essage - law society of singapore centre/law... · dr. george bonnano, a central element of...

Continued on page 4

President’s Message

Singapore Law Gazette June 2017

In “Four Things Resilient Lawyers Do Differently” published in ABA Law Practice Today, 14 June 2016, co-authors Davis-Laack, Richard and Shearon, observed:

The market for legal services, and clients’ expectations of and approach to law firms, are also changing. Law has always been and always will be a demanding profession based largely on an adversarial model to resolve (or try to avoid) the toughest disputes our society creates, often with really high stakes for all parties. In recent years, changes in how legal services are delivered are making the practice even tougher. Virtual law firms are increasing, more projects are being given to contract attorneys or shipped overseas, companies are pressuring their law departments to manage many issues internally instead of sending them to outside counsel, and clients are demanding alternative billing methods. Law firms need lawyers and professional administrative staff who are engaged and functioning at their best to meet these challenges.

For some reason, the list of perennial pressure points outlined by the authors did not include billable hours and billing targets as KPIs! These are proven bugbears for many lawyers. Presumably these were viewed as long standing status quo features rather than upcoming challenges wrought by disruptive changes. Definition of Resilience As good lawyers, let’s start with definitions. What is resilience? It is the degree to which a person bounces back quickly from criticism, rejection or setbacks. Dr Larry Richard who elucidated this definition is a rare lawyer-psychologist. He elaborates in an article entitled “Resilience and Lawyer Negativity” (published in his blog in September 2012). High Resilience people tend to take negative events in stride. They aren’t as easily thrown off course by them as Low Resilience people are. And when they are impacted, they recover more quickly.

The Resilient LawyerAn alternative definition from Ms Jeena Cho (from an article entitled “3 Ways Lawyers Can Become More Resilient” posted in Above The Law on 29 February 2016) is one’s ability to survive adversities and to thrive in life. The Statistical Evidence There are troubling statistics about lawyers and resilience in a US study conducted several years ago that Dr Larry Richard cites in his article on “Resilience and Lawyer Negativity”. No other finding is as intriguing as the fact that lawyers consistently score low on resilience. The US study concluded that on a percentile scale which ranges from zero to 100 per cent the average for this trait among the public is the 50th percentile. Among lawyers, the average is the 30th percentile. What was more telling was the distribution – 90 per cent of the lawyers tested scored below the 50th percentile! But why would this be so? Dr Larry Richard says that by virtue of both our nature and our training, lawyers focus on what can go wrong, on what’s broken, on what possible problems exist. We do a diagnostic. We analyze all that’s wrong. The very best lawyers in our midst are specialists in identifying problems and issues that need fixing.

1. Cynical

2. Sceptical

3. Critical

4. Pessimistic

5. Negative Do most of the words listed above describe you? Dr Larry Richard says that these are the five most common adjectives used to describe lawyers he has heard over the years from speaking to hundreds of people working with lawyers.

The Resilient Lawyer 01President’s Message

Diary and Upcoming Events 06From the Desk of the CEO 08Genie Comes Out of the Lamp – The Legal Aid Bureau’s Journey into a Completely Paperless Environment 10

News

Fact or Fake News – The “Role of Law” for Data Accuracy 16Edge of Tomorrow: Singapore’s Debt-Restructuring Regime Revised 23PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (“PGN v CRW (No. 4)”): Observations on Preconditions for Arbitrationand the Judicial Approach to Setting Aside Awards 31

Features

Compass – Why You May Need a Privacy Policy 36Risky Business – Social Engineering – A Perennial Challenge 39Tech Talk – Tech Review: Practice Management Solutions 42Practice Support – Thinking About Talent Management in Law Firms 44The Young Lawyer – Amicus Agony 46

Columns

Alter Ego – Letter to My Younger Self 48Travel – Fire, Ice, and Dancing Skies 50

Lifestyle

Notices Information on Wills 55

56Appointments

Contents


The Singapore Law GazetteThe Law Society’s Mission StatementTo serve our members and the community by sustaining a competent and independent Bar which upholds the rule of law and ensures access to justice.

An Official Publication of The Law Society of Singapore

The Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

The Council of The Law Society of SingaporePresident Mr Gregory VijayendranVice Presidents Ms Kuah Boon Theng Mr Tan Gim Hai AdrianTreasurer Mr Dhillon Singh

Mr Thio Shen Yi, SC (Immediate Past President), Mr M Rajaram, Mr Lim Seng Siew, Mr Chia Boon Teck, Mr Tito

Isaac, Mr Ng Lip Chih, Ms Lisa Sam, Mr Michael Chia, Mr Anand Nalachandran, Mr Yeo Chuan Tat, Ms Felicia Tan, Mr Paul Tan, Ms Simran Kaur Toor, Mr Grismond Tien, Ms Low Ying Li, Christine, Mr Sui Yi Siong, Mr Ng Huan Yong

Editorial BoardMs Malathi Das, Mr Rajan Chettiar, Mr Marcus Yip, Ms Simran Kaur Toor, Assoc Prof David Tan, Dr William Wan, Mr Cameron Ford, Ms Celeste Ang, Ms Janelene Chen, Mr Vincent Leow, Ms Debby Lim, Ms Lye Hui Xian, Mr Kishan Pillay, Mr Evans Ng, Mr Benjamin Teo, Ms Gloria Lee, Ms Lee Hui Yi, Mr Fong Wei Li, Ms Aileen Chua, Mr Suang Wijaya, Mr Kyle Leslie Sim, Mr Alex Liam

The Law Society SecretariatChief Executive Officer Ms Delphine Loo TanCommunications & Membership Interests Mr Shawn TohCompliance Mr Daniel TanConduct Ms Ambika Rajendram, Ms Rajvant KaurContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Clifford HangInformation Technology Mr Michael HoKnowledge Management Mr Kenneth GohPro Bono Services Mr Tanguy Lim, Mr Gopinath s/o B Pillai, Ms Claudine Tan, Mr Goh Peng LeongPublications Ms Sharmaine LauRepresentation & Law Reform Mr K Gopalan

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Continued from page 1



Even if not a universal lawyerly characteristic, all this negativity takes a toll for a large number of us. An oft-cited study in the Journal of Occupational Medicine published in 1990 that surveyed over a hundred professions, ranked lawyers at the top for depression. So the ability to see problems while a trait of many lawyers, (especially master lawyers), is also an occupational hazard. But, if a negative mindset can cause low resilience in the first place, the converse must surely be true as a matter of logic. It is certainly true as a matter of psychology. A positive mindset can fortify against a low-resilience response. Perspectives from Psychology According to clinical psychologist and resilience researcher, Dr. George Bonnano, a central element of resilience is perception (see Konnikova, “How People Learn to Become Resilient” published on 11 February 2016 in The New Yorker). The authors of “Four Things Resilient Lawyers Do Differently”, write that how we perceive stress, challenge and adversity directly influences how we will respond to any stress trigger. When lawyers think that they have the resources to deal with a stressor, they are more likely to view stress or adversity as a challenge that they can overcome. The converse is true. When lawyers perceive their resources to be lacking under stress, they may view stress as a threat. Having a rigid, inflexible response to stress, change and adversity can lead to the following:

1. Increased errors and missing information and deadlines

2. A “turf protection” mentality

3. Diminished collaboration and cooperation with colleagues

4. More stress

5. Poorer work quality

6. Reduced collegiality and even an increase in incivility

7. Survival-based emotions and reactions like impatience, defensiveness and hyper-criticality

Neurological Evidence Psychology aside, there is also neurological evidence proffered by Dr. Larry Richard in another article entitled “Stress and the Lawyer Brain” published in October 2012.

He refers to the 2012 work of a prominent neuropsychologist, Richard Davidson in his book called The Emotional Life of Your Brain. There, the author presents findings from three decades of research. He makes the case that every person has a certain “Emotional Style”. That is the collective result of how that individual is wired in each of six types of brain circuity. Each circuit is like a dimmer switch, with a high and a low end. On each circuit, we have a “set point” or a comfort zone. Each of these circuits can be reliably measured in a scientific way. One of those circuits Davidson specifically calls “Resilience”. That refers to how quickly one recovers from an assault to the system such as being stressed out by an external event. Some people naturally recover quickly. Others are naturally slow to recover. We all start out in life with a set point, a comfort zone, a home base. The most important point he makes is that recent research suggests that we can change our set point by how we think and by how we pay attention. One of the other circuits that Davidson discusses is called “Outlook”, and it has to do with how positively or negatively one views the world and how long they can sustain a positive effect. Davidson’s work shows that there are brain circuits that remain electrically active longer in the positive person, but turn off more quickly in the negative person. Are you one who sees a glass half full or half empty? In neuroscience, there is a common phrase: neurons that fire together, wire together. The more you nudge your mind towards positive thoughts, for example, thinking about things you are grateful for, looking for the positive, the stronger these thought patterns will become. Professor Munidasa Winslow in a talk given to our lawyers in January on navigating professional burnout advocated having a gratitude journal. Write down three things you are grateful for every week. Dr. Robert Emmons (a Professor of Psychology at UC Davis in California) found that those who maintained a gratitude journal experienced significant psychological, physical and social benefits. A 25 per cent improvement in overall health and well-being compared to a group focusing on what had gone wrong each day. Resilience and the Singapore Legal Profession I have touched on the scientific and theoretical aspects. But this is more than an academic piece. The theme of resilience offers an underlying multi-faceted analysis of what happens when our lawyers are under severe stress.



In truth, the message is closer to home (Singapore) than we realize. In the last few months, I have met a few lawyers who have battled severe stress, depression and reached a point of being suicidal. Thankfully, these examples are few and far between. The concern though is that there are some others suffering in silence. All of us need to overcome setbacks. From deals becoming abortive and watching work dry up to losing cases and losing out on cases. Client demands, service complaints, sub-optimal work support, disruptive changes to legal practice, retardation of practice. And the list goes on. We have a term for the fear of losing out. Kiasuism. But the reality is that some of us will lose out. Some of us are struggling in real time as we read this. Resilience is for you. I do not share about resilience from an ivory tower. I have had my own share of setbacks. One of them was paying my own way through law school in the second to fourth year (at one point reaching the nadir of having no money in my wallet at all). Resilience is not a once in a lifetime life skill. As I write this, I overcame a week of unusual and extraordinary work challenges. But we are not alone. There are others who have surmounted far worse things. Some lawyers in our midst have overcome great physical, mental and emotional setbacks. These are the true heroes and heroines in our midst. Organisations (like law firms) need resilience too. They will not always have bright and sunny days. Setbacks in getting revenue, realizing receivables and collection challenges in our present environment are real. Part of the resilience journey for organisations will involve cost-cutting measures, focusing on niche expertise and navigating blue-ocean areas of work. Practical Tips Let me leave you with some practical tips. Davis-Laack, Richard and Shearon in their article, “Four Things Resilient Lawyers do Differently” cited earlier say that the most resilient lawyers do four things differently: 1. They stay inspired. Meaning matters enormously at

work: in fact, it’s a central source of motivation. Meaning also builds your resilience and your engagement. The most successful and resilient lawyer is in it for more than a paycheck. They see how their work has value and impact. Losing the motivation, energy and vitality is

a recipe for burnout it makes working in the law a chore instead of a calling. I want to share an observation here. For some of our young lawyers, meaning will come from pro bono work. If there is an incessant, unhealthy focus on billables in our firm at the expense of pro bono, this will affect meaning and fulfilment for the young lawyers. It will set in motion a vicious cycle that ultimately leads to lawyers becoming less resilient. That is a lose-lose-lose proposition for the lawyer, the law firm and the legal profession.

