Legal Updates

When is a ‘bill of lading’ not a true bill of lading?

The LUNA [2021] SGCA 84

02.09.2021 | Singapore

A bill of lading has three distinct functions: (i) as a receipt by the carrier of the goods for shipment; (ii) as a contract of carriage or as evidence of a contract of carriage; and (iii) as a document of title.

As a document of title, a bill of lading allows the lawful holder of the bill to demand delivery of the goods from the carrier and, if necessary, to sue for misdelivery. This is particularly important for financial institutions who hold the bills of lading as security for financing the sale and purchase of goods, and who may need to assert their right of possession over the goods where loans are not repaid.

In this recent decision of the Singapore Court of Appeal, the Court found that the holders of the bills of lading were not entitled to bring a claim for misdelivery against the ship interests because, on their true construction and taking into account the terms of the underlying sale contract, those bills did not operate either as contracts of carriage or as documents of title.

To read the full chapter, please click here

Should you have any questions, do get in touch with your usual contact at Incisive Law or any of the authors below.

Authors

Loh Wai Yue
Grace Goh

ICLG Legal Guides 2021 – Singapore Shipping Laws and Regulations chapter

18.08.2021 | Singapore

We are delighted to be a contributor to the exclusive Singapore Shipping Laws and Regulations chapter – ICLG Legal Guides 2021.

 The guide focuses on common issues in shipping laws and regulations – including marine casualty, cargo claims, passenger claims, arrest and security in Singapore.

To read the full chapter, please click here

Should you have any questions, do get in touch with your usual contact at Incisive Law or any of the authors below.

Authors

Adoption of the Chinese Civil Law Code: Key Takeaways for the Commodities Industry

30.12.2020 | Singapore

The new Chinese Civil Code (the “Code”) has been passed by the 13th National People’s Congress on 28 May 2020 and is due to come into force on 1 January 2021. The Code has maintained the structure and main concepts of existing PRC laws, but seeks to enhance existing PRC laws by providing further clarification by way of the detailed articles drafted. The Code consists of 1,260 articles and seeks to regulate the various aspects of civil society, including contracts, torts, private property, etc.

The purpose of this article is to provide a (non-exhaustive) general overview to the key aspects regulated by the Code with a focus on the laws relating to (1) contracts (2) guarantees on debts, and (3) storage contracts for foreign companies carrying on businesses in China. We aim to highlight some key provisions foreign businesses operating in China should pay attention to when conducting their businesses in China under the enhanced civil law regime.

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Feel free to get in touch with your usual contact at Ince or any of the authors for more information.

Authors

The Legal 500 Shipping Guide – Hot Topic: Fraudulently-issued Letters of Indemnity – Risks, Mitigation, and Prevention

02.12.2020 | Singapore

Introduction – the contraction of Singapore’s Trade Finance industry

The recent spate of allegations of fraud or foul-play that have rocked Singapore’s beleaguered commodities market, and in particular the oil trading industry have brought to light the significant effect of various pervasive practices that are seemingly innocuous, but have potentially left the trade-finance banking industry reeling from billions of losses.

To name a few examples, the immediate short-term impact of the Hin Leong Trading (Pte) Ltd., Zenrock Commodities Trading Pte Ltd and Hontop Energy (Singapore) Pte Ltd sagas has seen various banks either ceasing their regional trade commodity finance operations, or exiting the trade and commodity financing industry altogether.

One only needs to look at ABN Amro Bank, who is ending all of their engagements in trade and commodity financing and shedding 800 jobs in the process, a decision that is at least in part linked to its overall exposure of around US$300 million to Hin Leong.

Likewise, Societe Generale SA (“SocGen”) was reportedly closing its trade commodity finance unit in Singapore and has halted fresh funding to trade finance firms in the region. Large Asian commodities trading clients with operations in Singapore would henceforth be handled by SocGen’s Hong Kong office, with SocGen ceasing ties with Singapore-based small and medium commodities trading firms.

Australia and New Zealand Banking Group has also reportedly decided to only service their existing commodity trading clients and will not take on any new business in commodity finance, following its exposure to Hin Leong Trading.

