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LEGAL UPDATES |
Legislation
The Medicines (Amendment) Act 2004 is operative from 1 July 2004. The Medicines Act (Cap 176) is amended to implement certain obligations undertaken by Singapore under the US-Singapore Free Trade Agreement, which was concluded in 2003. Among other changes, a new s 12A is introduced, which essentially prescribes various factors that have to be taken into account by the licensing authority when dealing with an application for a product licence. The new section also requires an applicant for such licence to make one or more declarations stating whether the medicinal product is subject to a patent and other particulars relating to that patent.
The Statutes (Miscellaneous Amendments) (No 2) Bill 2004 (B27/2004) was passed in Parliament on 20 July 2004. Among other things, the Bill seeks to amends 189 of the Companies Act (Cap 50). The Bill was first introduced in Parliament on 15 June 2004. The changes proposed by the Bill are not in force yet.
When in force, the effect of the Bill is to amend s 189 of the Companies Act retrospectively with effect from 1 April 2004 to provide that the rights of a member of a company to inspect minutes under s 189(1) and to be furnished with copies of minutes under s 189(2) are confined to minutes of proceedings of general meetings and of members’ resolutions passed by written means.
With the
introduction of a new
s 189(2A), it is now clear that the right of a member to inspect minutes and to
be furnished with copies of minutes ‘shall not apply to books containing minutes
of proceedings of meetings of a company’s directors and of its managers, or (as
the case may be) books containing minutes of the passing of resolutions and the
making of declarations by the director of a company that has only one
director’.
The Bill also amends ss 253(2)(a)(i) and 254(1)(d) to allow the court to wind up a company which has no member. Presently, these provisions provide for winding up where the number of members is reduced below two (except in the case of a wholly-owned subsidiary, where the sole shareholder is the holding company).
The Business Trust Bill (‘BT Bill’) is a new piece of legislation which regulates the governance of business trusts (‘BTs’). BTs are business enterprises set up as a trust structure, as opposed to a corporate structure. They are essentially hybrid structures with elements of both companies and trusts.
A BT differs from a company as it is not a legal entity. It is created by a trust deed under which the trustee has legal ownership of the assets of the business enterprise and manages the business for the benefit of the beneficiaries of the trust. Purchasers of units in the BT hold beneficial interest in assets of the BT. BTs also differ from other traditional trusts (such as a private family trust or a unit trust) as they actively undertake business operations.
The main objectives of the governance framework under the BT Bill are to:
(a) safeguard the rights of investors (or unit-holders in the BT); and
(b) clearly establish the duties and accountability of trustees and their directors and address potential conflict of interest situations.
The MAS has issued an explanatory brief of the Business Trusts Bill 2004.
The Securities and Futures Act (Cap 289) will be amended to provide for the regulation of offers of units and derivatives of units in BTs and take-over proceedings in relation to BTs, and to deal with the treatment of property trusts.
The MAS has issued an explanatory brief of the Securities and Futures (Amendment) Bill 2004.
The Building Control Act (Cap 29) will be amended primarily to repeal Part III (which deals with installation and retrofitting works relating to air-conditioning units) and to re-enact general provisions to require a person responsible for an exterior feature which is installed on, forms part of, or projects outwards from a prescribed building, to retrofit the exterior feature in the prescribed manner, and to empower the Minister for National Development to make orders setting out the detailed retrofitting requirements.
Section 11(1) of the Government Securities Act (Cap 121A) will be amended to subject Government borrowing through the issue of Government securities to a revolving borrowing limit, as opposed to a fixed borrowing limit, as is presently the case.
When amended, s 11(1) and new (1A) will read as follows:
(1) The Parliament
may, by a resolution under Art 144(1)(a) of the Constitution
with which the President concurs, authorise the amount of borrowing by
the
issue of Government securities in Singapore under this Act, and may,
from
time to time, vary that amount.
(1A) The Minister may,
from time to time, borrow such sums by the issue of
Government securities in Singapore except that the aggregate amount
borrowed (whether before, on or after the date of commencement of the
Government Securities (Amendment) Act 2004) and outstanding at any
time
shall not exceed the amount specified in any resolution (varied or
otherwise)
referred to in ss (1).
This Bill seeks to prohibit the placing of a human embryo clone in the body of a human or an animal and certain other practices associated with reproductive technology.
The Ministry of Finance (‘MOF’) is conducting a public consultation exercise from 28 July 2004 to 20 September 2004 on the draft Companies (Amendment No 2) Bill 2004 (the ‘draft Bill’).
The draft Bill encompasses some changes proposed in the final report of the Company Legislation and Regulatory Framework Committee (‘CLRFC’) published on 22 October 2002. These recommendations were accepted by the Singapore Government on the same day.
The following are some of the recommendations in the draft Bill:
Recommendation 2.18 — abolishing the concepts of par
value and
authorised share capital
Recommendation 2.19 — introducing an alternative capital
reduction
process which does not require
court sanction
Recommendation 2.21 — liberalising the financial
assistance restrictions
to allow financial assistance to
be provided in
additional circumstances, eg
where less than
10% of the company’s paid-up
capital and
reserves is involved, or where
it is approved by a
unanimous resolution of
shareholders
Recommendation 2.22 — allowing share-buyback to be
funded out of
profits as well as capital where
supported by a
declaration of solvency
Recommendation 2.23 — allowing repurchased shares to be
held as treasury
shares
Recommendation 5.8 —
introducing a more effective and efficient
statutory
form of merger and amalgamation
process which
concurrently protects
shareholder and creditor rights
All comments are to be submitted to the MOF by 20 September 2004 in the prescribed template.
The Ministry of Finance (‘MOF’) conducted a public consultation from 1 July 2004 to 31 July 2004 on the specific provisions in Singapore’s Avoidance of Double Taxation Agreements (‘DTAs’) as well as the DTA network.
The MOF disclosed that this is the first of a series of annual DTA consultation exercises. As part of the exercise, 10 to 15 countries (with or without current DTAs with Singapore) will be selected for review every year.
For 2004, the DTAs with the following countries will come under review:
Australia
China
India
Indonesia
Japan
Malaysia
Philippines
South Korea
Thailand
Taiwan
US
Feedback is also sought on the upcoming DTA negotiations for the year. These are with:
Canada
Ukraine
China
Thailand
Comment may also be submitted on the current DTA network or other DTAs which might be initiated or reviewed.
Elizabeth Wong
Allen & Gledhill