New Acts and Amendment Acts

Patents (Amendment) Act 2001 (A30/2001)

The Patents Act has been amended, largely with effect from 17 October 2001, for the following purposes:

• to introduce a definition for the words 'country' and 'legal officer';
• to provide for a definition for the term 'convention country' in s 17. 'Convention country' refers to: (a) a country other than Singapore that is a party to the Paris Convention or a member of the World Trade Organisation; or (b) any other country with which Singapore has entered into a treaty, convention, arrangement or engagement and which is declared by the Minister, by order published in the Gazette, as a convention country;
• to amend s 26 to enable a filing date to be accorded to an application for a patent even though no claim referred to in s 25(3) of the Act has been filed at the time of application and to require a claim to be filed within the prescribed period;
• to amend s 28 to provide that an application for registration may be examined as to its form only after a claim has been filed in accordance with s 26(8);
• to amend s 29 to provide that the furnishing of both the prescribed details under s 29(1)(c) and the prescribed information under s 29(4) should be done in prescribed forms (this amendment is not in force yet);
• to amend s 35 to provide that, as soon as practicable after a patent has been granted under the Patents Act, the Registrar of Patents must send to the proprietor of the patent a certificate in the prescribed form that the patent has been granted to him and publish in the journal a notice that the patent has been granted;
• to amend s 36: (a) to provide that the grant of a patent takes effect on the date of issue of the certificate of grant; and (b) to remove, in the case of the renewal of a patent previously registered under the repealed Registration of United Kingdom Patents Act, the requirement for a statutory declaration that the patent remains in force in the UK;
• to amend s 42 to enable the register of patents to be kept off-site in an electronic form;
• to extend the definitions of 'relevant ship' and 'relevant aircraft, hovercraft or vehicle' in s 66 to a ship, aircraft, hovercraft or vehicle registered in, or belonging to, a member country of the World Trade Organisation;
• to amend s 94: (a) to provide that a person may only be represented by an advocate and solicitor, a registered patent agent or (in the case of the government) a legal officer of the Singapore Legal Service in proceedings before the Registrar; and (b) to remove the right of a registered patent agent to appear and be heard on behalf of any party to an appeal to the High Court from the Registrar;
• to repeal and re-enact Part XIX comprising ss 104 and 105 (this amendment is not in force yet). New s 104 enables rules to be made for additional matters in relation to the registration of patent agents. These rules include powers and procedures relating to disciplinary proceedings against registered patent agents. New s 105 provides, in addition to the existing requirements relating to the use of the terms 'patent agent' and 'patent attorney', that -

(a) only a registered patent agent, or an advocate and solicitor, with a practising certificate may carry on a business, practise or act as a patent agent; and
(b) a partnership or a body corporate may carry on a business, practise or act as a patent agent only if at least one partner or director, as the case may be, is a registered patent agent, or an advocate and solicitor, with a practising certificate;

• to amend s 115 to enable rules to be made for anything that is required or permitted to be prescribed under the Act; and
• to amend s 116 so that the validity of a patent that is treated thereunder as a patent granted pursuant to an application made under the Act will not lapse if the patent is revoked in the UK after the date of commencement of the Patents (Amendment) Act 2001, ie 17 October 2001.

Legal Profession (Amendment) Act 2001 (A35/2001)

The Legal Profession Act is amended with effect from 1 November 2001 for purposes including the following:

• to require pupils to keep dining terms before their admission as advocates and solicitors;
• to enable a law lecturer of the National University of Singapore or of any department of law in any other institution of higher learning or a State Counsel, Deputy Public Prosecutor or other legal officer of the government of any country to appear and plead in courts in certain circumstances;
• to limit the offence under s 33(3) (of placing the services of an advocate and solicitor at the disposal of another person) to acts done for or in expectation of any fee, gain or reward;
• to extend the exemption in s 34(h) (relating to a law lecturer of the Law Faculty of the National University of Singapore rendering any opinion or acting in an advisory capacity) to other law lecturers of other departments of the National University of Singapore and the law departments of other institutions of higher learning and to limit the exemption to matters in which the law lecturer has been instructed by an advocate and solicitor;
• to empower the Council of the Law Society ('the Council') to appoint not more than three advocates and solicitors to sit on the Council;
• to exempt an advocate and solicitor from compulsory voting in elections to the Council if he satisfies the Registrar of the Supreme Court that he was not in Singapore at the time of the election;
• to constitute one or more Review Committees (consisting of an advocate and solicitor and a legal officer) to review complaints or information against solicitors and to dismiss complaints which are frivolous, vexatious, misconceived or lacking in substance; and
• to empower the Law Society to intervene in a solicitor's practice where the Council is satisfied that a sole solicitor has abandoned his practice or that a solicitor has practised without a practising certificate in force.

