was a Singapore incorporated company with three shareholders
who were also its directors. The three shareholders/directors were the first
defendant, the third party in this action (“PJR”) and PJR’s wife. At all material
times, PJR’s wife was PJR’s nominee and did not take an active role or
participate in decisions involving the plaintiff or its business.
Before the first defendant joined the plaintiff as its director and shareholder,
PJR and his wife were the plaintiff’s only directors and shareholders. PJR
had brought in the first defendant, who had the relevant technical
experience, to resolve some technical problems with a product which the
plaintiff was supplying to its main customer. When the first defendant joined
Legal Bulletin June 2011
6
the plaintiff as its shareholder and director, PJR and the first defendant
entered into a shareholders agreement in 2003 which provided for various
matters including the following:

The plaintiff’s Board of Directors (the “Board”) would comprise the first
defendant, PJR and PJR’s wife.

The appointment of the first defendant as the plaintiff’s managing
director.

The payment of a monthly salary to the first defendant.

The Board had the right to appoint and/or remove the managing director.

The matters which required the consent of both the first defendant and
PJR. Generally, such matters should not exceed the amount of $5,000.

The plaintiff’s bank accounts were to be jointly operated by the first
defendant and PJR.
Over the years, the relationship between the first defendant and PJR
deteriorated.
One of the sources of unhappiness between the first defendant and PJR was
that the first defendant had allegedly provided an inaccurate forecast of the
plaintiff’s net profits for 2005, based on projected figures provided to the first
defendant by the plaintiff’s main customer. As a result of this forecast, the
Board resolved to pay the first defendant 30% of the plaintiff’s profits for
2005. The plaintiff’s main customer subsequently altered its projected
figures, which resulted in the plaintiff’s profits for 2005 far exceeding the
forecast that the first defendant had provided to the Board.
Another source of unhappiness was that the first defendant had issued
multiple cheques (each for the amount of $5,000 or less) to himself for
payments exceeding $5,000.
The deteriorating relationship resulted in the removal of the first defendant as
the plaintiff’s managing director by the Board in a meeting which the first
defendant refused to attend in February 2006. However, the first defendant
continued to be the plaintiff’s director until he resigned in May 2006.
After the removal of the first defendant as the plaintiff’s managing director,
problems continued to surface.
First, PJR discovered on 13 February 2006 that the plaintiff’s employees had
resigned en mass on 26 January 2006. As a result, between 13 February 2006
and 16 February 2006, the plaintiff was shut down.
Second, one of the plaintiff’s suppliers refused to continue working with the
plaintiff. After the removal of the first defendant as the plaintiff’s managing
director, the said supplier refused to continue supplying its goods and
services without any explanation whatsoever. PJR attributed this refusal to
the influence of the first defendant.
Third, the plaintiff had been exploring a business opportunity to develop
products for a potential customer. However, technical issues subsequently
arose, which the plaintiff’s supplier apparently could not resolve. As a result,
the plaintiff’s supplier indicated that it intended to abandon the project. When
PJR learnt of this, he tried to convince the supplier not to give up. Unknown
to PJR, the first defendant had incorporated the second defendant in
Legal Bulletin June 2011
7
November 2005, and commenced doing business with the plaintiff’s potential
customer for items which had functions similar to those that the plaintiff was
developing for that potential customer. It was only later that PJR found out
about the second defendant and that it was wholly owned by the first
defendant who was also its managing director.
The present action
Acting through PJR, the plaintiff brought the present action against the first
and second defendants. PJR was subsequently joined as a third party.
Essentially, the plaintiff characterised its complaint against the first defendant
in the form of alleged breaches of fiduciary duty.
Breach of fiduciary duties
On the facts, the High Court found that the first defendant had breached his
fiduciary duties to act honestly and in the best interest of the plaintiff by
placing himself in a position of conflict of interest.
Set out below are the instances where the court found the first defendant
had breached his fiduciary dutie:

Signing of multiple cheques. The first defendant had breached the
shareholders agreement when he issued several cheques, each not
exceeding $5,000, for payment to himself of a total amount greater than
$5,000, in order to avoid having to obtain PJR’s signature to cheques for
amounts exceeding $5,000. On the evidence, the first defendant ought to
have known that PJR would have objected to the signing of the cheques
and, hence, the first defendant had deliberately avoided getting PJR’s
signature by issuing multiple cheques, each for less than $5000. By
doing so, the first defendant was in breach of the duty of honesty that he
owed to the plaintiff by virtue of being its managing director.

Damaging the plaintiff’s goodwill and reputation with its main
customer. The first defendant caused damage to the plaintiff’s goodwill
and reputation with regard to its main customer. On the evidence, the
court found that the first defendant had entered into a consignment stock
agreement with the main customer on behalf of the plaintiff without
informing the Board. Subsequently, the plaintiff was almost in breach of
the consignment stock agreement when it had difficulties meeting the
customer’s orders because of reasons which the first defendant was
found to likely have caused. For instance, the court found it likely that the
plaintiff’s main supplier refused to supply products because he was
aware that the first defendant would leave the plaintiff shortly and
engage in a similar business which would require the same products.
Further, the court found it inexplicable why the first defendant did not
take action to rehire staff or at least inform the Board that the plaintiff
would be facing a labour crisis, after the plaintiff’s staff had resigned en
mass, making it difficult for the plaintiff to meet its orders to the main
customer. In this regard, the court also found that the resignation of the
plaintiff’s staff involved some degree of orchestration on the part of the
first defendant.

