February 17, 2017

Most industry watchers are betting on the odds that the government will let market forces play out before intervening in the property market. Deputy Head of Real Estate Sandra Han discusses with The Straits Times

RHTLaw Taylor Wessing Deputy Head of Real Estate Sandra Han was quoted in The Business Times article titled “Lifting of property cooling measures seen unlikely”. The article was first published in The Business Times on 17 February 2017. Lifting of property cooling measures seen unlikely Industry watchers expect the government to let market forces play out before intervening Source: The Business Times © Singapore Press Holdings Ltd. Date: 17 Feb 2017 Author: Lynette Khoo THOSE hoping for any lifting of property cooling measures may be in for a non-event if the projection of market experts rings true. This is because most industry watchers expect the government to let market forces play out before intervening. Also, tax consultants are not expecting major revisions to other property taxes, though some hope that the government will see it fit to re-introduce tax remission for vacant properties given the tough rental market and review property tax on vacant private land. This echoes some of the recommendations made by the Real Estate Developers' Association of Singapore. "Given the rising vacancy rates and the less-than-promising market outlook, perhaps the government can consider reinstating vacancy refunds for a period of time, say for five years," said Lim Gek Khim, an Ernst & Young tax partner. "This would provide some relief to owners of unoccupied property during challenging times." Since Jan 1, 2014, property owners can no longer claim the so-called "vacancy refunds" on property taxes for unoccupied properties (both residential and non-residential). The change coincided with the introduction of a new and more progressive property tax schedule on residential properties that year. Citing headwinds in the rental market with the increase in newly completed properties, Dentons Rodyk & Davidson senior partner Lee Liat Yeang noted that re-introducing the tax remission for vacant properties will help to mitigate the hardships of cash-strapped property owners. "The government should also consider more tax incentives to developers who develop and build housing using prefabricated prefinished volumetric construction (PPVC) methods and/or who invest money to incorporate more energy saving facilities in the development." Most industry watchers are betting on the odds that the government will stand pat on maintaining property cooling measures in their current form, amid early signs of a recovery in the private residential market characterised by an improvement in transactions and moderating price declines in 2016. Through selective discounts, deferred payment schemes or bulk sale to third-party or parent company, developers have also been able to move sales in projects affected by the qualifying certificate (QC) conditions and the additional buyer's stamp duty (ABSD). "For these reasons, it is expected that the government will let market forces play out before further intervening in the property market," said Sandra Han, deputy head of real estate practice at RHTLaw Taylor Wessing. The QC conditions, which affect foreign and listed developers, require them to finish building their projects within five years of acquiring the site and sell all the units within two years of completion; otherwise, they incur extension charges for unsold units. Since late 2011, developers also have to sell out a project within five years to qualify for ABSD remission. Credit Suisse estimates QC charges and ABSD remission clawback for developers this year to be S$800 million in total. Still, removing ABSD entirely at this point is undesirable from the government's standpoint, Ms Han said. "It will only lead to greater volatility in the property market, sensing the pent-up demand from long-term property investors. It would not be surprising if the upcoming Budget leaves nothing on the table for property investors to look forward to," she added. But Mr Lee felt that if the government chooses to keep the ABSD, it should consider reducing the rates for Singaporeans. "The loan-to-value ratio should be relaxed for the second and subsequent housing loans since excessive borrowing will not be possible with the total debt servicing ratio in place." KPMG Singapore head of real estate Tay Hong Beng reckoned that if there is to be anything at all on cooling measures in the Budget, it will likely be a gradual lifting of measures that is done in phases. He said: "A phased approach will help manage potential pricing spikes due to a sudden increase in demand and facilitate a smooth transition for the property market."
February 16, 2017

“Tower Transit’s willingness to try and find alternative jobs for the affected parties does not “detract from or waive its breach” of the employment agreement”, Employment and Labour Relations Partner Vernon Voon shares more with The Straits Times