Arbitration Act 2001 (A37/2001)
The Arbitration Act 2001 provides a new framework of rules applicable to arbitrations and repeals the existing Arbitration Act. The Arbitration Act 2001 has been gazetted 26 October 2001 but has not come into force yet. The following is a brief description of some of the provisions of the new Act.

Arbitration agreement

• The provision for what constitutes an arbitration agreement (s 4).
• That the death of any party to an arbitration agreement shall not cause the agreement to be discharged or cause an arbitrator's authority to be revoked (s 5).

Stay of legal proceedings

• The provision for the circumstances in which an application to a court to stay legal proceedings in favour of enforcement of the arbitration agreement may be brought and how the court should treat such applications (s 6). The section clarifies that an application to stay legal proceedings may be made before the court in which the proceedings were commenced, including a District Court and Magistrate's Court. The section also allows the court to discontinue certain stayed actions after at least two years since the last step in legal proceedings was taken, subject to certain safeguards.
• That the court may refer issues that arise by way of interpleader to arbitration (s 8).

Commencement of arbitration proceedings

• That unless otherwise agreed by the parties, the arbitration proceedings in respect of a particular dispute shall commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent (s 9).
• The provision for the application of the Limitation Act to the Arbitration Act 2001 (s 11).

Arbitral tribunal

• That the number of arbitrators may be determined by the parties, failing which there shall be one arbitrator (s 12).
• That the Chairman of the Singapore International Arbitration Centre may act as the default appointing authority. The mandatory considerations the appointing authority has to have regard to in the appointment of an arbitrator are set out. Although no reference is made to an arbitration with two arbitrators, the section does not prevent the parties from appointing an arbitral tribunal comprising two arbitrators (s 13).
• That an arbitrator shall disclose any circumstance which may give rise to doubts of his impartiality or independence and also provides for grounds upon which such arbitrator may be challenged (s 14).
• Provision for the procedure for challenge against the appointment of an arbitrator, termination of appointment of an arbitrator, the circumstances under which an arbitrator would cease to hold office and the procedure for appointment of a substitute arbitrator (ss 15 to 18).
• The conferring of immunity on an arbitrator for negligence in the capacity of arbitrator or mistake of law, fact or procedure made in the course of arbitral proceedings or in the making of an award (s 20).

Jurisdiction of arbitral tribunal

• Provision for the separability of the arbitration clause from a contract and that the arbitral tribunal may rule on a question concerning its own jurisdiction (s 21).

Arbitral proceedings

• A description of the general duties of the arbitral tribunal in the conduct of the proceedings (s 21).
• That the parties may determine rules of procedure applicable to the arbitration proceedings (s 23).
• Provision for the contents of the statements of claim and defence and how amendments may be made to them (s 24).
• The provision as to how a hearing or arbitration proceeding may be carried out (s 25).
• That parties may agree to hold consolidated proceedings or concurrent hearings (s 26).
• That the arbitral tribunal may appoint experts (s 27).
• Provision for the general powers exercisable by the arbitral tribunal including ordering security for costs, discovery and preservation of evidence (s 28).
• Provision for the powers exercisable by the arbitral tribunal in the event that the parties fail to ensure proper and expeditious conduct of the arbitration proceedings (s 29).
• The availability to parties to arbitration proceedings the same processes as are available to parties to litigation to compel the attendance of witnesses or the production of documents (s 30).
• The conferring of the same powers on the court in aid of an arbitration as it has for the purpose of court proceedings. Such powers include the power to order the securing of the amount in dispute, Mareva injunctions and Anton Piller injunctions (s 31).

Award

• Provision for the arbitral tribunal to act as 'amiable compositeur' and make an award 'ex aequo et bono' if the parties so agree (s 32). In general, 'amiable compositeur' refers to the authorisation given to an arbitral tribunal to choose freely the law applicable to the substance of the dispute, without any reference to a conflicts of law rule, whether the law is national or anational or based on equity and good conscience. In general, 'ex aequo et bono' refers to the authorisation given to an arbitral tribunal to apply general principles of law free from any legal system.
• That the arbitral tribunal may make more than one award at different points in time and on different issues or on different parts of a claim, counterclaim or cross-claim (s 33).
• That the arbitral tribunal to award interest on an award including interest on a compound basis in respect of the time before the award is made. After the award is made, the interest on the award will be the same as that of a judgment debt (s 35).
• That the arbitral tribunal may make an award on the agreed terms between the parties which may be enforced by the court in the same manner as the enforcement of a judgment (s 37).
• The form and contents of the award (s 38).
• Provision for the costs of an arbitration to be taxed by the Registrar of the Supreme Court and that an agreement to pay own costs in any event shall be void unless such agreement was part of an agreement to submit to arbitration a dispute which has arisen before the making of the latter mentioned agreement (s 39).
• That the parties are jointly and severally liable for the fees and expenses of an arbitrator (s 40).
• The conferring on the arbitral tribunal of a lien on its award to secure payment of its fees and for taxation of the fees demanded (s 41).
• That the court may exercise the power of charging any party with payment of solicitor's costs as if the arbitral proceedings were in court (s 42).
• That a party may apply to the arbitral tribunal to: (a) correct certain errors in the award; (b) give an interpretation on a specific part of the award; or (c) make an additional award on claims presented during the proceedings but omitted from the award. The arbitral tribunal will also be empowered to correct a typographical or clerical errors or give an interpretation of a specific point of the award on its own initiative (s 43).
• That an award made by the arbitral tribunal is final and binding on the parties and on any person claiming through or under them. Every award including an award made at different points of time on different issues or different parts of a claim, counterclaim or cross-claim is final and may not be varied, amended, corrected, reviewed, added to or revoked except as described in the preceding paragraph (s 44).