Incorporation of the second defendant and its business with the
plaintiff’s customer. The first defendant had, through the second
defendant, contacted one of the plaintiff’s customers for the purpose of
exploring a business opportunity which the plaintiff had problems
handling when the same supplier mentioned above abandoned the
project halfway. The first defendant argued unsuccessfully that he was
not in breach of his fiduciary duty not to put himself in a position of
conflict of interest because the plaintiff company had lost the business
Legal Bulletin June 2011
8
opportunity, and/or because the products supplied were different from
those that the plaintiff was developing for this customer. In this respect,
the court found that the plaintiff had not decided to abandon the business
opportunity, even if its supplier had, and also that the products supplied
by the second defendant were similar in nature to those being developed
by the plaintiff for the said customer.
Plaintiff’s locus standi to rely on terms of shareholders agreement
The first defendant had challenged the plaintiff’s locus standi to rely on the
terms of the shareholders agreement. In particular, the terms regarding
matters which required the consent of both the defendant and PJR. The
court had found that although the plaintiff was not a party to the shareholders
agreement, it could still enforce those terms of the shareholders’ agreement
that were incorporated into the first defendant’s employment contract, which
included the terms regarding the matters which required the consent of both
the defendant and PJR. The fact that the first defendant was an employee of
the plaintiff engaged on the terms encapsulated in the shareholders
agreement was evidenced by the fact that the plaintiff paid the first defendant
an initial salary which was consistent with the amount set out in the
shareholders agreement. The first defendant also admitted that he was an
employee of the plaintiff and that the terms of his employment incorporated
terms which were set out in the shareholder’s agreement.
Conclusion
In conclusion, the court granted the plaintiff an account of sales and profits
earned by the second defendant and an order for payment by the second
defendant to the plaintiff of all such sums found to be due from the second
defendant to the plaintiff on the taking of the account by the Registrar. The
court also ordered damages to be assessed by the Registrar generally in
respect of the plaintiff’s loss of reputation and goodwill with its customers as
caused by the first defendant, and specifically in respect of losses caused by
the defendants’ appropriation of the plaintiff’s business opportunities.
If you would like to discuss the
impact of this case on your
business, please contact:
Vincent Leow
Tel: +65 6890 7807
vincent.leow@allenandgledhill.com
Tham Wei Chern
Tel: +65 6890 7801
tham.weichern@allenandgledhill.com
The first defendant had also counterclaimed against the plaintiff and PJR.
The court dismissed the counterclaim against PJR but allowed the
counterclaim against the plaintiff for the first defendant’s unpaid share of
profits pursuant to an earlier agreement which allowed the first defendant to
be paid 30% of the plaintiff’s net profits for 2005.
It is clear from this judgment that directors of companies owe their
companies strict duties of fidelity and honesty, and that the Singapore courts
will not hesitate to scrutinise directors’ actions to ensure that directors
discharge their duties.
Back to Contents Page
Legal Bulletin June 2011
9
Singapore High Court judge considers principles and
restrictions relating to director’s right of inspection of
company accounts
Hau Tau Khang v Sanur Indonesian Restaurant Pte Ltd & Anor and Another
Matter [2011] SGHC 97
In the recent decision of Hau Tau Khang v Sanur Indonesian Restaurant Pte
Ltd & Anor and Another Matter, Steven Chong J in the Singapore High Court
considered the principles and restrictions relating to the right of a director to
inspect company accounts pursuant to section 199(3) of the Companies Act
(the “CA”). The learned judge held that the director (the “appellant”) in this
case had the right to inspect the company accounts even if he did so with a
view to defend against an intended derivative action instituted by another
director (the “respondent”), for alleged breaches of fiduciary duties arising
from the company’s accounts.
Section 199(3) of the CA states, among other things, that a company’s
accounting and other records shall be open to inspection by the directors of
that company.
Brief facts
The appellant and the respondent were brothers and co-directors with equal
shareholdings in the companies, Sanur Indonesian Restaurant Pte Ltd
(“SIRPL”) and Sanur Holding Pte Ltd (“SHPL”) (collectively referred to as the
“companies”). The companies were engaged in the business of running a
chain of restaurants under the trade name “Sanur”. The relationship between
the parties deteriorated sometime in 2003. In 2006 they agreed to continue
running the business operations with a view to eventually wind up the
companies. They started to accuse one another of unreasonable behaviour
in managing the winding down process of the companies. The respondent
had then discovered some irregularities in SIRPL’s accounts, but when he
sought an explanation from the appellant, the latter was allegedly evasive.
By 2009, all the Sanur restaurants had ceased operations, though both
brothers remained as directors of the companies.
The respondent took possession of the keys to the companies’
documentation cabinets and had access to the companies’ accounts. After
discovering some cash discrepancies, he commissioned for a forensic
examination of the accounts of the companies to be conducted but did not
inform the appellant. Following the findings of the forensic examination,
which established that there were some cash discrepancies, the respondent
applied for leave of court to commence a derivative action on behalf of the
companies against the appellant for alleged breaches of fiduciary duties
which included financial irregularities in SIRPL’s accounts.
In response, the appellant instituted a separate application pursuant to
section 199(3) of the CA to exercise his right as a director to inspect SIRPL’s
accounts. The appellant acknowledged that he wanted access to the
accounts to prove his defence in the derivative action and to exonerate
himself from the allegation of financial irregularities and/or breaches of
fiduciary duties.
Decision of the Assistant Registrar
As the Assistant Registrar found that the appellant wanted to inspect the
accounts with the intention to seek “ammunition” to defend against the
potential derivative action, she dismissed the appellant’s application. The
Assistant Registrar agreed with the respondent’s submission that the right to
Legal Bulletin June 2011
10
inspect under section 199(3) of the CA was restricted to enabling a director
to carry out his duties. The appellant then appealed against the decision of
the Assistant Registrar.
Decision of the High Court judge
Based on established case law, Steven Chong J considered the following to
be the relevant principles applicable to the right of inspection under section
199(3) of the CA:

The right to inspect the company’s accounts flows from the office of the
director and cannot be exercised once he or she ceases to be a director.

There is strictly no necessity for the director to furnish reasons or justify
himself before he can exercise his right to inspect.

In the absence of proof to the contrary, the court would assume that the
right would be exercised for the benefit of the company.

In exercising the right of inspection, the director can engage external
assistance, for instance in the form of an accountant.