2. They think differently. Some people catastrophize.

They let their worst-case scenario thinking get the best of them. This stops them from taking purposeful action.

3. They use stress as an opportunity to connect with

others. Your stress response is actually meant to push you closer to resilience by causing you to reach out to others. Helping behaviour actually serves as a stress buffer.

4. They give more than they take in relationships. A

foundational pillar of resilience is maintaining high-quality connections with others. Your success depends on how you approach interactions with other people. It is truly more blessed to give than to receive.

One of the many benefits of developing resilience is that the skills that create resilience reinforce and support each other. For example, when you focus on creating better relationships, you also increase meaning in your life because the interactions you have with the people who matter most are more high-quality. Conclusion In conclusion, let me end with a quote that served me well when I was in a valley experience in my adult life. It comes from George S. Patton:

Success is how high you bounce when you hit bottom. In the final analysis, it is the one who has rebounded after hitting rock bottom who is truly successful. So keep rebounding. Keep rebounding. Keep rebounding in resilience. [Adapted and developed from a speech given at the ALB SEA Law Awards Dinner on 18 May 2017]

► Gregory Vijayendran President The Law Society of Singapore


News

4 May 2017Business Simulation Workshop for Legal Practitioners (4th Run)Organised by the Continuing Professional Development Department2.30pm-5.30pm137 Cecil Street

8 & 9 May 2017Mediation: Strategic Conflict Management for Professionals (Module 1)Jointly organised by the Law Society of Singapore and Singapore Mediation Centre9.00am-5.00pmThe Law Society of Singapore

12 May 2017Managing Fee Pressure: Harnessing Tools and Technology to Help You Manage Competitive PressureJointly organised by the Law Society of Singapore and Thomson Reuters12.30pm-1.45pmThe Law Society of Singapore

15, 16 & 17 May 2017Mediation: Strategic Conflict Management for Professionals (Module 2)Jointly organised by the Law Society of Singapore and Singapore Mediation Centre9.00am-5.00pmThe Law Society of Singapore

18 May 2017Basic Written Advocacy Workshops (Module 1)Organised by the Advocacy Committee6.00pm-7.30pm The Law Society of Singapore

18 May 2017Seminar on Cybersecurity for LawyersJointly organised the Law Society of Singapore and SingTel2.30pm-5.00pm55 Market Street

22 May 2017Networking Skills for Lawyers (Workshop)Jointly organised by the Law Society of Singapore and LegisComm2.30pm-5.30pm137 Cecil Street

23 & 24 May 2017Talent Management and Succession Planning for Legal PractitionersOrganised by the Continuing Professional Development Department8.30am-6.00pmThe Law Society of Singapore

24 May 2017Small Law Firms and State Courts & Family Justice Courts Committees LuncheonJointly organised by the Small Law Firms and State Courts & Family Justice Courts Committees12.30pm-2.30pmThe State Courts Bar Room

Diary

Diary and Upcoming Events

News


Diary and Upcoming Events

Upcoming Events27 July 2017Seminar on Understanding Third Party Funding in Singapore17 August 2017Public & International Law Conference 201724 & 25 August 2017Singapore Insolvency Conference 201721, 22 & 23 September 2017 Handling Financial Experts in Court10 November 2017Law Society 50th Anniversary Dinner & Dance 2017

25 May 2017Committee Chairpersons’ LuncheonHosted by Council of the Law Society of Singapore12.30pmThe Law Society of Singapore

25 May 2017Networking Skills for Lawyers (Networking event)Jointly organised by the Law Society of Singapore and LegisComm6.30pm-9.00pm11 Empress Place

29, 30 & 31 May 2017 The Law Society Trial Advocacy Course 2017Organised by the Advocacy Committee9.00am-7.10pmThe State Courts

30 May 2017 Seminar on Public Interest LawyeringOrganised by the Public and International Law Committee 5.30pm-7.10pm55 Market Street


News

Dear Members,

The Law Society Council and Secretariat are busy examining the recommendations by the Working Group on Legal & Accounting Services which was established under the Committee on the Future Economy’s Sub-Committee on Future Growth Industries and Markets. The recommendations were released on 7 April 2017 and contain four key thrusts:

1. Strengthening our global market position;

2. Transforming our legal and accounting sectors;

3. Equipping legal and accounting professionals to be future-ready; and

4. Building thought leadership.

Strengthening Global Position

The Working Group identified nine high growth areas, of which seven were areas in which lawyers could channel their energies towards, namely Dispute Resolution, Intellectual Property, Finance, Projects & Infrastructure, Corporations, Restructuring as well as Risk Management and Corporate Governance. The Continuing Professional Development (“CPD”) Committee and Secretariat department at the Law Society have already started to focus their efforts on ensuring quality CPD seminars in these high growth areas and will continue to do so.

The Working Group also recognised that coordination is needed to fully exploit opportunities and optimize the use of resources. A new inter-agency office which will be known as the “Professional Services Programme Office” will be set up by MinLaw, MOF, EDB and MAS and some of the key personnel slated to run the office have already reached out to the Law Society for a preliminary discussion on several proposals to help law firms internationalise. We will keep our members informed once we have concrete details. Apart from more mission trips and networking opportunities to build up contacts and understand the markets, the Law

From the Desk of the CEO

Society recognises that our law firms may need help to build capability and productivity in order to expand overseas, which leads us to the next point.

Transforming the Legal Sector

Transformation does not necessary equate to “disruption” or “innovation” which are arguably overused buzzwords that could have multiple meanings, although this can certainly be the game-changer for some of our law firms. For the majority who already have a sustainable business model, it could mean mere minor tweaks to move up the capability and productivity ladder.

As you know, the Law Society has recently pushed out a series of initiatives to increase technology adoption among lawyers to increase capability and productivity. Please contact <[email protected]> for more details.

1. Tech Start for Law – the Law Society is working with SPRING Singapore to disburse subsidies of up to $2.8million to fund 70 per cent of the first year subscription fees for up to five users for three types of solutions – practice management, knowledge management and online marketing tools. This scheme will run till 28 February 2018 on a first-come-first-serve basis. For more information, please visit https://www.lawsociety.org.sg/For-Lawyers/Running-Your-Practice/Practice-Support/Tech-Start-for-Law-Programme;

2. SmartLaw Assist – the Law Society has set aside $300,000 from the Education Fund to subsidise 70 per cent of your law firm’s first year subscription fees for a knowledge management database. This scheme will run till 30 June 2017 on a first-come-first-serve basis. For more information, please visit https://www.lawsociety.org.sg/For-Lawyers/Running-Your-Practice/Practice-Support/SmartLaw-Assist; and

3. SmartLaw – is a Law Society recognition scheme for law firms who have harnessed legal technology

CEO's Message

News


CEO's Message

to increase productivity. Law firms who qualify for the scheme will be allowed to use the SmartLaw logo on their website and marketing collaterals. The criteria is that your firm must (1) use a practice management or accounting software; (2) have an online KM subscription (such as LawNet); and (3) have an online presence (whether a dedicated website or a listing with an online directory including LawSoc’s). There is no deadline for this scheme. For more information, please visit <https://www.lawsociety.org.sg/For-Lawyers/Running-Your-Practice/Practice-Support/SmartLaw>

Be Future-Ready

The Working Group envisages the future lawyer to have multi-jurisdictional capability, able to provide integrated cost-effective solutions and to have strong industry knowledge. Our CPD seminars will continue to equip lawyers with practical skills such as those relating to business acumen, running of law practices and talent management. We are busy preparing for a new update of the practice manual that law firms can refer to for “best practices”. The Law Society Arbitration and Mediation Schemes allow our members to develop a competency in the practice area of dispute resolution.

The Law Society also recognises that the future lawyer does not just know the law but is an indispensable business partner. We are currently exploring a secondment scheme with a recruitment agency to help member firms build and strengthen relationships with clients and to develop the

in-house perspective so that the firms can better anticipate clients’ needs.

Building Thought Leadership

The Working Group wants Singapore to be a thought leader in standards and research by pioneering and setting standards and frameworks in legal services for the region and recognises that the private sector can play a part to put Singapore on the map for professional services. The Law Society is exploring tie-ups with organisers of international and regional conferences which will allow our members the opportunity to showcase his or her expertise by participating in such conferences. We are also exploring tie-ups with accountants’ associations to develop thought leadership in certain specific areas.

In the upcoming months, we will certainly have more to report so do stay tuned for more updates!

► Delphine Loo Tan Chief Executive Officer The Law Society of Singapore

Notice of Change of Particulars Members are required to submit a “Notice of Change of Particulars” through eLitigation (https://www.elitigation.sg/home.aspx) whenever there is any change in the particulars relating to your practice, eg if you move from one law practice to another, if there is a change in your designation, or if you cease to practise. The Notice of Change of Particulars can only be submitted through the eLitigation account of the individual lawyer. If you do not have an eLitigation account, you may approach the Service Bureau for assistance, subject to payment of applicable fees and charges. Please refer to the Supreme Court’s step-by-step guide on submitting a Notice of Change of Particulars at http://www.supremecourt.gov.sg > eLitigation > Practising Certificate > e-Filing Service.


News

On 29 February 2016, the Legal Aid Bureau launched its new case management system, GENIE (Green ENd-to-end paperless process supported by Intelligent E-system). This replaced the Bureau’s previous case management system LAMP (Legal Aid Management Portal). With this, the Bureau, which registers over 9,000 applications for legal aid, advice and assistance each year, became the first “law firm” in Singapore to go “paperless” on such a big scale. This article sets out the Bureau’s experience in using technology to create a fully electronic workplace, and how this has helped us increase our efficiency and reduce manpower costs.

Before Genie: the Need to Move Away from Physical Files

LAMP was implemented in 2005. It functioned as an electronic case management system, and was used largely for administrative activities such as processing contribution payments and the registration of cases. However, it was not possible to draft documents on LAMP, and it was also cumbersome to store and retrieve any documents stored in it. Thus, the Bureau continued to maintain hardcopy documents in physical files. This meant that:

1. no more than one officer could work on a file at the same time;

Genie Comes Out of the Lamp – The Legal Aid Bureau’s Journey into a Completely Paperless Environment

2. the full information on a file could only be obtained by checking both the physical file and LAMP, shared drives where drafted documents were stored, and e-mails;

3. the physical file needed to be retrieved by human record keepers whenever information on the file was required or someone wanted to work on it; and

4. it was difficult to monitor statistics and track trends in the Bureau’s cases, since much of the data was in hard copy form.

With over 9,000 new applications a year and over 10,000 paper case files being stored in the file cabinets in the Bureau’s premises,1 there was a pressing need to create digital files, in order to solve the above problems.2

The Genie Journey

In June 2013, work started on the GENIE project. The design, development and implementation of the project took about two and a half years. We envisioned an environment which would not just solve the problems listed above, but give added benefits to our officers, our Applicants, our Assigned Solicitors and the general public.

The key milestones of the GENIE project are set out below:

Date Activity Remarks3 June 2014 Award of Tender to Vendor

(novaCITYNETS Pte Ltd)–

June 2014 to January 2016

Design and Development of Phase 1 (GENIE Case Management System)

Brainstorming, getting ideas and buy in from LAB officers and related departments (e.g. Finance), working with vendors

July 2015 to January 2016

Phase 1 User Acceptance Testing (UAT) Users had to test the system to ensure that its functions met our business requirements

30 November 2015 Soft Launch of GENIE Document Management function of GENIE was rolled out for users to get used to working on electronic documents, but they still had the hard copy documents to rely on, for security

29 February 2016 Launch of Phase 1 No more hard copy documents!

Legal Aid Bureau‘s Genie

News



What Genie Does

The casework processes which are now done/stored in GENIE include:

1. Registration of cases and means testing;

2. Attendance notes of telephone calls and meetings with the Applicant and other parties;

3. All correspondence related to the file;

4. Drafting and storage of court and other documents;

5. Court attendance notes – with most hearings attended by lawyers just using a laptop without any physical files or printouts of documents; and

6. “Billing” (i.e. assessment of contribution payable by the Applicant,3 monitoring of payment).