Powers of court in relation to award

• That the court may determine a preliminary point of law arising in the arbitration proceedings. The court may consider only those questions of law which substantially affect the rights of one or more of the parties (s 45).
• That an award may be enforced by the court in the same manner as if it were a judgment (s 46).
• That awards may not be set aside or remitted by judicial review proceedings (s 47).

Miscellaneous

• That notice of any step in legal proceedings to be given to other parties to the arbitration is the same as that required under the Rules of Court (s 53);
• That rules relating to the practice and procedure of arbitration may be made under Rules of Court (s 55);
• The introduction of limited immunity for the appointing authority and arbitral or other institutions. Immunity is extended to the function of the appointment or nomination of arbitrators unless it can be shown that bad faith was involved. The appointing authority and arbitral or other institutions are also not liable for the actions of the arbitrators they appoint (s 59).
• Provision for the reckoning of periods of time (s 61).
• The provision for the appointment and duties of a mediator and for the conduct of mediation proceedings (where there is an agreement for such appointment) (s 62).
• This section also applies to the appointment of conciliators (s 63).

International Arbitration (Amendment) Act 2001 (A38/2001)

The International Arbitration (Amendment) Act 2001 amends the International Arbitration Act with effect from 1 November 2001 to make certain provisions consistent with the provisions of the new Arbitration Act 2001.

The amendments provide for the following purposes:

• a definition of 'arbitration agreement', that is consistent with the definition under the new Arbitration Act 2001 (s 2 amended);
• the court to make an order of discontinuance in respect of certain stayed actions after at least two years since the last step in legal proceedings was taken, but subject to certain safeguards (new s 6(4));
• that the Chief Justice may appoint any other person to exercise the powers of the Chairman of the Singapore International Arbitration Centre (new s 8(3));
• the application of the Limitation Act to arbitration proceedings (new s 8A);
• default appointment of arbitrators (new s 9A);
• that the High Court, District Court or Magistrate's Court may refer issues that arise by way of interpleader to arbitration (new s 11A);
• the conferment on an arbitral tribunal of the powers to take samples and to order the preservation and interim custody of any evidence (s 12 amended);
• the summoning of witnesses by subpoenas (re-enactment of s 13);
• the circumstances in which the Model Law and Part II of the Act will not apply and the express stipulation that a reference to the adoption of any arbitral institutional rules shall not be sufficient to exclude the application of the Model Law or Part II of the Act (re-enactment of s 15);
• that references to 'conciliator' and 'conciliation proceedings' will include references to 'mediator' and 'mediation proceedings', respectively (s 16 amended);
• the clarification that an arbitral tribunal may make more than one award at different points in time and on different issues, or on different parts of a claim, counterclaim or cross-claim (new s 19A);
• the clarification that except as provided in the Model Law, an award made in accordance with art 31 of the Model Law shall not be revisited by an arbitral tribunal. Every award, including an award made at different points in time on different issues or different parts of a claim, counterclaim or cross-claim is final and may not be varied, amended, corrected, reviewed, added to or revoked except as allowed under the Model Law (new s 19B); and
• the limited immunity of the appointing authority and arbitral institutions (new s 25A).

Contract (Rights of Third Parties) Act 2001 (A39/2001)
The Contracts (Rights of Third Parties) Act 2001 ('the Act') has been passed and will come into force from 1 January 2002. As its name suggests, the Act seeks to make provisions for the enforcement of contractual terms by third parties. The Act reforms the rule of privity of contract under which a person can only enforce a contract if he is a party to it. The Act will reform the rights or benefits, but not the duties or burden, aspect of the privity doctrine. The Act also reforms the rule that consideration must move from the promisee insofar as it relates to the third party's right to enforce a contract under the Act. The Act, by its terms, does not affect the position of joint promisees.

The Act will apply to contracts made more than six months after the commencement of the Act. The Act will apply to contracts made within six months of the commencement of the Act only if the contract expressly provides for the application of the Act.

For fuller details of the Act, please refer to the write-up about the Act in this section of the November 2001 issue of The Singapore Law Gazette.

Elizabeth Wong
Allen and Gledhill