RHTLaw Taylor Wessing Partner Vernon Voon was featured in The Straits Times article titled “Tower Transit pulls back job offers for six bus captains”. The article was first published in The Straits Times dated 15 January 2017. Tower Transit pulls back job offers for six bus captains It offers to help them find other jobs; MOM says firm acknowledges lapses in HR process Source: The Straits Times © Singapore Press Holdings Ltd. Date: 15 February 2017 Author: Zhaki Abdullah Bus operator Tower Transit said it "inadvertently" hired more bus captains than it needed between December and January, during its recruitment activities. Six had already signed employment contracts with the Anglo-Australian firm when they were told the offers were being rescinded. One bus captain was informed by e-mail just two weeks before he was due to start work this month that the company had reached "full staff capacity" and was "unable to proceed" with its job offer. The man, who did not want to be identified, said the recruitment drive was "misleading" and that those who had quit their previous jobs after getting offers were "left stranded and distressed". A Tower Transit spokesman told The Straits Times the company has since tried to help the men who were affected. "It's a situation that has caused them distress, and we're doing everything we can, including direct referrals to other organisations, to help them find similar positions," he said, adding that only three had responded to the offer of help. The Ministry of Manpower (MOM) said Tower Transit had acknowledged "lapses" in its human resource process and told the ministry it would compensate the affected parties, though no details were given of what this would be. "Affected individuals who have any queries may approach MOM or the unions, if they are union members, for advice and assistance," said a ministry spokesman. Both employers and employees should commit to the terms and conditions of the employment contract once it is signed, said Mr Melvin Yong, executive secretary of the National Transport Workers' Union (NTWU). "If either party has to revoke the contract, due notification, explanation and compensation should be given," said Mr Yong, who is also a Member of Parliament for Tanjong Pagar GRC. He added that the NTWU can help affected employees by linking them up with the Employment and Employability Institute for job placement assistance. Tower Transit's willingness to try and find alternative jobs for the affected parties does not "detract from or waive its breach" of the employment agreement if it did not comply with the provisions surrounding its termination, said lawyer Vernon Voon. The employment and labour relations partner at law firm RHTLaw Taylor Wessing noted: "In the event that an alternative job is offered, that will only go towards mitigation of the damages that the affected parties have suffered as a result of the company's breach in not observing the terms of the agreement regarding its termination." Tower Transit became the third public bus operator here in 2015.
February 7, 2017

International law firm RHTLaw Taylor Wessing announces new Partner and Foreign Lawyer hires

Leading international law firm RHTLaw Taylor Wessing announced today the addition of Partner (Foreign Lawyer) Mr Gerallt Wyn Owen, Mr Ben Constance, and Foreign Lawyer Mr Gilad Shay.  The new hires complement the Firm’s focus on developing industry-focused capabilities for clients and will help enhance a reputation for understanding clients’ businesses and for delivering innovative services that anticipate their needs. All three lawyers also have proficiencies in handling complex cross-border transactions.  RHTLaw Taylor Wessing Managing Partner Mr Tan Chong Huat commented, “We are excited to welcome our three new hires - all exceptional lawyers in their field. Their individual expertise will be a welcomed addition to our global team and will continue to strengthen the services that we can offer clients. They boast world class capabilities in their respective industries, blending well with the Firm’s vision of being an international law firm based in Asia. Gerallt, Ben and Gilad will contribute invaluably as expert legal advisors and will be seen as “go-to” industry practitioners by our clients. This is a significant addition to our bench strength.”  Gerallt is a senior international corporate crime and regulation lawyer with more than 21 years of experience. His strengths are in domestic and international investigations, fraud, corporate and financial crime, anti-corruption, anti-money laundering, disciplinary proceedings and regulation. Gerallt has previously been listed as one of 'The Lawyer - Hot 100'. He was also recommended by Chambers & Partners Global 2014 and 2015 for dispute resolution in both Singapore and the UK, in addition to being ranked by Who’s Who Legal as one of the top ten most highly regarded business crime defense lawyers in the world based outside the UK/US. Gerallt will be part of the Firm’s Litigation & Dispute Resolution Practice.  Ben joins the Firm’s Corporate Practice, bringing with him close to 15 years of experience in handling matters relating to cross-border M&A, equity capital markets and general corporate law. He has advised on transactions in Asia, Australia and throughout the Middle East in various sectors including banking and financial services, hospitality, information technology and energy. Ben has written various articles for International Law Office, Dubai SME magazine, Allorya.com and Australian Business Council Dubai. With over 10 years of experience, Gilad is an addition to the Firm’s Capital Markets, Corporate and Intellectual Property & Technology Practices. He has extensive experience in cross-border commercial and technology-focused transactions, M&A deals, joint ventures and in advising on intellectual property matters. He is especially engaged in matters relating to Israel, Singapore and the ASEAN region and has advised Fortune 500 companies, investors and start-ups. Gilad was part of the professional team in the first Initial Public Offering of an Israeli technology company on the Singapore Stock Exchange in over a decade. --- This press release is featured in the following news reports: "SG: RHTLaw adds Withers’ head of international regulatory" - Asian Legal Business, 7 February 2017
February 3, 2017