Any hard copy documents sent to the Bureau (e.g. correspondence from a third party) are scanned into GENIE. E-mails sent to the Bureau or sent out from the Bureau relating to a file can be stored into the relevant GENIE case-file at the click of a button.

On 23 January 2017, further improvements were made to GENIE in the form of the Applicant e-Portal (“AP Portal”) and the Assigned Solicitor e-Portal (“AS Portal”), which enable our Applicants and Assigned Solicitors4 to interact with the Bureau online.

GENIE also incorporates the use of Data Analytics and Business Intelligence functions which enable us to monitor the work of individual case officers and also track trends for all our cases.

Genie Successes

The following are a few illustrations of how our aspirations for GENIE have come to fruition:

1. Everyone Works Faster and More Easily

With GENIE, the turnaround time for doing work on each file is much faster than in the past, as:

a. Multiple officers can access and work on the same case concurrently, unlike pre-GENIE days, where only one officer could work on the file at any one time and others who wanted the file had to wait until he finished.

b. GENIE is a “one-stop” place for information on a file. All e-mails, correspondence, court documents, attendance notes and other information related to a file can be found on GENIE. Officers do not have to spend time hunting around different places for file information. The information is also stored and sorted in a way that makes it easy for the user to find what he is looking for.

Date Activity RemarksApril 2016 to December 2016

Design & Development of Phases 2 & 3 (E-services and Business Intelligence)

Brainstorming, getting ideas and buy in from LAB officers and related departments (e.g. MinLaw Community Legal Services Division), working with vendors

October 2016 to December 2016

Phases 2 & 3 UAT Users had to test the system to ensure that its functions met our business requirements

23 January 2017 Launch of Phases 2 & 3 –

Table 1: Key Milestones of the GENIE Project

A typical lawyer’s desk before GENIE


News

c. Communication between the Bureau’s officers for all case-related matters is now instantaneous through GENIE. Officers can send messages to each other through GENIE. These messages are stored in the system as a permanent record of the activities on the file. This is in contrast to the past where such communication was usually by writing minutes in the physical file and routing it to the recipient.

d. GENIE is available to officers who want to work off-site. They can now access all their files through their laptops instead of having to carry physical files around.

“Our work processes are more efficient now as tasks are sent and received immediately. GENIE also makes it convenient for us to work outside the office – I can review case documents at home or at court without having to lug the files around.”

Ms Joan Pang, Assistant Director

“It is faster to search for case information and documents in GENIE than in a physical file. When I go into a case in GENIE, I can see the case information at a glance. Searching for documents is also easy as there is a preview of each document in the case folder.”

Ms Cindy Chen, Legal Executive

2. Manpower Savings: No Need for Registry Staff, No More Lost Files

Given that the Bureau opens thousands of new legal aid files each year, we needed as many as 5 registry staff to perform administrative functions such as collecting and distributing the files and recording the movement of the files. Post-GENIE, we no longer require any registry staff. In addition, we no longer have the problem of lost files!

3. Use of Standard Templates to Take Instructions

GENIE has incorporated standard templates for certain subject matters (e.g. divorce and Mental Capacity Act applications) for our Legal Executives (LEs) to record the Applicant’s instructions during the first client meeting. As these templates provide guidance to the LEs on the necessary information that they need to obtain from the Applicant, they are especially helpful to new LEs and ensure that all the key information is obtained for each

matter. This avoids unnecessary follow-up calls to the Applicants, which would inconvenience them.

4. Going to Court Paperless: No Need for Bulky Files or Missed Court Dates

With GENIE’s e-briefcase function, our Legal Officers (LOs) can now go to court with just a laptop instead of bulky physical files.5 The e-briefcase is a software client installed in all LOs’ laptops which allows LOs to access all the case documents in court without an internet connection and record court attendance notes electronically.

When the LOs return from court and connect back to the GENIE system, the court attendance notes are generated as a PDF file and automatically uploaded into the case folder. The details of the next court date are also automatically synced into our court calendar in GENIE, ensuring that all court dates are monitored.

5. Use of Business Intelligence: Monitoring Individual Efficiency and Identifying Trends

GENIE also has Business Intelligence and Data Analytics capabilities which allow us to track the efficiency of individual officers, as well as broader case trends. Those holding management roles are able to monitor officers’ individual caseloads, see the speed with which they complete their files, their mediation settlement rates, and so on. Contribution collection rates and status can also be monitored for individual files, as well as across files. The Bureau can also leverage on the statistics generated to identify trends which may be useful in the review of policies to better assist our Applicants.

The AP Portal and the AS Portal

The AP and AS Portals allow the Applicants and Assigned Solicitors to communicate with the Bureau electronically. Any activity done through the Portals is also immediately and automatically tracked and updated in the respective case folders in GENIE, without the need for an officer to input the information manually.

Prospective Applicants can also check on their eligibility for LAB’s help and make an application online without the need to travel to the Bureau. Private solicitors who wish to volunteer their time and services with us can also register online.


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A summary of the key functions of the AP and AS Portals is as follows:

AP Portal – what the Applicant can do

AS Portal – what the Assigned Solicitor can do

Register a case for selected subject matters

Receive & accept case assignment invitations

Complete the means test for legal advice cases

Update the progress of assigned cases

Check appointmentsMake payment

Submit and receive documentsSend enquiries and receive replies

Update personal particulars

Table 2: Key Functions of the AP and AS Portal

The AP Portal reduces the need for our Applicants to contact or attend at the Bureau, or call the Bureau for case information. The AS Portal allows our Assigned Solicitors to liaise with us more efficiently and conveniently, thus expediting the cases for our Applicants.

“I like the Portal – user friendly, paperless, able to work anywhere, no file to return upon completion, savings on costs, for instance, online storage instead of warehouse storage.”

Ms Lim Lay See (Messrs LS Lim Law Practice), Assigned Solicitor

“The AS Portal is a step in the right direction as it is both an efficient and user friendly system. I have personally found it convenient to access the Portal wherever I am and also find it easy to download the documents into my work folders.”

Ms Dharma Jayaram (Messrs Dharma Law LLC), Assigned Solicitor

Change Management: Getting People to Embrace a Paperless Environment

One of the main challenges in transiting into a fully paperless environment was changing the mind-set of officers who were used to a paper environment. We invested a lot of time and effort in our change management activities to ensure that our officers embrace the new way of working.

1. Phased Roll-out Approach: Transiting One Step at a Time

We designed a phased roll-out approach instead of a “big-bang” approach, so as to build the confidence of our staff in working electronically. Therefore, we had a three-month transition where officers got used to working on electronic documents, and at the same time, got used to the idea of having GENIE instead of LAMP. Before we launched GENIE on 29 February 2016, we soft launched the Document Management function on 30 November 2015, where officers would work on electronic documents in GENIE alongside physical files. Officers were given a three-month period to transit at their own pace. They were urged to start “converting” to the new way of working during this time, i.e. relying on electronic documents instead of the physical files.

Once they were acquainted with the idea of having to work on GENIE, we then launched the system on 29 February 2016. Upon the launch, we stopped the circulation of paper files as everything could be done electronically. This gave officers no choice but to use GENIE exclusively for their work.

“It was difficult to switch at first as it is a paradigm shift. But once you have made the switch, the speed of work is amazing.”

Mr Louis D’Souza, Senior Deputy Director

“As I grew up in the pen and paper era, the switch to a paperless work environment was initially challenging. However, as GENIE was launched in phases, there was sufficient time for me to gradually adapt to the changes. Now, I find that GENIE helps me to complete my work faster as I can gather all the information easily without having to flip through thick paper files like before.”

Mr Victor Lim, Deputy Director

After we gained the buy-in from our internal staff, we then rolled out our AP and AS Portals on 23 January 2017. Having almost a year of experience of working electronically, we were better able to anticipate what was required to educate the Applicants and Assigned Solicitors on the use of the Portals, and to encourage their use.

2. Involvement In Every Stage: Forging a Sense of Ownership

Throughout the development of GENIE, we involved all our staff at various stages, from the senior LOs to

A typical lawyer’s desk after GENIE

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the filing clerks. We organised brainstorming sessions to gather their suggestions and feedback. We also scheduled them to take part in the UAT phase, where they had to test out the developed system and check that it met their needs. In this way, GENIE was developed jointly through everyone’s efforts.

3. Training: Leaving No One Behind

Before each stage of the phased roll-out, we conducted many training sessions for our officers, including our Finance department colleagues and other support staff. In fact, we had a full six days’ worth of training just before the launch on 29 February 2016, with each day focusing on particular roles and functions. Where necessary, we catered for additional sessions for particular officers who had difficulties using the new functions.

4. Blocking of Schedules

To allow our officers to get used to the new system, we also blocked the first two days of launch where no appointments or court hearings were scheduled on 29 February 2016 and 1 March 2016. Our officers could then focus on using GENIE without having to worry about meeting and serving our Applicants at the same time.

New Technology – Same Mission

The Bureau first started operations in 1958, with all the officers working with pen and paper and physical files, with a typing pool to type official documents. Almost 60 years later, the typing pool is gone, the physical files are gone, and all officers are armed with laptops, and 2 large screens each. However, the nature of the work and the Bureau’s mission remains the same.

The volume and demands of the Bureau’s work have risen significantly through the years, from an average of 2,510 case registrations in the 1960s to 6,874 in the 1990s, and 9,053 in FY 2016. These challenges are anticipated to continue. In the past few years, the Bureau has been actively trying to harness technology to do our work better and faster, in order to meet the challenges of the future. The adoption of GENIE is one major step in this effort, which furthers our mission to provide quality legal aid, advice and assistance to persons of limited means.

Lim Hui MinDirector of Legal Aid

Edmund Chew Senior Assistant Director

Yvonne GohAssistant Director

Please e-mail us at [email protected] or [email protected] if you would like more information about GENIE.

The Legal Aid Bureau offers legal representation in a wide range of civil matters including divorce, monetary claims, custody of children, estate matters and claims for compensation in personal injury or medical negligence cases. Additionally, the Bureau is supported by a panel of some 600 volunteer lawyers, known as Assigned Solicitors. These lawyers handle cases that require special areas of expertise such as cases involving Syariah Law, or cases where both parties are legally aided and the Bureau’s lawyers are conflicted from doing the cases.

For further information, please refer to our website at <https://www.mlaw.gov.sg/content/lab/en.html>.

Notes

1 In June 2013 when we started on the GENIE project, there were about 10,500 paper files stored on-site. This does not include the files in circulation with our officers and other files which were stored offsite.

2 After we had the idea of going paperless, we engaged KPMG in 2012 to conduct a Business Process Re-engineering (BPR) Study to review and improve our organisation structure and processes. Some key recommendations were made from the study which were subsequently incorporated and implemented in GENIE, such as having a single place where all information is input and captured, an algorithm to automatically assign cases to officers based on language and subject-matter, and automatic sending of SMS notifications to Applicants to remind them of appointments and court mediations.

3 Under section 9 of the Legal Aid and Advice Act (Cap. 160), the Director may require an Applicant to make one or more contributions in one lump sum or by instalments.

