August 3, 2016

RHTLaw Taylor Wessing Managing Partner Tan Chong Huat and Head of Capital Markets Ch’ng Li-Ling authored an article titled “Why did board not consider JM or creditor scheme before winding up move?” for The Business Times

RHTLaw Taylor Wessing Managing Partner Tan Chong Huat and Head of Capital Markets Ch'ng Li-Ling authored an article titled “Why did board not consider JM or creditor scheme before winding up move?” for The Business Times The article was first published in The Business Times dated 3 August 2016. Why did board not consider JM or creditor scheme before windingup move? Source: The Business Times © Singapore Press Holdings Ltd. Date: 3 August 2016 Author: Tan Chong Huat & Ch'ng Li-Ling ON July 28 2016, the Singapore market reacted to the shocking news that Swiber Holdings Ltd, a mainboard-listed offshore and marine business, had applied to the High Court of Singapore to voluntarily wind up the company. Swiber had also announced the appointment of provisional liquidators and the resignation of three executive directors. Subsequently, on 29 July 2016, Swiber announced it and its subsidiary, Swiber Offshore Construction Pte Ltd, have taken out applications to place themselves under judicial management. The news on 28 July badly affected the share prices of offshore and marine companies listed on the Singapore Exchange and caused banks such as DBS and UOB to release public statements on their exposure to Swiber's default. For any company (not least a publicly traded company), liquidation is almost always the avenue of last resort, after the management has exhausted all other possibilities. Winding-up leaves all stakeholders in a worse-off position:  employees lose their jobs, creditors seldom recover the full value of the monies owed, and shareholders (who rank last in distribution of the company's assets) likely lose the value of their investments. For a publicly traded company, the shock of the liquidation news also hurts market sentiment and investors' confidence in the sector in which the company operates. The publicly available financial information on the Swiber Group does not paint a picture dire enough to lead one to surmise that liquidation is the best way out, even in the face of legal claims, statutory demands and impending payments to noteholders. Based on the group's results announcement for its first quarter ended 31 March 2016, the Swiber Group had close to US$2 billion in assets (including cash and cash equivalents of US$130 million, trade receivables of US$525 million, and property plant and equipment of US$677.7 million), while its total liabilities stood at US$1.43 billion (including bank borrowings of about US$323 million and amount due to bondholders of US$556 million). While listed companies have filed for members' voluntary winding-up or sought shareholders' approval to wind up the company (eg listed companies on the SGX watchlist), it has been relatively rare for a listed company to apply to Court for a winding-up order under section 254(1)(e) of the Companies Act, namely on the basis that it is unable to pay its debts. The legal regime in Singapore provides companies in financial distress with less drastic options, which give such companies a lifeline to revive its fortunes and to forestall liquidation, in the interest of shareholders and creditors: Judicial management enables a company to be placed under the management of a court-appointed judicial manager, where there is a reasonable probability of rehabilitating the company or of preserving all or part of its business as a going concern or that otherwise the interests of creditors would be better served than by resorting to a winding up. This option preserves the company's assets from depletion due to claims, and gives a company breathing space to rehabilitate its business by placing a stay on claims and legal proceedings by creditors; and A scheme of arrangement allows a distressed company and its creditors to rearrange the rights of the creditors. Such a scheme typically enables a company to work out a compromise with creditors on the deferment of payments, on some form of discount on outstanding amounts due to the creditors, and on alternative payment forms (eg payment in shares), while allowing the company to carry on its business.  The suddenness of Swiber's winding-up application underscores how unprepared the market and investors were for such a development. It raises concerns whether Swiber had been timely, complete and accurate in its disclosures on significant developments, which have a material impact on its business and financial position. A listed company has to ensure that it abides by the overarching principle to announce any information known to it or any of its group companies which "is necessary to avoid the establishment of a false market" - in its securities or which - "would be likely to materially affect the price or value of its securities". The SGX Listing Manual requires announcements to be balanced and fair, and to avoid "presentation of favourable possibilities as certain, or as more probable than is actually the case".It also requires a company's announcements to, among others, explain the consequences or effects of the information on its future prospects. If the consequences or effects cannot be assessed, the company should explain why. For example, on 8 July 2016, Swiber announced that due to weakness in the oil and gas sector since the latter half of 2014, its US$710 million offshore field development project in West Africa had not been able to progress in accordance with its original schedule. No further details on the timeline of this project or an elaboration on how the delay would affect Swiber's operations were given. Other than the disclosure obligations under the SGX Listing Manual, directors also have to adhere to their legal duties, chief of which is the fiduciary duty of a director, under section 157 of the Companies Act, "at all times to act honestly and use reasonable diligence in the discharge of the duties of his office". Following the market's shock reaction to the news of Swiber's liquidation plans on 28 July, Swiber then announced a day later that its Board of Directors and its provisional liquidators had, on 28 July, had discussions with Swiber's major financial creditor who indicated that they are supportive of an application for Swiber to place itself into judicial management instead of liquidation. Swiber also clarified, among others, that Leonard Tay had only resigned as an executive director of the company, but continues to remain as the chief financial officer of the Swiber Group. The swift turn of events and the company's clarification announcements suggest that there might not have been adequate deliberation by the board of directors on its courses of action and the implications of its decisions. As investigations commence into the circumstances leading to Swiber's winding-up application and now its plans to go under judicial management, it is likely that more details will come to light, for regulators and investigators to determine if there was any lapse in corporate disclosure. This may ultimately prove to be scant comfort for Swiber's shareholders (approximately 10,000 as at 14 March 2016). It is also a sobering reminder to listed companies and directors of such companies that transparency and timeliness in public disclosures are paramount for ensuring market stability and investors' confidence.
July 29, 2016