Managing Partner Tan Chong Huat and Associate Raymond Ting co-authored a Business Times opinion piece on the key challenges of completing the Kuala Lumpur-Singapore High Speed Rail project by 2026

RHTLaw Taylor Wessing Managing Partner Tan Chong Huat and Associate Raymond Ting co-authored an opinion piece titled "The HSR project - a complex jigsaw puzzle" published in The Business Times. The article was first published in The Business Times on 3 February 2017. The HSR project a complex jigsaw puzzle Getting the high-speed rail up and running entails getting the involved entities to gel, sorting out profitability and land acquisition issues - and politics. Source: The Business Times © Singapore Press Holdings Ltd. Date: 3 February 2017 Author: Tan Chong Huat and Raymond Ting THE signing of the bilateral agreement for the Kuala Lumpur-Singapore High Speed Rail (HSR) last Dec 13 marked a significant milestone in the development of the project, with discussions having begun more than three years ago between the governments of Singapore and Malaysia. While the terms of the project have been cemented in the bilateral agreement, the actual execution of the project has only just begun, and the process would certainly not be without challenges, the key ones among which are highlighted below: Many moving parts In a joint press conference for the signing of the memorandum of understanding on the project, Prime Minister Lee Hsien Loong referred to the undertaking as a "very complicated jigsaw puzzle". Based on a joint factsheet by the Land Transport Authority (LTA) of Singapore and the Land Public Transport Commission (SPAD) of Malaysia, the operating structure of the HSR project would involve no fewer than five main entities: Two entities appointed by the governments of Singapore and Malaysia to oversee the designing, building, financing and maintaining of the civil infrastructures and operation of the HSR stations within their respective territories. These entities will be LTA and MyHSR; A privately-financed assets company (AssetsCo) that will design, build, finance and maintain rolling stock and rail assets; and Two service operators (Operators) that will separately run the inter-country and domestic services. This structure does not include the various contractors to be appointed by the respective governments for the civil engineering and construction works in each country and the sub-contractors thereunder, the various advisors for the project, the Joint Development Partner and the various entities responsible for carrying out feasibility and advanced engineering studies. The complexity of the project is evidenced by the cross-border relationships and payment flows among the different entities, which creates a web of inter-linked legal rights and obligations between the various stakeholders. It is foreseeable that disputes may arise among the various parties, and issues such as the appropriate forum, seat, governing law, as well as joinder of parties to the dispute resolution process must be considered. Any possible complication in the resolution of disputes may cause delays to the project and substantial losses for the parties concerned. It would therefore be prudent to ensure that the dispute resolution process is fair, transparent, objective and efficient. Long-term profitability The HSR project is a massive undertaking. LTA and MyHSR each bears the burden of financing the civil infrastructure in their respective jurisdiction, and AssetsCo bears the burden of financing the rolling stock and rail assets. Such financing will be over an extended period, as it is envisaged that the construction will take at least seven to eight years. The cost of constructing the civil infrastructure will be recouped by LTA and MyHSR via the concession fees to be paid by the Operators, while the cost of constructing and procuring the rolling stock and rail assets will be recouped by the AssetsCo through the train-leasing fees to be paid by the Operators and the availability payments to be made by LTA and MyHSR. The availability payments thus serve as a guarantee by LTA and MyHSR of the amounts to be received by AssetsCo, should an Operator be in financial difficulty and be unable to pay the track-access charges. Given the high development costs, it is likely that the project will turn profitable only in the long term. In fact, some other high-speed rail projects in the past have struggled to turn profitable, quite notably the Eurotunnel linking Britain and France, which became profitable only after 26 years. While the present demand for travel between Singapore and Malaysia exceeds the capacity of the existing infrastructure, and such demand is expected to grow at an average rate of 3 to 5 per cent per year (comparable to the growth in gross domestic product of Singapore and Malaysia), the long-term fare and non-fare revenue from the HSR project might be affected by a myriad of factors such as changing economic conditions or the presence of competition from other modes of transport. Global economic slowdowns might also affect revenue growth, or even cause revenue to shrink for all market players concerned. It