4 Assigned Solicitors are solicitors from private practice who assist the Bureau with our cases.

5 For complex cases with voluminous documents, the LO will still prepare and bring hard copies of the documents to court as the court will usually request for hard copies during the hearings for such cases. For cases where the Other Party is in person, we will also need to prepare hard copies to serve on them.


> mdd.comAUSTRALIA • BRAZIL • CANADA • HONG KONG • JAPAN • NEW ZEALAND • SINGAPORE

THAILAND • UNITED ARAB EMIRATES • UNITED KINGDOM • UNITED STATES

With more than 40 o ces on 5 continents, MDD is the world's premier forensic accounting firm. We regularly provide litigation services and expert witness testimony in courts and arbitrations.

Our expertise includes:

> Assessing Security for Costs > Employment Litigation> Business Valuation > Fraud/Ponzi Investigations> Business & Shareholder Disputes > Intellectual Property/Patent Infringement> Construction Disputes > Lost Profits> Divorce Matters > Personal Injury/Wrongful Death

Find out why MDD is the choice of both plainti� and defense counsel in Singapore, please contact Hayley or Iain on the details below.

10 Collyer Quay • #05-10 Ocean Financial Centre • Singapore 049315T +65 6327 3785 F +65 6327 3784

Making Numbers Make Sense

Our expertisegoes well beyond the numbers

Hayley NaidooFCCA, CFESenior [email protected]

Iain PotterACA, CA (Singapore), FCSI, FSIArb, [email protected]

Feature


Fact or Fake News The “Role of Law” for Data Accuracy

False information is an unfortunate by-product of rapid advances in infocomm technology. The problem is brought to the forefront recently by the impact of 'fake news' on socio-political developments. It has been identified as an dilemma for which the law may provide some solution. The appropriate approach should focus on prevention and deterrence, and involve all segments of society (in particular news and social media platforms). The answer may already be found in existing laws that can be updated to deal with the issue.

“Political language ... is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

George OrwellPolitics and the English Language, 1946

A Rising Problem – “Alternative Facts” and Convenient Untruths

2016 was a watershed year for western politics and for online news and information dissemination; both of which were intricately linked in what is becoming a protracted battle for informational integrity. The problems of informational overload and data accuracy was already apparent even before it became a catch-phrase after the type of political rhetoric surrounding the Brexit Referendum and the U.S. Presidential Elections, which was fraught with untruths. However, the sheer amount of false information and the audacity of its purveyors in 2016-7, as well as the rise of ‘fact-checking’ practices by news and other media outlets highlight the problem as never before.1 Fake news continues to be a political weapon, such as in the recent French elections.

New Media and the Viral Effect

There are multiple reasons leading to this sorry state of affairs, most of which are exacerbated by rapid progress in information and communications technology; particularly advances in storage technology, high-speed electronic transmission and ease of access to digital information. The reasons for the rise of the ‘fake news’ problem includes: Online anonymity; modern forms of ‘viral dissemination’ (e.g. through social media platforms); the ease of cloaking falsehoods (e.g. by obfuscating lies with a dash of truth or masquerading opinions as facts); the human tendency to accept data that affirms personal beliefs (or that aligns with personal interests) as truth; the age of User-Generated Content, in particular citizen ‘journalism’; a culture of instant gratification and sensationalized news (i.e. news as entertainment); the race between news outlets to report even before verification; and the blurring of lines between credible news outlets and tabloid ‘journalism’.2

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Singapore and “Fake News”

Recently, there have been an increasing number of statements and opinions emerging from Singapore on the threats that fake news poses to Singapore as a society and to its political landscape as well as the possibility of new laws to curb, if not eliminate, the creation of or access to such news.3 Local incidents include fake Facebook accounts of Ministers of Parliament, false identification by cyber-vigilantes and other fake news relating to various events (including potentially sensitive issues that could sow racial and religious discord).

On the one hand, government officials and private sector “experts” have called for new laws and public-private cooperative efforts to deal with such problems; on the other hand, proponents of freedom to information (particularly on the Internet) led by citizen journalism website editors and contributors are decrying what they perceive as another opportunistic clampdown on non-traditional media platforms and sources.4

In fact, the government is already reviewing the feasibility of new laws to deal with fake news, but have not provided any details on what form that could take.5 The Minister of Law and Home Affairs, K. Shanmugam have come out to declare that current laws are inadequate and provide only limited remedies to deal with falsehoods after the damage has already been done (and that is, in reality, irreparable), referring only to an offence under the Telecommunications Act for knowingly transmitting a false message.6

Legal Developments in Other Jurisdictions

The concern over false information, especially in the political field, has already led to the introduction or proposal of laws to combat the problem in other jurisdictions. In the United States, former U.S. President Barak Obama signed the National Defense Authorisation Act of 2017 (“NDAA”) into law. That Act authorises the Countering Foreign and Disinformation Act of 2016 (“CFDA”) to tackle the problems of disinformation and foreign propaganda.7 The focus was specifically on false information relating to politics and also against foreign manipulation of information to influence politics in the U.S.

In Europe, the European Union Parliament President Martin Schulz have proposed a harmonised regional solution to the problem. Meanwhile, there are already state sanctioned fact-checking websites set up for the region and some Member States also have their own websites for fact-checking (e.g. factcheckeu.org for the EU and pagellapolitica.it in Italy respectively). Some Member States have gone ahead

with their own plans to deal with the issue. For instance, Germany’s coalition federal government is considering new legislation that provides for hefty fines for social media platforms such as Facebook and Twitter that ‘publishes’ fake news and fail to react fast enough to remove such posts that are brought to their attention.8 Also, the Justice Ministers in three German states have reportedly proposed anti-botnet legislation to deal with automated social-media accounts that spread fake news.

The Root of the Problem

The law is an appropriate tool to fix the fake news problem. After all, the law and justice are based on truth and the search for the truth. Existing traditional controls are not entirely suitable in the digital paradigm. However, there are already mechanisms that are still effective to deal with the problem in an arguably balanced manner. Any changes to the regulatory regime should start with these laws and work seamlessly with the existing measures.

The overarching challenge that the authorities face is to put in place a system of legal checks and balances taking into consideration conflicting policy interests such as the smart nation initiative and the freedom of speech and expression on the one hand, and the need for informational integrity and accuracy on the other. Also, the final solution cannot solely be a legislative or executive one, but rather a concerted effort by both the public and private sectors (including society at large).

The pen is mightier than the sword, and person that controls the narrative wields real power. When considering legal measures, we must first identify the parties whose actions will have the strongest impact on the creation and dissemination of false information: First, the gatekeepers of online information, including Internet intermediaries and Content Hosts such as search engines, news aggregators and social network platforms is an important key to the solution. Second, Internet Content Providers, specifically the authors, will have to be held to some co-regulatory standard of responsible speech and an independent fact-checking mechanism.

Preemptive measures should be the main focus of a legal solution, as false information and news can inflict lasting damage after it has been disseminated, even if it is subsequently disproved. Where damage or harm is caused, appropriate remedies, on top of punitive and non-punitive damages, should also be made available. Thus, any legal measure should focus on the following main objectives: The first is deterrence, which is difficult given jurisdictional limits and digital anonymity. Thus, punishment will have a

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limited effect and technological measures to sieve out ‘fake news’ will be more effective. The second is prevention, which can be in the form of restriction of access or removal of content. The incapacitation of fake news purveyors is more justified in recalcitrant and egregious cases. The third is correction and the reduction of harm or negative effects, such as through a mechanism that requires a retraction (and apology) or that allows for a right of response.

Existing Laws and Regulations

At the base level, the Info-Communications Media Development Authority (the “IMDA” or the “Authority”) already sieves out publications based on several factors, presumably including publications containing false information, via a suite of regulations requiring licence for publications, whether in print form or digital format.

For example, a permit is required to print or publish newspapers in Singapore and for the sale or distribution of a defined class of newspapers published overseas.9 Licenses are required to operate printing presses and also for online news publications. Separate licences are also required of other forms of communication like radio and television broadcasts. Conditions must be met for such permit to be issued or licence given.10

In relation to the provision of online news and other programmes on the World Wide Web through the Internet, Internet content and service providers must adhere to generous guidelines relating to “public interest”, “public order”, “national harmony” as well as those based on moral (“good taste and decency”), racial and religious grounds.11 The ambiguity of these guidelines are cushioned by the standard required of licensees, which is based on “best efforts” to comply with the Regulation through the taking of “reasonable steps in the circumstances” of each case. Further guidance by the relevant government agencies will of course be helpful in this regard.

Meanwhile, there are other laws that provide for criminal offences for speech or expression, based on the type and nature of the content and/or its effects on the subject.12

Proposed “Source and Gateway” Approach Under the Internet Content Regulations

The IMDA’s Broadcasting Act (Cap 28) (the “BA”), and the subsidiary legislation for Internet content regulation, in particular the “class licensing framework”, allow the Authority to demand the “take down” or removal of websites that host content on a wide range of basis. These can be interpreted to extend to false news, although it is unclear to what extent

it covers falsehoods generally, that is, the different forms they may take and their impact (which can range from the innocuous to the seriously damaging or harmful). The regulations are drafted widely enough to cover websites as a whole, such as news outlets and specific pages of a site (i.e. not the entire website). Hence, there is no compelling need for new laws to deal with the problem of “fake news”.

Rather than to promulgate new laws to deal with “fake news”, the Authority should refine the existing Internet content regulation framework instead. The Internet content regulations consists primarily of the Broadcasting (Class Licence) Notification (Cap28 N1) (the “Notification”) and the Internet Code of Practice (the “Code”).13 Individual licences are also issued in some cases as determined by the Authority.14

This is the best approach for several reasons. First, this approach will draw the least criticism as it is merely clarifying that existing regulations that have worked well are also suitable for, and applicable to, the “fake news” problem. Second, this is an opportune time to provide an update of the existing provisions and provide much needed clarity to the current framework, especially on the interpretation of “Internet Content Provider” and “Internet Service Provider” that are subject to the regulations. Third, the current regulations provide an arguably “light touch approach” that primarily targets access to information rather than censorship of the source (which is in any event less effective if it originates overseas); hence it already includes Internet intermediaries (which, as will be made apparent, plays an important and integral role in the battle against fake news). Fourth, there is no need to differentiate between “fake news” and other forms of false information in general, which can fall within one of the generous exceptions to free speech and expression that are already provided for under the current regulations.

In relation to “Internet Content Provider” (the “ICP”) in particular, the current definition under the Class Licensing Scheme is confusing and requires more clarification through amendment. Under notification 2(a), it refers to “any individual in Singapore who provides any programme, for business, political or religious purposes, on the World Wide Web through the Internet”, which seems to limit the class licensing regime to websites that deal with any one of those three forms of transaction or content (as the case may be). However, notification 2(b) further includes “any corporation or group of individuals (including any association, business, club, company, society, organization or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any programme on the World Wide Web through the Internet”, which is much wider in scope

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based on a literal reading of the definition, since it now includes websites that cover any type of content. Indeed, the entire scheme seems to focus on content beyond “business, political or religious” programmes since the type of exclusions – in the Notification, in particular under the Schedule which specifies the conditions of the class licence; and as described in the list of “prohibited material” in para 4 of the Code – extend beyond those topics.

Moreover, notification 2(b) further “includes any web publisher and any web server administrator”. In relation to this, it is pertinent to note that it provides leeway to the inclusion of “Internet Content Hosts” under the definition as a “content providers” in the wider sense of the word. For example, para 14 of the Schedule to the Notification provides that “[a]n Internet Content Provider who provides a webpage on the World Wide Web through the Internet to which other persons are invited to contribute or post programmes shall use its best efforts to ensure that such programmes conform with such applicable Codes of Practice as the Authority may issue from time to time”, which appears to include content hosts for third party user-generated content such as social media platforms, citizen journalism websites and encyclopaedias that allow anyone to contribute content (e.g. Wikipedia).