The right to inspect will be lost where it is exercised for some ulterior
purpose or to injure the company.

Where the right of inspection has been disallowed, the denial is not a
function of the court’s residual discretion but rather an outcome arising
from the court’s decision that the right was to be exercised in aid of some
ulterior or illegitimate purpose.
Based on the principles above, the judge concluded that a director’s right to
inspect, though described as “absolute”, was subject to certain limitations.
The task for the High Court in the present appeal was to decide whether the
appellant’s disclosed purpose (viz exercise of the right to prove that he had
not in fact committed any breaches of fiduciary duties) fell within the scope of
these restrictions so as to oust the appellant’s otherwise “absolute” right to
inspect. Essentially, the High Court had to address the following questions.
Must the right to inspect be strictly exercised in relation to a director’s
duties pertaining to the company accounts?
The respondent’s counsel had submitted that the right to inspect was
conferred strictly to enable a director to fulfil his statutory duties in relation to
the companies’ accounts. Steven Chong J disagreed and held that there was
nothing in section 199 of the CA that suggested that the right of inspection
should be so restricted. The learned judge was of the view that the
inspection was intended to enable a director to discharge all his statutory
duties, including but not limited to those in relation to accounts. According to
the judge, it was foreseeable that a director might need to check the
company’s accounts so as to discharge his duties of reasonable care and
diligence pursuant to section 157(1) of the CA.
Is the right restricted to performance of present and future duties?
In the respondent’s view, the purpose of the right to inspect was for the
discharge of present and prospective director’s duties pertaining to the
company accounts or at least director’s duties in general. Accordingly, it
would be an improper purpose to use the right to justify the past
Legal Bulletin June 2011
11
conduct/performance of director’s duties. Steven Chong J again disagreed
with the respondent and concluded that the right of inspection should not be
confined to the performance of present and future duties as a director.
Further, the right of inspection should not be curtailed by the dormant or
inactive nature of any company as long as the applicant was still a director of
the company at the time of the application. In the present case, the appellant
was the director of the companies at all material times. The learned judge
agreed with the appellant’s submission that it was in the companies’ interest
to allow him to inspect the accounts because if the accounts proved that he
had not breached his fiduciary duties, the companies’ limited resources
would not be squandered on futile litigation. The judge could find no
principled reason why a company’s accounts could not be inspected to
answer allegations against a director in respect of alleged misconduct in the
performance of his duties as a director.
Can the right to inspect be exercised for purposes wholly unconnected
to the discharge of a director’s duties?
Steven Chong J decided that the right to inspect should not be restricted only
in instances where the exercise would be “injurious” or “detrimental” to the
company. The right to inspect could also be displaced if the director intended
to use it for any purposes unconnected to the discharge of his director’s
duties. The burden of proof lies on the party opposing the right to inspect to
demonstrate that an exception applies.
The appellant had put on record that he wanted to inspect the companies’
accounts to prove his defence in the derivative action and to exonerate
himself from the allegation of financial irregularities and/or breaches of
fiduciary duties. The respondent argued that this was an exercise of the right
to inspect for an improper purpose and was hence an exception to the
“absolute” right of a director to inspect company accounts. The respondent
also claimed that the appellant was attempting to use the right to inspect to
subvert the discovery process. The discovery process is a procedure by
which a party in court proceedings obtains compulsory disclosure of
documents and other relevant information from another party in advance of
the trial.
The High Court judge held that the appellant was not exercising the right to
inspect in order to obtain documents which would otherwise not be
discoverable. The appellant would be entitled to the companies’ accounts at
the discovery stage of the proceedings in any event. Further, the appellant’s
rationale in making the application to inspect instead of waiting to address
the matters at trial was to “nip the problem in the bud”, thus saving time,
costs and resources insofar as the allegations relating to financial
irregularities were concerned, and the court saw no real issue in that.
In conclusion, Steven Chong J held that the right to inspect the companies’
accounts was related to the appellant’s discharge of his director’s duties
even if he did so with a view to prove that he had not acted in breach of his
duties.
Specific discovery
The appellant had made, in the alternative, an application for specific
discovery of the companies’ accounts pursuant to the Rules of Court. This
application was also dismissed by the Assistant Registrar. The appellant
appealed against the decision of the Assistant Registrar. Steven Chong J
agreed with the Assistant Registrar that the application for specific discovery
was premature.
Legal Bulletin June 2011
12
If you would like to discuss the
impact of this case on your
business, please contact:
According to the Rules of Court, the court will not order specific discovery
before general discovery unless it is of the opinion that doing so is necessary
or desirable. Case law from the UK and Hong Kong have indicated that an
application for specific discovery will be allowed by the court only in
exceptional circumstances because it would be unfair to compel a party to
provide unilateral discovery before the other party had formally pleaded its
case. On the facts of the present case, the learned judge found that the
appellant had failed to discharge the burden to show exceptional
circumstances to justify discovery at this early stage of the proceedings
where the respondent was merely seeking permission to commence an
action. It was noted that the respondent had relied on grounds extending
beyond allegations of financial irregularities against the appellant. As such,
Steven Chong J was of the view that discovery of the companies’ accounts
would not be able to summarily address the non-financial allegations.
Loong Tse Chuan
Tel: +65 6890 7836
loong.tsechuan@allenandgledhill.com
Conclusion
Tham Hsu Hsien
Tel: +65 6890 7820
tham.hsuhsien@allenandgledhill.com
The High Court judge allowed the appellant’s appeal in relation to the right to
inspect pursuant to section 199(3) of the CA but dismissed the application for
specific discovery which was made pursuant to the Rules of Court.
Back to Contents Page
Dispute Resolution
Singapore Court of Appeal considers the application of
dispute resolution clauses in related agreements, and the
drafting of triggering event clauses when dealing with
foreign companies
Astrata (Singapore) Pte Ltd v Portcullis Escrow Pte Ltd & Anor and other
matters [2011] SGCA 20
In Astrata (Singapore) Pte Ltd v Portcullis Escrow Pte Ltd & Anor and other
matters, the Singapore Court of Appeal considered whether two parties to an
escrow agreement were obliged to refer a dispute under that agreement to
arbitration, if that escrow agreement was entered into as a result of a
separate agreement between those parties that contained an arbitration
clause. The Court of Appeal also considered the proper application and
drafting of “triggering event” clauses in the context of non-Singapore
companies.
The parties
Astrata (Singapore) Pte Ltd (“Astrata”) was a company incorporated in
Singapore and was part of a group of companies where the parent company
was incorporated in the US (“AGI”). In April 2007, Astrata entered into a
Supply Agreement to develop and supply an electronic plate system
(the “Supply Agreement”) to Tridex Technologies Pte Ltd (“Tridex”).
The agreements
The Supply Agreement was defined as comprising the Supply Agreement
itself and any Points of Agreement (“PoA”) which may be subsequently
executed between Astrata and Tridex. The Supply Agreement provided for
arbitration with respect to any disputes between the parties, namely Astrata
and Tridex.
Legal Bulletin June 2011
13
Pursuant to a PoA executed in October 2007, Astrata, Tridex and Portcullis