In this article, we will examine the role of letters of indemnity in international trade transactions, and the risks associated with its use in the commodities industry. We will conclude by looking at what steps can be taken by the industry as a whole to mitigate and prevent these risks.

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Feel free to get in touch with your usual contact at Ince or any of the authors for more information.

Authors

Proposed Changes to Singapore Data Protection Law

06.10.2020 | Singapore

Earlier this year in May, the Ministry of Communications and Information and the Personal Data Protection Commission (“Commission”) invited feedback from the public on the draft Personal Data Protection (Amendment) Bill (“Bill”). The Bill proposes significant amendments to the Personal Data Protection Act 2012 (“PDPA”) that has been in force in Singapore since July 2014.

Counter-drone systems are failing spectacularly against the continued proliferation and use of the drone technology, which is rapidly outpacing the systems put in place to check and adequately safeguard drone ‘threats’ especially in commercial environment(s).

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Author

Piyush Gupta

Counter-Drone Tech and the Challenges Thereof

27.08.2020 | Insight

Drone detection technologies have been a blind spot for most governments across the world, and it gains significance in the current times considering that drones are now being used for commercial purposes. Thus, protecting civilians and civilian infrastructure from drone threats is increasingly becoming a broad but a very specific task. Drone threats may arise from as simple a case as of carelessness (such as a drone flying too close to an airport ) to as grave and mala fide as a drone bearing ammunitions hitting a bridge, or a building (as an act of terrorism).

Counter-drone systems are failing spectacularly against the continued proliferation and use of the drone technology, which is rapidly outpacing the systems put in place to check and adequately safeguard drone ‘threats’ especially in commercial environment(s).

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Author

Piyush Gupta

Drones – A New Frontier

13.08.2020 | Insight

Unmanned Aircraft Systems / Vehicles (UAS UAV – or Drones, as they are commonly known) refer primarily to an unmanned aircraft which is guided by a remote control.

The very first attempt to use a contraption that could be flown on its own accord was reported in the 1800s, when Austrians attacked the city of Venice with balloons laden with explosives. The first pilotless aircraft was designed by the US Army during World War I. These unmanned aerial vehicles could not, however, be used during the war as by the time they were actually developed, the war had ended. Nonetheless, these UAVs called ‘Kettering Bugs’ were meant to fly as aerial torpedoes. Later, during the 1930s, the United States and England, both independently developed the world’s first radio-controlled aircraft. In 1935, the British developed “Queen Bee”, a radio-controlled target drone, which is also believed to have led to the use of term “drone,” for radio-controlled unmanned aircraft.

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Author

Piyush Gupta

Singapore Legal Update – The Insolvency, Restructuring and Dissolution Act: An Overview

04.08.2020 | Singapore

The Insolvency, Restructuring and Dissolution Act 2018, (Act No.40 of 2018, the “Act”) , which came into force on 30 July, marks, for now at least, the final stage in what has been a far-reaching overhaul of Singapore’s insolvency and debt restructuring regime.

This process had started in 2015 with some amendments to the Bankruptcy Act (Cap 20). Then, in 2017, significant amendments were made to the Companies Act (Cap 50), in respect of both judicial management orders and schemes of arrangement. In particular, aspects of the “Chapter 11” procedure of the US Bankruptcy Code were imported into a system that has historically always looked to English company and insolvency law for inspiration – if that is the right word – and provisions were enacted to deal with various aspects of cross-border insolvency.

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Author

Bill Ricquier

Temporary Relief for Tenants in Singapore during the COVID-19 Pandemic – Part 1

17.07.2020 | Singapore

It is impossible to exaggerate the significance of landlord and tenant law in Singapore. The steady accretion of land to ultimate Government ownership since the passing of the Land Acquisition Act in 1966 has inevitably reduced the amount of land held in fee simple.

More to the point, almost all businesses in Singapore, whoever owns and operates them, rent their business premises. This is most obviously the case in respect of industrial premises rented from the Jurong Town Corporation, but it is equally true of businesses operating in retail areas such as Orchard Road, and offices in the Central Business District. For a variety of reasons, it just makes sense to rent.