Notification 2(a) may in fact be a subset of notification 2(b) on the basis that “group of individuals” can also refer to an individual.15 Moreover, it also makes sense to read notification 2(a) to cover groups of individuals as well, since the focus of the regulation under this definition is on the type of content rather than the provider as such.16 However, if that argument is not accepted, then at least on a practical application of the regulation, it will apply to websites that are published or administered by more than a single individual, which is likely to be the case.

A possible reason for the dual definition of an ICP is to highlight the sensitive nature of certain types of content and to give special notice of its providers of their responsibility for those obligations.17 In relation to businesses, a class license is facilitative as it explicitly obviates the red tape for registration of such sites to do business in or from Singapore. Certain businesses, in particular those that provide “on-line newspapers for a subscription or other consideration” may be notified in writing to register with the relevant authorities,18 while others such as an on-line service in or from Singapore that provides “Singapore news programmes” within the scope of regulation 3A is carved out of the automatic class licensing regime and subject to specific licenses and conditions, including more onerous ones like the putting up of a bond, over and above that provided for in the Code that remains applicable. For websites providing political or

religious content, which has often been determined by the government as sensitive in nature, they are clearly flagged as content under the scheme for which its providers have to comply with registration requirements under the Schedule to the Notification.19

Hence, it will be useful if the definition of an ICP is made clear as it determines the scope and coverage of the Regulation, and also its usefulness as a tool to fix the “fake news” problem. Making it clear that the regime covers news aggregators, social media platforms that provide news feeds and other similar content hosts or sources of news will have the effect of ensuring compliance as well as allow for concomitant amendments to the Regulations to include specific conditions for operation, such as the measures that deal specifically with the problem of “fake news” and false information that will be proposed below.

Once relevant Internet intermediaries are clearly brought into the Internet content regulatory framework, the actual measures that they need to take specifically in relation to “fake news” can be set out (in the similar way that specific broadcasting licence conditions can be made). This can be done within or outside of the class licensing scheme; that is, under section 9 of the Broadcasting Act (with an amendment to the Notification) or under section 8 of the same Act (specific licenses), which was incidentally the way that citizen journalism outlets for Singapore news have been dealt with under the current scheme since 1 June 2013.20 In either context, the proposed two-level approach should deal with the source and the gateway (or access provider) as set out below.

Information Sources or Content Providers: Categorising and Fact-Checking

First, there is a need to distinguish between news sites on the one hand, and opinions (including satire) on the other. According to the Oxford Dictionary, “news” is “newly received or noteworthy information, especially about recent events”. In the context of this article, it refers to factual information that is of interest to members of the public and goes beyond traditional broadcasts or publications. As false information as a whole is as much of a problem as fake news, and based on the above definition, “news” and “information” shall be used interchangeably in this part of the article; and shall be distinguished from opinions which are subjective views from a perspective that is not necessarily fact-based (e.g. based on false premises or half-truths).21 Certainly, “news” itself extends beyond politics.

The current content regulatory regime places the responsibility and power only on the IMDA. More measures

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can be put in place to involve civil society, in particular, credible interest groups - such as an association of librarians, academics, media outlets and civil rights organisations - to work with the Authority and Internet intermediaries.22 Civil society groups can, for example, form a committee to assist Internet intermediaries to meet their face-checking obligations and to identify fake news websites or platforms for the purpose of reporting such as to the Authority to issue a takedown notice (pursuant to the Notification) and to intermediaries to take such necessary measures that will be described below. They can also be a credible source of accurate information and provide for the correction of misinformation for readers, particularly in relation to highly disputed information or news from high profile sources and in relation to popular topics. 23

In short, setting up civil society groups to determine the facts, and to dissemble fact from fiction or half-truths online is an important self- and co-regulatory approach. The exact role and make-up of such groups in the scheme will have to be considered in detail by the IMDA. In the meantime, some Internet intermediaries are already tweaking their algorithms and enlisting the help of more “neutral” media groups to fact-check news, identify recalcitrant ‘fake news’ proponents and flag biased sources.

The above proposal deals with “fake news” without determining its merits or the gravity or importance of such news (which is impossible to determine with precision).24 Whether “trivial” or important, the legal outcome can be dealt with elsewhere based on the type of content and impact or harm caused as the case may be. In other words, where “harm” is caused, there are criminal and civil recourse through existing content specific laws such as the law on defamation, harassment, obscene publications, sedition, and so on.25 For example, the Sedition Act has been used successfully to deal with offences under this Act, including the online publication, distribution and reproduction of seditious publications.26 Persons can also be charged under the Protection from Harassment Act (the “POHA”) for providing false information that amounts to harassment.27 Similarly, there are criminal and civil recourse for defamatory statements or publications in Singapore law, including the making of an apology (and correction) under section 10 of the Defamation Act. Section 15 of the POHA provides recourse to natural persons to prevent the publication of false statements of facts and for the removal of such publication; and although it does not extend to the government,28 the latter (and other private legal entities) can still utilize their own channels of communication (and the measures recommended below) to dispel and correct such statements as well as to prevent future access to websites that perpetuate them.

Gateway Organisations, Content Hosts or Access Providers: Tagging, Flagging and Ranking

As stated above, the current Internet content regulations should be amended to clearly and unequivocally include relevant Internet intermediaries and bring them into the scheme.29

The main focus here should be on such intermediaries including search engines that provide new aggregation services and social network platforms that provide news feeds, which are the main disseminators of information. Internet intermediaries that hosts and/or provide access to information can be required by regulation to retool their interface to categorise news separately from opinions, with anything that is a mix of news and opinion to be categorized as the latter. This can be done by putting them in separate frames as opinion or review, by colour coding them, or both. Currently, a news search under news aggregators such as Google News and Yahoo! News produces results from traditional and social news sites without distinction.

Another measure that can be considered is to include directions for ad blocking for websites (e.g. Google, YouTube, Facebook and Twitter) to reduce or eliminate the financial incentives to generate traffic through sensationalizing news or fake news.

Furthermore, relevant intermediaries can be required to put in place reasonable measures for the reduction in search results ranking or to tag/red-flag contentious news or news sources so as to prevent and deter the proliferation of fake news and purveyors that are producing and disseminating them.30 They can be guided by, and work with, credible fact-checking groups or committees appointed by the Authority and/or by the intermediary through private arrangements. The earlier proposed fact-check committee, network or organization, whatever form or role it should take, can also advise these intermediaries on categorization and other measures; and utilise the amended content regulations to take down sites (in egregious cases),31 or to tag/red-flag them as unreliable sources of information.32

For tagged or red-flagged sources, perhaps the search results (of search engines or news aggregators) or news feeds (of social media platforms) can also provide a new mechanism that will feature/suggest a “reply”, alternative sources or a fact-check post (or website) for the reader to visit. This will be better received than outright blocking of sites, encourage digital literacy and develop discerning readers in society (and in the long term, obviate heavy reliance on third parties or the Authority to ensure accuracy of information). Alternative sources can come from individuals or fact

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checking sources, both public and private. In Singapore, for example, there is a government run website, “Factually”, that seeks to dispel fake news and false impressions; in the U.S., there are various fact checking sites that are privately run such as the International Fact-Checking Network (or “IFCN”) by the Poynter Institute (which also provides fact-checking training and certification),33 and Factcheck.org. These websites can themselves be the subject of rejoinder.34

In summary, the current notice and take down procedure for intermediaries for false news sites and the proposed mandatory processes for counter-falsehood technology will suffice. The key Internet intermediaries can provide other (more nuanced) remedies besides site blocking, take down notices, and the provision of alternative sources. These include measures such as tagging/flagging, ranking and warnings attached to the source of (or news in) contention. Fact-checking (providing access to fact-check sites), tagging/red-flagging and/or lowering the rank of disputed sites and separating factual news narratives from opinion websites will be more credible and acceptable measures to the public than outright censorship.

Finally, the above-mentioned proposals are consistent with some measures that several prominent gateway organisations are already doing. For example, Facebook is developing its strategy and technological mechanisms to deal with fake news presented in its news feeds. Google’s approach is to provide a fact check tag/flag with fake news in its search results. Both are working with fact-checkers independent of their organisation.35

Final Words

An all-or-nothing or entirely top-down approach is not feasible. A multipronged approach and one that engages and involves all segments of society (that are the stakeholders in the demand and supply chain of information, including news), and in particular, those that hold the key to information access, is integral to a good and effective strategy. What is clear is that this will be a long and protracted battle for information integrity and factual accuracy.

► Warren B. Chik Associate Professor of Law Associate Dean (External Relations) Singapore Management University E-mail: [email protected]

Notes

1 Digital data is dominant and it has been reported that most data in the world was created in the last few years, and the gap will be increasingly short given the rapid

advances in information storage technology. See, SINTEF, Big Data, for Better or Worse: 90% of World’s Data Generated Over Last Two Years (22 May 2013), available at: https://www.sciencedaily.com/releases/2013/05/130522085217.htm.

2 Also, the data economy and monetization of information through traffic and readership (e.g. through pay-per-click advertising models) alone can lead to, for instance, the temptation for sensationalisation of information and hyper-partisan political news, to draw traffic and attract readership.

3 Rachel Au-Yong, Experts Welcome Laws to Curb Fake News (17 April 2017, Straits Times), available online at: <http://www.straitstimes.com/singapore/experts-welcome-laws-to-curb-fake-news>;

4 For example, Mothership.sg, The Middle Ground, The Online Citizen, The Independent.sg, All Singapore Stuff (ASS), among others, have since posted their opinions, critiques and analyses of the government’s intention to deal with fake news as well as predictions on the form it will take. See e.g, Nyela Zannia, Former ISD Detainee Responds to Government’s Intention to Curb “Fake News” (18 April 2017, TOC), available at: <https://www.theonlinecitizen.com/2017/04/18/former-isd-detainee-responds-to-govts-intention-to-curb-fake-news/>; TOC, The Impending Regulations on Fake News and Why There Should be a Line (10 April 2017), available at: <https://www.theonlinecitizen.com/2017/04/10/the-impending-regulations-on-fake-news-and-why-there-should-be-a-line/>; Belmont Lay, K. Shanmugam: All Singapore Stuff and States Times Review are Fake News (3 April 2017), available at: <http://mothership.sg/2017/04/k-shanmugam-all-singapore-stuff-states-times-review-are-fake-news/>

5 Rachel Au-Yong, Keeping Fake News at Bay (8 April 2017, Straits Times), available online at: <http://www.straitstimes.com/singapore/keeping-fake-news-at-bay>; Valerie Koh, Government Review Underway to Deal with Fake News (3 April 2017), available online at: <http://www.todayonline.com/singapore/government-review-underway-deal-fake-news>; CNA, Government ‘Seriously Considering’ How to Deal with Fake News: Shanmugam (3 April 2017), available online at: <http://www.channelnewsasia.com/news/singapore/government-seriously-considering-how-to-deal-with-fake-news/3647556.html>; Ronald Loh, Law may be Reviewed to Counter Fake News (4 April 2017, The New Paper), available online at: <http://www.tnp.sg/news/singapore/shanmugam-current-law-limited-dealing-fake-news>.

6 Rachel Au-Yong, Fake News: Current Laws “Offer Limited remedies” (4 April 2017, Straits Times) available online at: <http://www.straitstimes.com/singapore/fake-news-current-laws-offer-limited-remedies>. The provision is section 45 of the Telecommunications Act (Cap 323) which makes it an offence to knowingly transmit or cause to be transmitted a false or fabricated message.