Escrow Pte Ltd (“Portcullis”) entered into an Escrow Agreement (the “Escrow
Agreement”), which designated Portcullis as the Escrow Agent to hold the
Comprehensive Source Code and the Comprehensive Engineering Diagrams
(the “Escrow Property”) which Astrata was required to deliver to Tridex under
the Supply Agreement. The Escrow Agreement provided for a dispute
resolution mechanism and for submission to the non-exclusion jurisdiction of
the Singapore court.
The Escrow Agreement stipulated a list of events which would trigger the
release of the Escrow Property to Tridex (the “Triggering Event”), which
included where a “receiver, administrator or similar officer” had been
appointed over all or any part of AGI’s assets, or where AGI had “made any
arrangement for the benefit of its creditors”.
Bilateral dispute
In August 2009, AGI sought Chapter 11 bankruptcy reorganisation under the
US Bankruptcy Code. Its final reorganisation plan was confirmed by the
competent US court with effect in January 2010 (“AGI’s Chapter 11”). A
Litigation Trustee was appointed pursuant to a reorganisation plan for AGI.
In February 2010, Tridex purported to terminate the Supply Agreement,
alleging that it had been breached by Astrata. At the same time, Tridex
informed Portcullis that AGI’s Chapter 11 constituted a Triggering Event as it
was an arrangement for the benefit of AGI’s creditors, and requested the
release of the Escrow Property. Astrata objected to Tridex’s claim that AGI’s
Chapter 11 constituted a Triggering Event and instructed Portcullis not to
release the Escrow Property (the “Bilateral Dispute”).
Astrata subsequently filed an injunction application in the Singapore court
seeking, inter alia, to restrain the delivery of the Escrow Property, pending
determination of the dispute by an arbitral tribunal constituted under the
Supply Agreement. Portcullis responded by filing an application for a
declaration as to whether a Triggering Event had occurred, thereby entitling
it to release the Escrow Property to Tridex. Astrata sought a stay in this
regard, further to section 11A of the International Arbitration Act, until final
determination by an arbitral tribunal.
Issues
The Court of Appeal identified the primary issue as whether the Bilateral
Dispute under the Escrow Agreement was subject to the arbitration clause
set out in the Supply Agreement. The secondary question was whether AGI’s
Chapter 11 was in fact a Triggering Event.
Application of arbitration clause
The Court of Appeal held that since the Bilateral Dispute arose out of the
Escrow Agreement, it would prima facie fall to be resolved under the dispute
resolution mechanism in the Escrow Agreement. This would be the case
unless the dispute resolution mechanism had been displaced by the
arbitration agreement between Astrata and Tridex in the Supply Agreement.
After considering the entire agreement clauses in both the Supply
Agreement and the Escrow Agreement, the Court of Appeal held that the
words used did not evince an intention that the arbitration agreement in the
Supply Agreement should apply to disputes arising from the Escrow
Agreement. The parties had submitted to the jurisdiction of the Singapore
court with respect to the Bilateral Dispute by reason of the non-exclusive
jurisdiction clause in favour of Singapore.
Legal Bulletin June 2011
14
The Court of Appeal did not agree with the argument that since the Escrow
Agreement was a trilateral agreement between Astrata, Tridex and Portcullis,
that the dispute mechanism under the Escrow Agreement only applied to
trilateral disputes involving all three parties. The language of the dispute
mechanism clause was broad enough to include a dispute involving only two
parties to the Escrow Agreement.
Triggering event
The Court of Appeal held that Tridex was not entitled to delivery of the
Escrow Property as a Triggering Event had not occurred, and ruled that:
(a)
A Litigation Trustee in a Chapter 11 reorganisation was not analogous
to a “receiver” as contemplated in the Escrow Agreement; and
(b)
AGI’s Chapter 11 was not an “arrangement for the benefit of its
creditors” as contemplated in the Escrow Agreement.
Drafting dispute resolution and triggering event clauses
In its Grounds of Decision, the Court of Appeal noted that the parties’ legal
advisors, if any, had failed to express clearly and explicitly whether any
dispute between Astrata and Tridex in relation to the Escrow Property was
subject to arbitration under the Supply Agreement. The Court of Appeal
further noted that it was this omission that had led to serious disagreement
between the parties, and which was a simple step that should have been
taken.
If you would like to discuss the
impact of this case on your
business, please contact:
Jason Chan
Tel: +65 6890 7892
jason.chan@allenandgledhill.com
William Ong
Tel: +65 6890 7894
william.ong@allenandgledhill.com
The Court of Appeal also noted that the draftsman appeared to have simply
incorporated boilerplate clauses that had been drafted for use in the context
of an English model of companies’ insolvency legislation, into a commercial
agreement to which a US company was a party. The Court of Appeal
expressed concern that such clauses were applicable only to business
transactions between Singapore and/or UK incorporated companies, and
had been incorporated without much thought as to whether the triggering
events countenanced therein would have been appropriate for AGI (in this
case) and non-Singapore corporate bodies.
Back to Contents Page
Media & Telecommunications
ICANN approves creation of new website addresses ending
in corporate names
On 20 June 2011, the Board of Directors of the Internet Corporation for
Assigned Names and Numbers (ICANN) approved a plan to increase the
number of Internet domain name endings, called generic top-level domains
(gTLDs), to include the creation of website addresses ending in corporate
names.
This development will allow businesses to market their brand, products,
community or cause in new and innovative ways which will better reflect and
promote their online presence. Businesses will no longer be restricted to the
current gTLDs of “.com”, “.org” and “.net” and can look forward to new gTLDs
such as “.shop”, “.car” and “.movie”. According to the ICANN, Internet
address names will be able to end with almost any word in any language.
Legal Bulletin June 2011
15
ICANN intends to start a global campaign about this dramatic change in
Internet names and to raise awareness of the opportunities afforded by new
gTLDs.
Timeline for applications
Applications for new gTLDs will be accepted from 12 January 2012 to
12 April 2012.
About ICANN
For further information, please
contact:
Dr Stanley Lai, SC
Tel: +65 6890 7883
stanley.lai@allenandgledhill.com
Low Pei Lin
Tel: +65 6890 7516
low.peilin@allenandgledhill.com
The ICANN is a not-for-profit public-benefit organisation dedicated to keeping
the Internet secure, stable and interoperable. It aims to promote competition
and develop policy on the Internet's unique identifiers. It holds three public
meetings each year, which are rotated among countries in the five different
regions of North America, South America, Asia-Pacific, Europe and Africa
and attract over 1,000 participants from the industry and governments.
st
Singapore is the host of the 41 ICANN public meeting which took place in
Singapore from 19 to 24 June 2011 where participants from members of the
info-communication establishments worldwide will discuss issues revolving
around the management and coordination of key policy, operational,
technical and security issues concerning the Internet.
Tan Wee Meng
Tel: +65 6890 7518
tan.weemeng@allenandgledhill.com
Reference materials
Tham Kok Leong
Tel: +65 6890 7526
tham.kokleong@allenandgledhill.com
Please click here to read the press release entitled “ICANN approves historic
change to Internet's domain name system” dated 20 June 2011 from the
ICANN website www.icann.org.
Back to Contents Page
IDA issues decision on net neutrality
On 16 June 2011, the Info-communications Development Authority of
Singapore (the “IDA”) issued a decision and explanatory memorandum
(“Decision”) setting out a summary of responses received and the IDA’s
decision following its public consultation on “Net Neutrality” which was issued
on 11 November 2010 and closed on 27 December 2010.
“Net neutrality” generally refers to Internet service providers (“ISPs”) or
network providers treating all sources of Internet content equally, and the
right of a consumer to access content and services on the Internet on a nondiscriminatory basis.
IDA’s policy approach towards net neutrality
In the Decision, IDA reviews and analyses the responses it received, and
summarises its policy approach towards net neutrality as follows:

ISPs and telecom network operators are prohibited from blocking
legitimate Internet content, and from imposing discriminatory practices,
restrictions, charges or other measures which, while not amounting to
outright blocking, will render any legitimate Internet content effectively
inaccessible or unusable. Legitimate content refers to all content that is
not considered unlawful under local legislation and regulations. However,
the IDA cautions that end-users cannot expect access to content that is
restricted by content owners for various purposes unless the content
owners grant access;
Legal Bulletin June 2011
16

ISPs and telecom network operators must comply with the IDA’s
competition and interconnection rules in the Telecom Competition Code
2010;

ISPs and telecom network operators must comply with the IDA’s
information transparency requirement and disclose to end-users their
network management practices and typical Internet broadband download
speeds;

ISPs must meet the minimum broadband Quality of Service (“QoS”)
standards to ensure a reasonable broadband Internet experience for
end-users;

Reasonable network management practices are allowed, provided that
the minimum Internet broadband QoS requirements are adhered to, and
that such practices will not render any legitimate Internet content
effectively inaccessible or unusable; and

ISPs and telecom network operators are allowed to offer niche or
differentiated Internet service offerings that meet the IDA’s information
transparency, minimum QoS standards and fair competition
requirements (including on interconnection).
The IDA clarified in the Decision that the net neutrality policy and the
prohibition of blocking of legitimate Internet content apply to fixed-line,
wireless and mobile Internet services.
Areas for further review by IDA
In the Decision, IDA indicated that it would undertake a review of the
following within the next 12 to 18 months:

QoS requirements imposed on ISPs that provide fixed-line or
mobile Internet broadband services: The IDA will study mandating
QoS requirements on ISPs providing mobile Internet broadband
services. It will also continue to monitor the QoS standards for fixed-line
Internet broadband and review the need to enhance these QoS
requirements in order to ensure that end-users can continue to enjoy a
reasonable quality of Internet access;

Enhancing the information transparency requirements imposed on
ISPs that provide fixed-line or mobile Internet broadband services:
The IDA intends to study the feasibility for ISPs providing mobile Internet
broadband services to disclose their network management practices, as
well as review whether the current publications of information related to
Internet broadband services are sufficiently useful and clear for endusers. The IDA notes that the various information disclosures on network
management practices and typical Internet broadband access speeds by
the ISPs could possibly be aligned or streamlined to prevent confusion
and improve ease of understanding for consumers; and