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Author

Bill Ricquier

Competition Commission of India Exempts Cartel Behaviour

16.07.2020 | India

Vide its order dated 10 July 2020 (‘Order’), the Competition Commission of India (‘CCI’) found that ten (10) enterprises had indulged in cartelisation during the period 2009 to 2017. Curiously however, instead of imposing any fine or penalty, the errant companies were given a mere rap on their hands and let off with a warning[1].

While the CCI has cited various factors in taking this ‘measure’ – being the current economic scenario, the enterprises being micro, small and medium enterprises (‘MSMEs’), the level of cooperation accorded by the enterprises etc., the Order seemingly is in contravention to the CCI’s own advisory of April this year[2] (‘Advisory’).   

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 Author

Piyush Gupta

Competition Commission of India seeks public consultation over non-compete restrictions under merger filings

04.06.2020 | India

The Competition Commission of India (“CCI”) is seeking public consultation over its plans to omit the requirement for companies to provide information regarding non-compete restrictions under the regulation for combinations[1] (“Public Consultation”). The premise for issuing the Public Consultation is that ‘prescribing a general set of standards for assessment of non-compete restrictions may not be appropriate in modern business environments.’

It may be recalled that in 2017, the CCI had, vide Guidance Note on non-compete restrictions[2], opined that non-compete clauses should be “directly related and necessary to the combination” in order to be considered “ancillary” to the combination and, thus, merit approval.

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Author

Piyush Gupta

Fixing of domestic airfares by Indian government: a mode to be replicated by other countries?

04.06.2020 | India

Setting aside our aspersions on the manner in which domestic air travel was recommenced in India – by way of a tweet by the aviation minister catching the airlines unawares  – the government’s decision to “control” the ticket prices, at least in the short term (3 months), is, I feel, a masterstroke.

Just from a policy perspective, the government has consistently maintained that it is against capping of airfares in any form in India, citing that the competition amongst the airlines will take care of any pricing concerns. It is imperative to point out that price controls are usually counterproductive in the long run. Price controls typically tent to lead to problems of shortages, rationing, deterioration of product quality, and even black markets and thus, the Indian government had previously avoid the temptation of setting prices and, instead, allowed the airline market to function independently through the auspices of demand and supply.

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Author

Piyush Gupta

Covid-19: How has this impacted Singapore as a dispute resolution forum?

21.05.2020 | Dispute resolution

The outbreak of Covid-19 has had a significant impact on how parties are able to commence and continue the conduct of dispute resolution proceedings, especially at the transnational level.

The challenges faced by all involved in litigation and arbitration are unprecedented. Legal practitioners, in-house counsel, arbitrators and judges alike are no longer able to rely on traditional procedural and administrative practices. Social distancing measures have resulted in court closures globally (save for urgent matters). Telecommuting has become a way of life. We have witnessed the inevitable increase in use of virtual platforms to support remote court and arbitration hearings. Electronic exchange and service of documents have become the new normal.

We consider in this article the main draws for litigants, and how Singapore continues to attract litigants in the region and globally, amidst the outbreak of Covid-19.

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Authors

 

Coronavirus and its impact on your contract can you rely on ‘Force Majeure’?

14.02.2020 | Maritime

On 30 January 2020, the World Health Organization (WHO) declared that the outbreak of the Novel Coronavirus (officially the “COVID-19”) was a Public Health Emergency of International Concern. The virus has been spreading rapidly both within China and globally in recent months. Both the Chinese government and other countries have adopted various measures aimed at containing the spread of COVID-19. These measures are causing disruption to international trade and transport, with the consequence that many companies have found themselves either unable to perform their contractual obligations or at risk of not being able to do so in the future. Where affected or potentially affected contracts contain force majeure (“FM”) provisions, the parties should consider if and when these provisions might be successfully invoked as a result of the COVID-19 outbreak.

What is FM?

Although the concept of FM is globally recognised in commercial transactions, there are key differences in the treatment and recognition of FM across different jurisdictions. Under common law systems (such as English law), parties who wish to rely on FM must come within the express wording of the FM clause. The courts will not imply FM in the absence of an express contractual provision.

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Authors