7 Available at: <https://www.congress.gov/bill/114th-congress/house-bill/5181/all-info>.

8 Among the proposed changes are provisions for the swift removal of false information and prominent corrections, which necessitates an accessible process for complaints to be made and acted upon, and regular audits or reports on their actions and progress. In order to meet such obligations and to avoid sanction as well as to show that it is serious in tackling this issue, it is likely that such platforms will, whether legally mandated or not, provide or enhance the manpower and/or electronic processes to deal with screening or verification and complaints or reports of false news.

9 Newspaper and Printing Presses Act (Cap 206).

10 See the Broadcasting Act (Cap 28) and its subsidiary legislation.

11 Notification 15 of the Broadcasting (Class Licence) Notification (Cap 28, N1) only restricts those conditions contained therein to services that do not include computer on-line services that are provided by Internet Content or Service Providers, and hence, they are excluded from their guidelines.

12 E.g., the Undesirable Publications Act (Cap 338), the Films Act (Cap 107), the Sedition Act (Cap 290) and the Defamation Act (Cap 75). However, the truth or falsity of the information is only relevant in some cases, and is not itself the focus of the legislation.

13 See section 9 and section 6 of the BA, which empower the Authority to determine class licenses and issue codes of practice, respectively.

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14 Section 8(2) of the BA. Under section 3A of the Notification, computer on-line services in or from Singapore that fulfills the conditions under the provision that provides for “Singapore news programme” are excluded from the automatic class licensing scheme in a 2013 amendment (G.N. NO. S 330/2013). Under the Schedule to the Notification, Internet Content Providers dealing with some types of content that meet the requirements must also register with the Authority in accordance with the conditions stated therein (see paras. 3-5 of the Schedule).

15 Under section 2 of the Interpretation Act (Cap 1), “words in the singular include the plural and words in the plural include the singular”.

16 Elsewhere, under the Schedule, the Regulation also refers to “a body of persons” (4) and “an individual” (5(b)) for the purpose of requiring registration in order to deal with political or religious content.

17 At paras. 3 to 5. Similarly, for ICPs in the business of providing an on-line newspaper through the Internet. The provider of such content may be an individual, a corporation or group of individuals (as the case may be) and the Authority will make the determination whether they fall within the definition and requirements of these provisions. See also fn. 14.

18 The setting up and operation of newspapers and printing presses are regulated pursuant to the Newspaper and Printing Presses Act (Cap 206), and as such this is an effort to attain regulatory consistency between physical papers and digital ones.

19 The extension of these regulations dealing with political and religious materials, including online versions, are found in other laws such as the Parliamentary Elections Act (Cap 218)(e.g. rules on political campaigning which extends to online platforms) and Films Act (Cap 107)(“party political films”), and the Sedition Act (Cap 290), respectively.

20 It is of interest to note that section 46 of the Broadcasting Act provides for an offence relating to the contravention of section 8(1) which requires a specific license to provide broadcasting services in or from Singapore. Section 9 provides a class license automatically and hence bears no such offense, but section 16(3) makes it an offence to broadcast a programme that is prohibited by a direction from the Authority.

21 In this regard, if this proposal is taken up, the definition of “Singapore news programme” for the purpose of the individual licensing scheme put in place by notification 3A of the Notification will have to be clarified so as not to exclude those websites that provide both news and opinions, which most (if not all) citizen journalism sites tend to provide.

22 Due to some criticism of the use of fact-checking networks that includes news organisations, perhaps the International Association of Library Association and Institutions (IFLA) or Library Association of Singapore and the local University Research Centres dedicated to this form of research can be considered as alternative or additional resources (and be funded or otherwise supported by the government). This can be in the form of a ‘fact check committee’ consisting of representatives from a reputable cross segment of society (such as librarians, academics, etc.). Their credibility must be backed up by research and evidence, which can be resource intensive and hence some form of government support is important and will be helpful. Certainly, the final make-up of the fact-finders, that will have a role to play in the regulation and in the measures and practices of access providers and hosts, should constitute a non-partisan body or network. The government should also rely on public feedback (i.e. social engagement) to government in addition to the “fact check committee”.

23 The feedback and complaints from these sources can be channelled to a dedicated pool of officers that can utilise the current notice and take down regime more effectively and efficiently in dealing with fake news sites, where appropriate. Alternatively or additionally, the committee itself (and even individuals) can be empowered to some extent (and given a role) in responding to disputed facts at the point of access, so as to give notice to potential readers, in relation to sites that are not recommended for take down or blocking (e.g. those that are not determined to be providing only or predominantly “fake news”).

24 There should not be a distinction made between important and unimportant falsehoods, as it will be difficult and unnecessary for the decision-maker to make that additional determination or judgment. However, the gateway organisation or host/access provider will have to find a way to prioritize their reaction to news as they

develop in such a manner as to react sufficiently swiftly in the dissemination of, and access to, disputed news items.

25 Section 54 of the Broadcasting Act clearly states that “[n]othing in this Act shall prevent any person from being prosecuted under any other written law for any act or omission which constitutes an offence under that law, or from being liable under that other written law to any punishment or penalty higher or other than that provided by this Act, but no person shall be punished twice for the same offence.”

26 See section 4 of the Sedition Act.

27 E.g. the use of threatening words of behavior, heard seen or otherwise by the public, which is likely to cause harassment, alarm or distress. For example, wielding a fake gun or the depositing of fake bombs or what looks like chemical weapons can constitute an offence under the POHA. There have been such incidents in Singapore where the perpetrator was convicted under the Act.

28 Attorney-General v Ting Choon Meng and another appeal [2017] SGCA 6.

29 I.e., the regulation should be updated to clarify on the subject of the regulations (esp. “Internet Content Providers”, and to some extent “Internet Service Provider”), to include news aggregators, search engines, social networking platforms, etc.

30 This approach is not new. An example of additional measures besides the “notice and take down” process to empower and educate Internet users is the obligation, added to the Regulation in 2012, for ISPs to inform, make available and provide reasonable technical support to subscribers Internet content filtering arrangements.

31 These proposed new and additional measures will supplement, and in a way, soften the hard line ‘notice and take down’ mechanism and maintain the “soft touch” approach of the IMDA on Internet content regulation.

32 Using the current Internet content regulation mechanism obviates the problems of proving men rea such as intention or knowledge that is commonly required in criminal provisions. See Kelly Ng, Tackling Question of Intent the Way to Root Out Fake News: Experts (5 April 2017), available online at: <http://www.todayonline.com/singapore/tackling-question-intent-way-root-out-fake-news-expert>.

33 See Poynter, International Fact-Checking Network, available at: <https://www.poynter.org/tag/international-fact-checking-network/>.

34 This is a form of a “right of reply” on top of the “notice and take down” mechanism that is currently available. It is another example of a “light touch” approach.

35 For example, Google provides access to a fact-checker site in reaction to a contested subject; and the site must meet a set of criteria and internal guidelines set by Google (for integrity and credibility as well as standards for transparency and accountability) and that are authoritative sources of information. Some current fact-checking sites are operated by publishers such as PolitiFact and Snopes. A similar fact check system was introduced for Google News for its news aggregator site.

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Edge of Tomorrow: Singapore’s Debt-Restructuring Regime Revisedi

Singapore’s revisions to its insolvency and debt-restructuring regimes aims to challenge traditional jurisdictions such as the United States and England as a centre for international debt-restructuring. The revisions include the adoption of the UNCITRAL Model Law on Cross-Border Insolvency, embracing the principles of modified universalism. Summary

1. The Companies (Amendment) Bill 20171 (the “Bill”) – passed into law on its second reading on 10 March 20172 – intends to introduce four sets of wide-ranging amendments3 to the Companies Act (Cap. 50) (the “Act”).4 One such set involves a significant overhaul of Singapore’s debt-restructuring and insolvency regime provisions. These changes have come into effect as of 23 May 2017.5 This article examines these changes to the status quo and what they mean for Singapore’s push to become an international centre for debt-restructuring.

2. The envisaged changes include:

2.1 enhanced “cram-down” provisions which enable the Singapore Court to cram down a group of dissenting creditors in the context of voting to approve a scheme of arrangement (a “scheme”) in certain, limited circumstances;

2.2 enhanced, extra-territorial “moratorium” provisions in both judicial management and scheme applications, similar to those imposed in US-style “Chapter 11” proceedings;

2.3 the availability of the judicial management regime to foreign companies (provided they meet the criteria set out in the revised Section 351);

2.4 the abolishment of the ring-fencing rule in the winding up of foreign companies;6

2.5 the ability of the Singapore Court to order that any rescue financing provided in a restructuring

(whether effected via a scheme or a judicial management) will have “super priority” status, discussed at paragraphs 9 and 10 below;

2.6 the availability of “pre-packaged” sales in schemes, discussed at paragraphs 14 and 15 below;

2.7 the enactment of the UNCITRAL Model Law on Cross Border Insolvency (the “Model Law”); and

2.8 the statutory codification of certain common law principles and concepts such as a company’s centre of main interests (“COMI”) in determining whether the Singapore Court ought to invoke its jurisdiction over a foreign company to make orders relating to judicial management or schemes.

3. The relevance of these changes cannot be overstated, particularly given the wall of maturing corporate debt that Singapore will have to contend with in the near future – S$38 billlion of local bonds are set to fall due from the time of writing through to 2020.7 Should any issuers default on repayment of these debts, these new provisions may be tested. This may indeed be a likely eventuality given the current complexion of the oil, gas and shipping landscapes, and the financial headwinds expected over the next few years.

Statutory Codification of “COMI” Principles

4. The COMI principles are relevant to the amendments to Section 351, which provide that a foreign company may only be wound up in the following circumstances:

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Either

4.1 the foreign company is dissolved, has ceased to have a place of business in Singapore or has a place of business in Singapore only for the purpose of winding up its affairs or has ceased to carry on business in Singapore;

4.2 the foreign company is unable to pay its debts; or

4.3 the Singapore Court is of the opinion that it is just and equitable that the foreign company should be wound up;

And

4.4 the foreign company has a substantial connection with Singapore, for which determination the Singapore Court may take into account the presence of the following factors in respect of the foreign company:

(a) Singapore is the COMI of the foreign company;

(b) The foreign company is carrying on business in Singapore or has a place of business in Singapore;

(c) The foreign company is a foreign company that is registered under Division 2 of Part XI of the Act;

(d) The foreign company has substantial assets in Singapore;

(e) The foreign company has chosen Singapore law as the law governing a loan or other transaction or the law governing the resolution of disputes arising out of or in connection with a loan or other transaction; and/or

(f) The foreign company has submitted to the jurisdiction of the Singapore Court for the resolution of disputes relating to a loan or other transaction.

5. Consequently, if the foreign company is able to persuade the Court that it meets the requirements set out at paragraph 5 above, the Singapore Court may, in the exercise of its discretion,8 make orders relating to schemes and/or judicial management in respect of that foreign company.

6. Local companies, on the other hand, as creatures of the Act, will generally always be in a position to invoke the provisions of the Act.

Schemes of Arrangement (Sections 211A to 211I)

7. The four main changes to the scheme regime are:

7.1 the extension of the scope of the moratorium which the Singapore Court may order (which brings the moratorium in line with the automatic stay procedures applicable in judicial management, including a stay of realisation of security interests);

7.2 an automatic 30-day moratorium arising once an application for leave to convene a meeting of creditors is made (or is intended to be made);

7.3 the power of the Singapore Courts to cram-down a dissenting group of creditors in certain circumstances; and

7.4 new provisions relating to rescue-financing and the priority given to such individuals or institutions providing rescue finance.