Assessing the feasibility of introducing the concept of a “cooling
down” period: The IDA recognises that even with information
transparency on network management practices and typical broadband
speeds, some consumers may not fully understand how these would
impact their Internet surfing experience. Hence, the IDA is prepared to
assess the feasibility of introducing the concept of a “cooling down”
period which allows consumers to terminate their services if they are
dissatisfied about the impact of the ISPs’ traffic management practices
on their Internet surfing experience. The IDA will consider the consumer
benefits (such as the ease of terminating services or seeking recourse
Legal Bulletin June 2011
17
for unsatisfactory service levels), versus the impact and costs on the
ISPs (for example, increased complexity in customer acquisition and
termination processes, and the costs of ceasing services).
Reference materials
For further information, please
contact:
Tan Wee Meng
Tel: +65 6890 7518
tan.weemeng@allenandgledhill.com
Tham Kok Leong
Tel: +65 6890 7526
tham.kokleong@allenandgledhill.com
Please click here for IDA’s Decision dated 16 June 2011 which is available
on the IDA website www.ida.gov.sg.
An article about the public consultation on net neutrality was featured in a
previous issue of the Allen & Gledhill LLP Legal Bulletin (November 2010).
Please click here to read the article entitled “IDA Consults on Policy
Framework for Net Neutrality”.
Back to Contents Page
Singapore Exchange
SGX announces initiatives to reduce bid size and cut
trading cost
On 31 May 2011, the Singapore Exchange Limited (the “SGX”) announced that
it will reduce the minimum bid size for securities with effect from 4 July 2011.
To cater to the narrowing of the bid sizes, the SGX will widen the Forced
Order Range for all securities to +/- 20 bids from +/- 10 bids across all price
ranges. Forced Order Range is a pre-execution mechanism which helps
investors to avoid error trades when entering prices of orders. Any orders
outside the Forced Order Range must be confirmed by the use of the Forced
Key function before those orders can be submitted.
The revised Minimum Bid Size and wider Forced Order Range will apply to
all securities traded on the SGX save for exchange traded funds, loan stocks
and bonds.
Background
For further information, please
contact:
Francis Mok
Tel: +65 6890 7786
francis.mok@allenandgledhill.com
Karen Tiah
Tel: +65 6890 7741
karen.tiah@allenandgledhill.com
Wong Sook Ping
Tel: +65 6890 7794
wong.sookping@allenandgledhill.com
The SGX conducted a public consultation in September 2009 on its proposal
to reduce the minimum bid size for securities. The aim of this change is to
lower the cost of trading for investors, enhance market liquidity through
increased trading volume and increase competitiveness of the SGX-ST.
For a summary of these proposals in the SGX consultation, please click here
to read an article entitled “SGX releases consultation paper on proposals to
reduce minimum bid sizes and widen Forced Order Range” which was
featured in a previous issue of the Allen & Gledhill Financial Services Bulletin
(September 2009).
Reference material
Please click here to view the press release dated 31 May 2011 on the SGX
website www.sgx.com. A copy of the press release is attached.
Back to Contents Page
Legal Bulletin June 2011
18
SGX offers trading of Singapore government bonds
With effect from 8 July 2011, investors will be able to access Singapore
government bonds (“SGS bonds”) prices on Singapore Exchange Limited’s
(the “SGX”) website or through their brokers, and trade SGS bonds through
their brokers in a manner similar to the way stocks are traded on the SGX.
Currently, investors can only buy and/or sell SGS bonds through dealer banks.
The SGX announced this development in a press release on 8 June 2011.
Safe investment alternative providing capital protection and steady
returns at reduced trading cost
This new offering of SGS bonds by the SGX is aimed at providing investors
with a safe investment alternative that can give both capital protection and
steady returns. Improved price transparency and liquidity in SGS bonds are
expected to result in reduced trading cost for the investors.
For further information, please
contact:
Francis Mok
Tel: +65 6890 7786
francis.mok@allenandgledhill.com
Karen Tiah
Tel: +65 6890 7741
karen.tiah@allenandgledhill.com
Wong Sook Ping
Tel: +65 6890 7794
wong.sookping@allenandgledhill.com
CDP holds SGS bonds as custodian
The SGX’s Central Depository (“CDP”) will hold the SGS bonds as custodian
before they can be traded. With CDP as custodian of an investor’s securities
and fixed income investments, investors will be able to view all their holdings
via a single statement from CDP. For details, please refer to
www.sgx.com/fixedincome/sgs.
Reference material
Please click here to view the press release issued on 8 June 2011 from the
SGX website www.sgx.com.
Back to Contents Page
General
English Court of Appeal finds entire agreement clause not
effective to exclude claims for misrepresentation
AXA Sun Life Services PLC v Campbell Martin Ltd & Ors
[2011] EWCA Civ 133
The English Court of Appeal, in AXA Sun Life Services PLC v Campbell
Martin Ltd & Ors [2011] EWCA Civ 133 considered the question of whether
an Entire Agreement clause can exclude liability for misrepresentations
made by a party to the contract. After reviewing the construction and wording
of the clause and several authorities on this issue, the court held that the
Entire Agreement clause in question did not operate to exclude liability for
misrepresentation. This decision is also of interest in terms of the court’s
pronouncements as to how parties to an agreement may properly seek to
exclude liability for misrepresentation.
The Facts
The court was asked to consider the effect of certain provisions in standard
form adviser agreements entered into between the plaintiff, AXA Sun Life
Services PLC (“AXA”) and AXA’s appointed representatives, which included
the first defendants, Campbell Martin Ltd (“Campbell Martin”). The court
Legal Bulletin June 2011
19
noted that AXA’s agreement with Campbell Martin and AXA’s claim against
Campbell Martin was typical of its agreements with and claims in respect of
the other defendants.
AXA had terminated its agreements with Campbell Martin, upon which AXA