RHTLaw Taylor Wessing announces promotions of Jack Ow and Napolean Koh to Partners

RHTLaw Taylor Wessing is pleased to announce the promotions of Jack Ow as a Partner in our Intellectual Property & Technology Practice, and Napolean Koh as a Partner in our Litigation & Dispute Resolution Practice with effect from 1 July 2016. Jack handles a broad spectrum of intellectual property and technology matters. He regularly advises on technology transactions, data protection, cyber security and regulatory compliance, especially for info-communication and technology (ICT) industries. As a Certified Information Privacy Technologist (CIPT) accredited by IAPP and having a keen interest in ICT developments, Jack believes in seeking customised legal solutions that take into account the challenges in design, deployment and auditing of IT products and services, while balancing the role that technology companies increasingly fill as arbiters of trust in today’s data-driven global economy. Napolean’s main areas of practice encompass both front-end advisory work for various construction, infrastructure and energy-related projects, as well as contentious work involving owner-developers, consultants and contractors at various stages of proceedings and forums. Napolean strongly believes that dispute resolution mechanisms and choice of forum issues should be carefully considered and crafted at an early stage, in order that client’s interests and rights are protected and not prejudiced in any way.
July 29, 2016

RHTLaw Taylor Wessing Litigation & Dispute Resolution Partner and Co-Head of the Firm’s Employment Practice, Vernon Voon quoted in TODAY

RHTLaw Taylor Wessing Litigation & Dispute Resolution Partner and Co-Head of the Firm’s Employment Practice, Vernon Voon quoted in TODAY article titled "MOM looking into alleged discrimination in RWS retrenchment exercise".  The article was first published in TODAY dated 29 July 2016. MOM looking into alleged discrimination in RWS retrenchment exercise Source: TODAY © Mediacorp Press Ltd. Date: 29 July 2016 Author: Rumi Hardasmalani ​​​SINGAPORE — The Ministry of Manpower (MOM) is examining Resorts World Sentosa’s (RWS) recent retrenchment exercise that laid off about 400 jobs, as former employees continue to file complaints and appeals against the integrated resort with casino, alleging discriminatory practices, unfair dismissals as well as inadequate compensation.  While some appeals have been dismissed on various grounds, others are being followed up by the MOM. The former RWS employees whose cases are being examined by the MOM were paid below S$4,500 per month and are covered under the Employment Act. “The MOM is currently looking into the feedback received, alleging discriminatory practices in the retrenchment exercise at RWS,” a spokesperson at the MOM told TODAY. In May, 12,000-strong RWS began laying off workers at its casino operations as turnover from Chinese high-rollers continued to slump amid a corruption crackdown in China and a slowdown in the world’s second-largest economy. About 150 croupiers, 200 supervisors and two dozen pit managers have been let go in recent months. Some former employees alleged that Singaporeans were unfairly retrenched by RWS, as foreigners were retained and even sought after, pointing to an advertisement the company had placed in Malaysia for casino staff with pay offered in Singapore dollar terms.  “It is not fair for a company to fire Singaporeans and hire foreigners at lower Singapore dollar salaries … The advertisement was later pulled,” one complainant said. “We were fired on the spot without any satisfactory explanation on how individuals were chosen for the job cuts. The company’s Performance Level Assessment programme is unfair,” said an appellant who complained to the MOM last month.  In its e-mail responses to these appeals seen by TODAY, the MOM indicated that RWS is being engaged to find out more about the retrenchment exercise. The MOM said it was “waiting for the company’s response on how they have conducted the retrenchment exercise and their decision-making process on deriving the list of employees to be retrenched”.  “We will continue to engage with MOM to facilitate any clarification, if necessary ... We would like to reiterate that RWS has worked closely with the MOM and the Attractions, Resorts & Entertainment Union (AREU) to extend fair terms to all affected employees,” an RWS spokesperson said in response to TODAY’s queries.  According to employment and labour relations lawyer Vernon Voon, a partner at RHTLaw Taylor Wessing, there are no regulations that require RWS to terminate foreign employees before Singaporean citizens and Permanent Residents, as companies retain the right to retrench based on their needs and the skill sets of their employees, and not by virtue of nationality.  However, he added: “Although the retrenchment per se is not unfair or unlawful, MOM should be astute to discern if RWS’ retrenchment exercise has unfairly targeted Singaporeans … or used criteria for retrenchment that are not objective and relevant to the job at hand.” AREU executive secretary Desmond Choo said that, despite the absence of a collective agreement, the affected Singaporean workers received retrenchment packages as well as additional S$1,500 training grant payouts that will help them secure jobs in other industries or in positions that may require retraining.  “Our union members also received 12 months’ union membership fees by the management, which will enable them to continue to enjoy union membership benefits such as scholarship and bursaries for their children, financial assistance as well as other social benefits. Additionally, AREU has also offered financial assistance and training opportunities to union members,” Mr Choo said.
July 26, 2016

RHTLaw Taylor Wessing congratulates our client, Putien for being awarded one star in the Michelin Guide Singapore 2016

RHTLaw Taylor Wessing congratulates our client, Putien for being awarded one star in the Michelin Guide Singapore 2016 for their Kitchener Road branch. We are proud to serve a Michelin star restaurant in Singapore. Rizwi Wun, Partner in our Intellectual Property & Technology Practice, is the client partner for Putien.