Enhanced Moratorium Provisions

Present Position Under the Amended Act (I) A moratorium under Section 210(10) will only be granted

where the application for the moratorium is supported by a proposal9 made by the applicant company to its creditors.

An applicant company may apply for a moratorium under the new Section 211B(1), provided it has made an application under Section 210(1) for leave to convene a meeting of its creditors or it undertakes to do so as soon as practicable. In the latter case, it need only provide a brief description of the proposed compromise or arrangement (Section 211B(4)(b)).

(II) The moratorium granted pursuant to Section 210(10) is territorial in nature and is limited to contemplated or ongoing proceedings in Singapore only.10

A moratorium granted under Section 211B(1) may expressly be granted extra-territorial effect (Section 211B(5)).

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Present Position Under the Amended ActAny moratorium granted does not expressly bind secured creditors unless an order to such an effect is obtained.

The moratorium may also, inter alia, expressly prevent secured creditors from taking steps to enforce their security (Section 211B(5)). This is consistent with the effect of the making of an order for judicial management.

(III) An application under Section 210(10) may be made as a standalone application although a Section 210(1) application should follow soon after.

An application under Section 211B(1) may not be made concurrently with a Section 210(10) application.

A moratorium granted under Section 210(10) only takes effect once an order is made.

Where a company makes an application under Section 211B, Section 211B(8) imposes an automatic 30-day moratorium during which time no legal proceedings may be enforced against the company and/or security enforced.

This is subject to Section 211B(9) which allows for any creditor to apply to discharge the automatic moratorium or to have it varied.

(IV) Each and every company (in a group of companies) seeking a moratorium must make a separate application pursuant to Section 210(10) to obtain a moratorium.11

Where a company has already obtained a moratorium under Section 211B(1), any/all of its subsidiaries or holding companies may apply for similar moratoria under Section 211C(1), provided the criteria in Section 211C(2) are met.

(V) Presently, when a Section 210(1) and/or Section 210(10) order is in place, the company’s management remains in control of the company and its assets.

Section 211D provides that, for the duration of an automatic moratorium under Section 211B(8) or of an order granted under Section 211B(1)/Section 211C(1), a creditor may apply to the Singapore Court to obtain an order restraining dispositions of company property other than in good faith and in the ordinary course of business, and/or restraining the relevant company from transferring any share in, or altering the rights of any member of, the company (Section 211D(1)).

Enhanced “Cram-Down” Provisions

Present Position Under the Amended Act (I) A scheme may “cram-down” a dissenting minority group of

creditors in a class where the proposed scheme obtains the approval of a majority in number representing 75% in value of the creditors in that class (or each class of them if there are separate classes).

If this statutory threshold is not met, the Singapore Court has no jurisdiction to sanction the proposed scheme.12

Where there are 2 or more classes of creditors voting, the Court may (on the company’s application or that of a creditor who has sought leave to bring such an application) “cram-down” a dissenting class of creditors provided the Court is satisfied that:

(a) a majority in number of the aggregate number of creditors sought to be bound by the compromise or arrangement who were present and voting either in person or by proxy at the relevant meeting have agreed to the compromise or arrangement

(b) the majority in number referred to in (a) above represents three-fourths in value of the creditors sought to be bound by the compromise or proposal; and

(c) the Court is satisfied that the compromise or arrangement does not discriminate unfairly between two or more classes of creditors, and is fair and equitable in respect of each dissenting class.13

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Rescue Financing

8. The introduction of “super priority” provisions for rescue financing is intended to incentivise and protect both existing and/or new investors seeking to inject fresh capital into the distressed company.

9. In general terms, where such an existing or new investor comes forward to inject fresh capital and/or relieve the company from its liabilities under a proposed scheme, the Singapore Court may order that the new investor enjoy “super priority” in respect of such funds injected or obligations incurred, and may do so by:

9.1 treating the debt as a cost or expense of winding up;

9.2 giving the debt priority over all other preferential debts;

9.3 securing the debt with a security interest over the company’s property, whether subject to an existing interest or not; or

9.4 where the property in question is already subject to a security interest, granting the rescue financier security that is subject to, equal or superior to an existing security interest.14

10. It can, therefore, be anticipated that the creation of the “super priority” status of rescue finance may open up new markets and/or business opportunities for banks, financial institutions, private equity and/or distressed debt funds to invest in economically sound, but financially strapped companies, safe in the knowledge that their rescue capital would be accorded priority.

Expedited Scheme Approval

11. The newly-introduced Section 211I grants the Court the power to sanction a proposed scheme without the applicant having to apply for leave to call for a meeting of creditors. Further, the Singapore Court may even sanction a proposed scheme without an actual meeting, provided that the Court is satisfied that, had a meeting been held, it would have obtained the relevant approval of the applicant’s creditors.

12. The burden of proof in invoking this provision is likely to be highly onerous. However, in appropriate cases (an obvious example being in situations where the supporting creditor or creditors, representing a majority in number, clearly have more than 75% in value support the scheme), this new provision is highly likely to result in significant savings of both time and costs.

Present Position Under the Amended Act (I) A scheme only takes effect where:

(a) leave to convene a meeting of creditors (or classes of them as the case may be) is obtained;

(b) the meeting is held and the statutory threshold obtained;

(c) the Court sanctions the scheme of arrangement; and

(d) the Order of Court sanctioning the scheme is filed with the Registrar of Companies.

Under Section 211I(1), the Court may approve a scheme without a creditors’ meeting provided the requirements in Section 211I(3) are met.

In particular, the Court must be satisfied that if a meeting had been called, the requisite approval from the creditors would have been obtained (Section 211I(3)(d)).

(II) A scheme only takes effect where the requisite threshold is met at a meeting of the creditors or any class of them and the Court sanctions the scheme

Under Section 211I(1), the Court may approve a scheme without a creditors’ meeting provided the requirements in Section 211I(3) are met.

In particular, the Court must be satisfied that if a meeting had been called, the requisite approval from the creditors would have been obtained (Section 211I(3)(d)).

13. Where the scheme in question concerns a sale of all or substantially all of the company’s assets, and qualifies for the expedited scheme approval procedure, this will

essentially facilitate the “pre-pack” sale of the scheme company’s assets to a previously identified buyer.

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Present Position Under the Amended Act (I) The Court has no power to order a re-vote. In lieu of approving a scheme at the sanction stage, the Court

may order a re-vote on such terms as it thinks fit, including but not limited to issues of classification.

This amendment assists in ensuring that jurisdictional hurdles may be overcome (e.g. if creditors were incorrectly classed in the first place).

(II) A creditor’s right to inspect other creditors’ debts was a highly disputed issue in the case of Re TT International.

The rights of creditors to inspect other creditors’ proofs of debts has now been codified (Section 211F(6)).

Sections 211F(8) and (9) allows disputes relating to the adjudication of proofs to be reviewed by an “independent assessor” or, failing which, the Court.

(III) When an application to call a meeting of scheme creditors is made, the disclosure obligations of the company are largely governed by case-law, and require that the creditors be provided with sufficient information so that they may make an informed decision as to how to exercise their right to vote.

Section 211B(4) mandates that an application pursuant to Section 211B(1) must be accompanied by supporting documentation including, inter alia, evidence of support for the proposed scheme.

Section 211I(3)(a) expressly provides that the Court cannot approve a scheme unless the company has provided each creditor meant to be bound by the scheme with, inter alia:

(a) information concerning the company’s property, assets, business activities, financial condition and prospects;

(b) information on the manner in which the terms of the compromise or arrangement will, if it takes effect, affect the rights of the creditor; and

(c) such other information as is necessary for the creditor to make an informed decision in relation to the compromise or arrangement.15

14. This arrangement is common in England, where “pre-pack” sales often occur in administration, the English equivalent of Singapore’s judicial management regime. If successful, an expedited scheme could save significant costs and time, and possibly result in greater preservation of value of the relevant assets.

Enhanced Creditor Protection and Flexibility

Various principles enshrined in the common law have now been codified in the revised Act. Further amendments and changes have also been introduced to deal with difficulties which previously arose in scheme applications.

Revisions to the Judicial Management Regime

16. The changes to Singapore’s judicial management regime chiefly relate to:

16.1 the availability of judicial management to foreign companies;

16.2 the solvency threshold for the revised judicial management regime to apply;

16.3 the availability of “super priority” for rescue financing; and

16.4 the right of a creditor having fixed and floating security over all (or substantially all) the company’s assets to object to a company being placed under judicial management.

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The status quo will be altered as follows:

Present Position Under the Amended Act (I) Foreign companies are unable to apply to be placed in

judicial management.Foreign companies may apply to be placed in judicial management, provided they meet the criteria set out in the revised Section 351, i.e. they are companies “liable to be wound up” under the Act.

(II) The threshold for the application for a judicial management order is, inter alia, that the applicant company “is or will be” unable to pay its debts

So long as the other statutory criteria are met, the solvency threshold has been lowered in the revised Section 227B to the applicant company being unable to pay its debts or “likely to become” unable to pay its debts.

(III) There are no provisions relating to the powers of a judicial manager to seek rescue financing.

Under the new Section 227HA, the judicial managers may apply to the Singapore Court to seek an order that any rescue financing be given super priority.

The types of “super priority” that rescue financing may have is the same as that explained above in the context of schemes.

(IV) Any person “…who has appointed or is or may be entitled to appoint a receiver and manager of the whole (or substantially the whole) of a company’s property under the terms of any debentures of a company secured by a floating charge or by a floating charge and one or more fixed charges” may veto an application to place the company in judicial management.

Such persons no longer have an unfettered veto right.

If such a person objects to the judicial management application, it will have to be shown that the making of the order would cause prejudice to that person that is “disproportionately greater” than the prejudice that would be caused to unsecured creditors of the company if the application for the judicial management order is dismissed.

See the amended Section 227B.

18. These key changes are likely to result in:

18.1 foreign companies opting to undergo judicial management here instead of pursuing parallel proceedings in their home country. This would likely be appropriate where such companies have significant assets and/or interests in Singapore, whether directly or otherwise.

18.2 more rescue financing arrangements being entered into, given the greater incentive for interested parties to put judicial managers in funds where “super priority” is available. This would, in turn, result in more robust efforts to rescue companies and/or enforce their legal rights.

18.3 greater protection of the interests of the company’s general body of unsecured creditors, with the ability of particular secured creditors to veto a judicial management application curtailed.

The Model Law

19. Finally, Singapore has adopted the Model Law via the introduction of Section 354B, and abolished the oft-criticised ring-fencing provision in respect of the liquidation of foreign companies under Part XI of the Act.

20. The formal adoption of the Model Law will have the effect of codifying international cooperation with other member states in parallel insolvency proceedings. For example, the Model Law provides the basis for:

20.1 the recognition of the ongoing insolvency process in one jurisdiction as being a foreign main (or non-main) proceeding as the case may be, with other jurisdictions either facilitating or taking the lead of the insolvency process;

20.2 a step towards “globalising” the compulsory, collective process to maximise value in cross-border insolvency scenarios, with the appropriate liquidator / administrator / representative taking

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charge of the insolvency process and getting in the insolvent company’s assets from and enforcing its rights in ancillary jurisdictions;

20.3 a statutory basis to repatriate locally-based assets to the principal place of liquidation (the jurisdiction of the main proceeding), subject to the protection of certain statutory rights accruing to the creditors of the jurisdiction from which the assets are repatriated; and

20.4 the necessary infrastructure for communication between the respective courts and/or insolvency professionals engaged in the various jurisdictions involved in the cross-border insolvency, to ensure a smooth and orderly realisation of assets on a regional, international or global scale.