claimed there became due from Campbell Martin a sum of money. Campbell
Martin, on the other hand, alleged that they had been induced to enter into
the agreements by misrepresentations given by AXA, and that they had
suffered loss and damage as a result.
On appeal, AXA argued, inter alia, that the Entire Agreement clause (the
“Clause”) in the agreements was effective as a matter of its true construction
to exclude misrepresentation or liability for them. Campbell Martin argued
that the Clause was insufficiently clear and unequivocal to exclude
misrepresentations or liability for them.
The Clause in question stated as follows:
“This Agreement and the Schedules and documents referred
to herein constitute the entire agreement and understanding
between you and us in relation to the subject matter thereof.
Without prejudice to any variation as provided in clause 1.1.,
this Agreement shall supersede any prior promises,
agreements, representations, undertakings or implications
whether made orally or in writing between you and us
relating to the subject matter of this Agreement but this will
not affect any obligations in any such prior agreement which
are expressed to continue after termination.”
Entire Agreement clauses do not exclude liability for
misrepresentations
The court was of the view that the Clause did not exclude liability for
misrepresentations of any kind. In his judgment, Rix LJ divided the Clause
into four parts as follows:
“(i)
This Agreement and the Schedules and documents
referred to herein constitute the entire agreement and
understanding between you and us in relation to the
subject matter thereof.
(ii)
Without prejudice to any variation as provided in clause
1.1,
(iii) this Agreement shall supersede any prior promises,
agreements, representations, undertakings or
implications whether made orally or in writing between
you and us relating to the subject matter of this
Agreement
(iv) but this will not affect any obligations in any such prior
agreement which are expressed to continue after
termination.”
Rix LJ noted that the critical part which was relied on by AXA was part (iii) of
the Clause. The court further observed that part (i) was a straightforward
statement in conventional terms that the contract was the entire agreement
between the parties; that part (ii) was a carve-out in favour of any existing
formal agreement between the parties, but stating that the contract operates
as a variation of that agreement; and that part (iv) was a carve-out in favour
Legal Bulletin June 2011
20
of prior agreements which were expressed to continue after termination of
the contract. Thus, the court noted that parts (i), (ii) and (iv) were all
concerned with identifying the parties' contractual arrangements.
AXA argued that part (iii) of the Clause operated to eliminate and/or to
exclude liability for misrepresentations, either altogether, or at least in
respect of misrepresentations as to the terms of the contract. The court was
not persuaded by AXA’s argument, on the basis that the Clause as a whole
was concerned with agreements rather than misrepresentations, and that the
word "misrepresentations" did not appear in it.
The court noted that, while the word "representations" did appear in the
Clause, it was “completely sandwiched between words of contractual import”,
namely, prior "promises, agreements … undertakings or implications". The
court also observed that:
“…part (iii) did not in terms state either that no
representations had been made, or that no reliance had
been placed on any representations, or that liability for
(mis)representations was excluded: each of which is a
traditional way in which potential liability for
misrepresentations is sought to be avoided”.
In the circumstances, the court regarded the Clause as being concerned only
with matters of agreement, and not with misrepresentation at all. The court held
that, where the word "representations" takes its place alongside other words
which express contractual obligations, “talk of the parties' contract superseding
such prior agreement will not by itself absolve a party of misrepresentation
where its ingredients can be proved”. Citing the decision in BSkyB Ltd v HP
Enterprise Services UK Ltd [2010] EWHC 86, the court noted that the
“language of ‘representations’ and ‘supersede’ is the language of defining
contractual obligations rather than excluding liability in misrepresentation”.
The court also saw no reason to distinguish between misrepresentations
which related to the terms of the contract, and misrepresentations that did
not. Rather, the court observed that: “almost any representation which, if
relied upon, alters the risk profile of an agreement, might be said in some
sense or other to relate to the terms of an agreement”.
The court noted that the agreement did not contain any “language to the
effect that the parties were agreed that no representations had been made or
relied upon”, and therefore concluded that the Clause did not exclude liability
for misrepresentations of any kind.
How parties may contractually exclude liability for misrepresentation
The court emphasised that any contractual exclusion of liability for
misrepresentation has to be clearly stated in the agreement.
If you would like to discuss the
impact of this case on your
business, please contact:
Kenneth Lim
Tel: +65 6890 7811
kenneth.lim@allenandgledhill.com
Ramesh Selvaraj
Tel: +65 6890 7859
ramesh.selvaraj@allenandgledhill.com
While acknowledging that “all such cases are only authority for each clause’s
particular wording”, the court nonetheless proceeded to enunciate the means
by which a contracting party may seek to exclude liability for
misrepresentation:
(a)
By way of a clause stating parties’ agreement that there have been no
representations made;
(b)
By way of a clause stating that there has been no reliance on any
representations; or
(c)
By way of a clause expressly excluding liability for representations.
Back to Contents Page
Legal Bulletin June 2011
21
News
Acquisition of shares in Capital Square Pte Ltd
Alpha Asia Macro Trends Fund Limited, in its joint venture (through a
subsidiary) with NTUC Income, has completed the acquisition of shares in
Capital Square Pte Ltd, which owns the property known as “Capital Square”.
The consideration for the share purchase is approximately S$889 million.
Advising Alpha Investment Partners Limited, as fund manager of Alpha Asia