is envisaged that the bulk of the revenue would be from travel fares. The pricing structure of these fares will thus play an important role in ensuring that the revenue is sufficient to turn a profit and yet garner strong demand from customers plying the Singapore-Kuala Lumpur route. This issue is compounded by the volatility of the Malaysian ringgit vis-à-vis the Singapore dollar, which last year sank to a one-year low of RM3.1206 to S$1, and the differences in the purchasing power between the residents of both jurisdictions. It is also likely that travel fares will be subject to regulatory controls. It is unclear in what proportions the inter-country service and domestic service would each contribute to the total revenue of the HSR project. To ensure its economic viability, it is crucial to address at the outset the potential legal issues surrounding the availability payments to be made by LTA and MyHSR. Firstly, given that 335km (or 95.7 per cent) of the 350 km-long HSR line will be in Malaysia, the apportionment for the liability for the availability payments to be shared between LTA and MyHSR should be worked out. Secondly, it should be specified whether such liability will be joint, several or joint and several. Thirdly, any limits on the exposure to LTA and/or MyHSR with regard to the availability payments should be clarified. Land acquisition The Singapore Land Authority (SLA) has announced the acquisition of the sites of the Jurong Country Club (JCC) and the Raffles Country Club to make way for the HSR project. It has been reported that the JCC is appealing against the SLA's compensation of S$89.8 million, which was just over half of JCC's claim of S$168.1 million. The more challenging land acquisition issues are, however, likely to arise in Malaysia, as seven of the stations in the HSR line will be situated in Malaysia. Under the Federal Constitution of Malaysia, land management is the responsibility of the state government. As the HSR line will pass through the states of Johor, Malacca, Negri Sembilan and Selangor, four state governments will be involved. The timelines for land acquisition by each state government, as well as any appeals against the compensation awarded by each state, will therefore need to be taken into account. While the ruling Najib administration supports the HSR project, the parliamentary opposition does not and this could mean that the opposition-controlled state government of Selangor are unlikely to expedite land acquisition in and around Kuala Lumpur. The need to manage the interests of both the federal and state governments of Malaysia might complicate the process of land acquisition and lead to delays or even an impasse. Political issues The governments of Singapore and Malaysia might have slightly different aims in relation to the HSR project. As most of the HSR line is in Malaysia, the Malaysian government might place greater emphasis on the domestic service within Malaysia and promote the HSR project as one that connects the various Malaysian cities and thus primarily benefits Malaysia. On the other hand, the emphasis of the Singapore government would be on the direct route between Singapore and Kuala Lumpur, and the convenience afforded to both domestic and international travellers. It is unclear how the infrastructure and train-related assets will compete for such use of the infrastructure and assets. There might also be political costs linked to the public discontent arising out of a failure of any of these objectives. In Singapore, two former transport ministers have both stepped down from the Cabinet amid public discontent over Singapore's public transport system, including the repeated failures and technical lapses on the Mass Rapid Transit system. As the HSR project is for the long term, the continued support of both the Singapore and Malaysian government is instrumental in ensuring its success. While the current ruling government of Malaysia supports the HSR, the parliamentary opposition does not. In fact, the opposition has stated that it would prefer to invest the money in connecting Sabah and Sarawak by rail, arguing that these two states are in greater need of transport links. While the next Malaysian general election is required to be held only by mid-2018, Prime Minister Najib Razak has signalled that the polls might be brought forward. Following the 1MDB scandal that has plagued his administration and against the backdrop of the current economic climate, it is unclear how the elections will play out. The HSR project heralds the deepening of bilateral ties between Singapore and Malaysia, and a closer level of economic integration within the Asean community. The process of fitting the pieces of the complicated jigsaw puzzle has just begun and and the amount of resources and effort required for the undertaking will certainly be immense. It is imperative for the governments of both countries to work out a fair and transparent process to address and resolve the legal issues that will likely arise as they work towards completing the project by 2026. The writers are respectively managing partner and an associate of RHTLaw Taylor Wessing LLP