Macro Trends Fund Limited, are Allen & Gledhill LLP Partners Penny Goh,
Richard Young, Chiam Tao Koon, Sonita Jeyapathy, Fock Kah Yah and Tan
Boon Wah, Senior Associates Jennifer Lee, Sabrina Chia and Shalene Jin
and Associates Joslynn Poh and Jamie He.
Back to Contents Page
Cache-MTN Pte. Ltd.’s S$500 million multicurrency medium
term note programme
Cache-MTN Pte. Ltd. (the “Issuer”), a wholly-owned subsidiary of HSBC
Institutional Trust Services (Singapore) Limited (in its capacity as trustee of
Cache Logistics Trust) (the “Cache Trustee”), has established a S$500
million multicurrency medium term note programme (the “Programme”)
pursuant to which the Issuer may issue notes (the “Notes”) to be guaranteed
unconditionally and irrevocably by the Cache Trustee. Australia and New
Zealand Banking Group Limited (“ANZ”) has been appointed as arranger
and dealer of the Programme.
Advising the Issuer and ARA-CWT Trust Management (Cache) Limited, as
manager of Cache Logistics Trust, are Allen & Gledhill LLP Partners Jerry
Koh and Long Pee Hua.
Advising ANZ are Allen & Gledhill LLP Partner Margaret Chin, Senior
Associate Ong Kangxin and Associate Chor Zhi Chao.
Advising The Bank of New York Mellon, as issuing and paying agent, agent
bank and trustee for the holders of the Notes, are Allen & Gledhill LLP
Partners Glenn David Foo and Daselin Ang.
Back to Contents Page
Mandatory unconditional cash offer for Kim Eng Holdings
Limited
Mayban IB Holdings Sdn. Bhd. (formerly known as Aseam Credit Sdn Bhd)
(the “Offeror”), a wholly-owned subsidiary of Malayan Banking Berhad
(“Maybank”), entered into separate share purchase agreements with Mr
Ronald Anthony Ooi Thean Yat and Yuanta Securities Asia Financial
Services Limited for the acquisition of 257,559,264 shares in the capital of
Kim Eng Holdings Limited (“Kim Eng”) (the “Acquisition”) for an aggregate
consideration of approximately S$800 million.
Legal Bulletin June 2011
22
The Offeror further acquired approximately 5.59% of ordinary shares in Kim
Eng from the market and upon satisfaction of the key conditions of the share
purchase agreements, made a mandatory unconditional cash offer for all the
ordinary shares in the capital of Kim Eng, other than those shares already
owned by the Offeror, its related corporations and their respective nominees.
The deal value is approximately S$1.8 billion.
Advising Maybank and the Offeror are Allen & Gledhill LLP Partners Lucien
Wong, Lim Mei, Francis Mok, Hoo Sheau Farn, Hilary Low, Zahedah Abdul
Rashid, Senior Associates Loh Tann-Ling and Tan Teng Sen and Associates
Julia Kan and Nicholas Chee.
Advising Nomura Singapore Limited, as the financial advisor of the Offeror, are
Allen & Gledhill LLP Partner Lee Kee Yeng and Associate Au Yeong Wai Mun.
Back to Contents Page
Successful completion of S$982.6 million IPO of Mapletree
Commercial Trust
Mapletree Commercial Trust has on 27 April 2011 successfully completed its
S$982.6 million initial public offering (“IPO”). Citigroup Global Markets
Singapore Pte. Ltd., DBS Bank Ltd., Deutsche Bank AG, Singapore Branch
and Goldman Sachs (Singapore) Pte. are the Joint Global Co-ordinators for
the IPO. Citigroup Global Markets Singapore Pte Ltd., CIMB Bank Berhad,
Singapore Branch, DBS Bank Ltd., Deutsche Bank AG, Singapore Branch
and Goldman Sachs (Singapore) Pte. are the Joint Bookrunners, Issue
Managers and Underwriters for the IPO.
Advising the Joint Global Co-ordinators and the Joint Bookrunners, Issue
Managers and Underwriters are Allen & Gledhill LLP Partners Jerry Koh, Ho
Kin San, Chua Bor Jern, Ernest Teo, Serena Choo, and Teh Hoe Yue and
Associate Loh Zhi Jun.
Back to Contents Page
Establishment of Overseas Union Enterprise Limited’s S$1
billion multicurrency medium term note programme
Overseas Union Enterprise Limited (“OUE”) has established a S$1 billion
multicurrency medium term note programme (the “Programme”) under
which OUE may from time to time issue multicurrency medium term notes in
an aggregate principal amount outstanding at any one time not exceeding
S$1 billion. The Programme is listed on the Singapore Exchange Securities
Trading Limited. Standard Chartered Bank acted as the arranger (the
“Arranger”), the dealer, the issuing and paying agent (the “Issuing and
Paying Agent”). British and Malayan Trustees Limited acted as the notes
trustee (the “Trustee”) for the Programme.
Advising the Arranger, the Issuing and Paying Agent and the Trustee as to
Singapore law are Allen & Gledhill LLP Partners Margaret Chin and Daselin
Ang and Associate Chor Zhi Chao.
Back to Contents Page
Legal Bulletin June 2011
23
Perennial China Retail Trust raises S$776.2 million in IPO
Perennial China Retail Trust (“PCRT”) has raised gross proceeds of S$776.2
million in the initial public offering (“IPO”) of units in PCRT. The IPO
proceeds will be used to fund the acquisition of Shenyang Red Star
Macalline Furniture Mall, Shenyang Longemont Shopping Mall and the
Shenyang Longemont Offices through the acquisition of 50% of the equity
interest in Shenyang Summit Real Estate Development Co., Ltd.
Advising Perennial China Retail Trust Management Pte. Ltd. (as the trusteemanager of PCRT) and Perennial Real Estate Pte. Ltd. (as the sponsor of
PCRT) are Allen & Gledhill LLP Partners Jerry Koh and Long Pee Hua,
Senior Associate Henry Tan Huan Lee, and Associates Wu Zhiyou and
Rubhan Krishnaswamy.
Back to Contents Page
Allen & Gledhill LLP wins coveted Singapore Deal Firm of
the Year at ALB SE Asia Law Awards
For the sixth consecutive year, Allen & Gledhill LLP has won the coveted
Singapore Deal Firm of the Year at the Asian Legal Business (ALB) SE Asia
Law Awards. The awards are presented by ALB and Thomson Reuters.
For more information, please click here.
Back to Contents Page
Legal Bulletin June 2011
24
Allen & Gledhill LLP
One Marina Boulevard #28-00
Singapore 018989
Telephone
Facsimile
EFS mailbox Id
E-mail
Website
+65 6890 7188
+65 6327 3800
ale7001
ale7003
enquiries@allenandgledhill.com
www.allenandgledhill.com
Allen & Gledhill LLP (UEN/Registration No. T07LL0925F) is registered in Singapore under the Limited Liability Partnerships Act
(Chapter 163A) with limited liability. A list of the Partners and their professional qualifications may be inspected at the address
specified above. Contact particulars of the Partners may be found on the Allen & Gledhill LLP website www.allenandgledhill.com