21. Such cooperation will be facilitated by provisions such as the newly-introduced Section 354B(2), which specifically provides that, in interpreting the Model Law, the following documents are relevant:16

(a) Documents relating to the Model Law, issued or prepared by the United Nations Commission on International Trade Law and its working group ; and

(b) The Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency (UN document 15 A/CN.9/442).17

22. Taken together with the abolishment of the ring-fencing provision, the long-awaited18 introduction of the Model Law marks a departure from Singapore’s traditional territorial approach to cross-border insolvency proceedings, and a shift towards modified universalism. The Honourable Judicial Commissioner Aedit Abdullah observed:19

In cross-border insolvency, there has been a general movement away from the traditional, territorial focus on the interests of the local creditors, towards recognition that universal cooperation between jurisdictions is a necessary part of the contemporary world. Under a Universalist approach, one court takes the lead while other courts assist in administering the liquidation. This is the most conductive to the orderly conduct of business and resolution of business failures across jurisdictions. The tone of the approach in Beluga and the telegraphed adoption of the UNCITRAL Model Law on Cross-Border Insolvency (30 May

1997) (the “Model Law”) in Singapore are indicators that Singapore is warming to Universalist notions in its insolvency regime.

[emphasis added]

23. This emerging approach to cross-border insolvency is demonstrated in recent Singapore High Court decisions20 embracing such principles.

24. Given this general trend, it is likely that this approach will be embraced by the Singapore Courts even for cross-border insolvency issues involving jurisdictions which have not adopted the Model Law.

25. Such an approach would be consistent with that at common law, as set out by Lord Hoffmann in Re HIH Casualty and General Insurance Ltd [2008] 1 WLR 852 (“Re HIH”) 21, and endorsed by the Singapore High Court in Re Opti-Medix:

… The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the eighteenth century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company’s assets are distributed to its creditors under a single system of distribution ...

Concluding Remarks

26. Given the scale of the amendments, this commentary is by no means an exhaustive guide to the changes and amendments to Singapore’s debt-restructuring and insolvency regimes. Instead, it seeks to identify and explain the key changes to the extent possible at this preliminary stage. Indeed, only time will tell how the Singapore Court will interpret these new amendments.

27. Distressed companies within the region (or with interests in the region) may now look to Singapore as a debt-restructuring hub with the relevant infrastructure in place to secure a successful debt-restructuring. It is also envisaged that it will be easier for debtor companies (whether foreign or local) to seek interim protection from the Singapore Courts in respect of prospective or ongoing claims against them, whether in Singapore or elsewhere.

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28. It is hoped that the Singapore Courts will remain vigilant, however, against the potential abuse of the amended provisions by wrongdoers seeking to remain in situ to, for example, hide their wrongdoings or asset-strip the company, despite inevitable insolvency – a matter which the Courts must be alive to

29. Further, and as mentioned above, the introduction of the “super priority” provisions in respect of rescue financing may have the effect of being a “market maker” insofar as it may open up new markets and opportunities for the financially-savvy investor who is willing to fund a turnaround.

30. Finally, what is evidently clear is that, by the amendments into law, Singapore has backed up its express aspirations to be a debt-restructuring destination, and positioning itself to challenge the United States (where restructuring is far more expensive) and England (which does not have moratorium proceedings as part of its scheme provisions) as the destination of first choice for restructuring.

31. Singapore’s track record in establishing itself as a “go to” jurisdiction in the fields of international arbitration, banking and financial services bodes well for its bold move to develop itself as an international debt-restructuring hub. Though only time will tell how successful this particular endeavour will be, we believe that Singapore will rise to the occasion.

► Thio Shen Yi, SC Joint Managing Partner TSMP Law Corporation E-mail: [email protected]

► Alexander Pang Associate Director TSMP Law Corporation E-mail: [email protected]

Notes

i The contents of this update are owned by TSMP Law Corporation and subject to copyright protection under the laws of the Republic of Singapore (as may from time to time be amended). No part of this update may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed, broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of TSMP Law Corporation. Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to prove a general guide to the subject matter and should not be treated as a substitute for specific

professional advice for any particular course of action as such information may not suit your specific business, operational and/or commercial requirements. You are therefore urged to seek legal advice for your specific situation.

1 Last accessed on June 15, 2017.



4 References to “Sections” shall refer to Sections in the Act, as amended in or introduced by the Bill.

5 See the Government E-Gazette notification dated 22 May 2017 available online at <http://www.egazette.com.sg/pdf.aspx?ct=sls&yr=2017&filename=17sls244.pdf >.

6 c.f. Legislative ring-fencing will remain in effect in the case of specific classes of financial institutions (specified by MAS), such as banks and insurance companies.

7 See “Singapore’s looming debt wall fuels concern after Ezra stumbles” (The Business Times, 20 March 2017) (last accessed on June 15, 2017).

8 See Re Pacific Andes Resources Development Ltd and other matters [2016] SGHC 210 (“Re PARD”) at [33], per the Honourable Judicial Commissioner Kannan Ramesh (as his Honour then was).

9 In Re Conchubar Aromatics Ltd [2015] SGHC 322 (“Re Conchubar”) at [12], the Honourable Judicial Commissioner Aedit Abdullah held that the proposal had to be sufficiently particularized such that the Court could consider whether “…on the face of the proposal the Court could conclude that there was a reasonable prospect of the scheme working and being acceptable to the general run of creditors.”

10 See Re PARD at [16] to [17].

11 See Re PARD at [10].

12 See The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd and another appeal [2012] 2 SLR 213 (“Re TT International”) at [178].

13 In determining what is fair and equitable, the Singapore Court must be satisfied, inter alia, that no creditor in the dissenting class receives under the terms of the scheme an amount that is lower than what he is estimated to receive in the event that the company is wound up (Section 211H(4)(a)). Other requirements are imposed by Section 211H(4)(b) as may be applicable.

14 The Court will only order the creation of a security interest equal or superior to an existing security interest over property where there is “adequate protection” provided for the existing security holder (Section 211E(1)(d)(ii)). The meaning of “adequate protection” is explicated in Section 211E(6)(a) to (c).

15 A statutory codification of, amongst other things, the principles enunciated in the Court of Appeal decision in Wah Yuen Electrical Engineering Pte Ltd v Singapore Cables Manufacturers Pte Ltd [2003] 3 SLR(R) 629 at [24].

16 Note that nothing in Section 354B(2) affects the Court’s power to adopt a purposive interpretation of any written law in accordance with Section 9A of the Interpretation Act (Cap. 1).


18 See the Summary of the Recommendations by the Insolvency Law Reform Committee, 2013 at [26] (last accessed on June 15, 2017).

19 See Re Opti-Medix Ltd (in liquidation) and anor matter [2016] SGHC 108 (“Re Opti-Medix”) at [17].

20 See Re Taisoo Suk (as foreign representative of Hanjin Shipping Co Ltd) [2016] SGHC 195; and Re Gulf Pacific Shipping Ltd (in creditors’ voluntary liquidation) and others [2016] SGHC 287.

21 Re HIH at [30].

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PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation1 (“PGN v CRW (No. 4)”): Observations on Preconditions for Arbitration and the Judicial Approach to Setting Aside Awards This case note suggests a different analysis which the Singapore courts may consider applying in future cases of tiered dispute resolution provisions culminating in arbitration.Tiered dispute resolution provisions are meant to have disputes resolved in the most economical way. Only when a supposedly cheaper procedure fails to achieve binding settlement that parties will submit the dispute to the next more resource-hungry one. For example, an engineering dispute may be initially referred to a mediator, after which it receives an expert determination before it is submitted to arbitration.

Hence the Court of Appeal held in International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd (“IRC v Lufthansa Systems”):2 “Where the parties have clearly contracted for a specific set of dispute resolution procedures as preconditions for arbitration, those preconditions must be fulfilled”.3 Otherwise, the arbitral tribunal will lack jurisdiction to hear the dispute.4 In PGN v CRW (No. 4), however, a majority of the Court of Appeal5 subjected a tiered dispute resolution clause to a different analysis.

Facts of PGN v CRW (No. 4)

PGN employed CRW under a domestic construction contract (“Contract”). During the project, CRW submitted variation proposals to PGN, asserted they were performed, and demanded payment. PGN declined to pay CRW. This dispute over variation works was submitted for resolution pursuant to the Contract’s dispute resolution mechanism, which reproduced the relevant provisions of the FIDIC 1999 Red Book, an internationally used standard form.

Clause 20.2 of the Contract stated: “Disputes shall be adjudicated by a DAB [“Dispute Adjudication Board”] in accordance with [Clause] 20.4 ….”6

Since the variation works dispute fell within the scope of Clause 20.4[1],7 it was referred to a DAB for adjudication. That DAB decided that PGN must forthwith pay CRW the adjudicated sum of US$17.3 million. PGN was contractually entitled to8 lodge a notice of dissatisfaction (“NOD”) against the DAB’s decision.9 It did so.

Nevertheless, Clause 20.4[4] stated that a DAB’s decision “shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award”. But PGN refused to pay the adjudicated sum to CRW. This refusal to comply with the DAB’s decision created an additional and distinct dispute.

CRW commenced an arbitration (“Arbitration”) under the 1998 ICC Rules to resolve the two disputes:

1. Whether and how much CRW was entitled to for the variation works (“Variation Works Dispute”).

2. Whether PGN must comply with the DAB’s decision immediately (“Adjudication Non-compliance Dispute”).

CRW claimed corresponding reliefs: (i) a determination that PGN was liable on the merits of the Variation Works Dispute and compensation; and (ii) an interim award for the adjudicated sum with interest. Only the latter relief is relevant here.10 It may be formulated as:11

By refusing to pay the sum adjudicated by the DAB to CRW, PGN breached Clause 20.4[4] of the contract, which obliged PGN to give effect to a DAB’s decision

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promptly. PGN must pay the adjudicated sum to CRW immediately, with interest.12

In the Arbitration, PGN advanced two defences to this claim.13 First, PGN argued that it had not breached Clause 20.4[4] because it owed no such contractual obligation to pay the adjudicated sum, and the DAB’s decision lacked legal effect. PGN also argued that the Tribunal lacked the power to issue an interim award because the Tribunal is obliged to evaluate for itself the merits of the Variation Works Dispute.

The Tribunal was unpersuaded by PGN’s arguments. It made the interim award as sought by CRW (“Interim Award”). The Interim Award disposed of the claim for PGN’s breach of Clause 20.4[4]. While the Arbitration to determine the merits of the Variation Works Dispute continued, PGN applied to the High Court to set aside the Interim Award.

PGN’s Arguments at the High Court and at the Court of Appeal

At first instance, PGN sought to rely on the excess of jurisdiction ground, Article 34(2)(a)(iii) of the Model Law14 (see PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia)15 (“PGN (No. 3)”)). It argued that the Interim Award should be set aside for dealing with a dispute not falling within the terms of the parties’ submission to arbitration.16 The substance of PGN’s argument was that the Tribunal had “exceeded its mandate or jurisdiction by converting the non-final17 DAB decision into [an award] without determining the primary dispute on the merits”. But this was not properly a jurisdictional objection. On appeal, PGN therefore did not rely on Article 34(2)(a)(iii).

Before the Court of Appeal, PGN argued that the Interim Award is “subject to future variation”18 by the Tribunal and is therefore inconsistent with s 19B of the IAA.19 PGN’s other argument was that Clause 20.4 of the Contract deprives the DAB’s decision of binding effect once the Tribunal makes an award on PGN’s liability on the merits of the Variation Works Dispute.20 However, PGN did not link either of those arguments to a setting aside ground in Article 34 of the Model Law. The thrust of PGN’s argument appeared to be that the Interim Award ought to be set aside because it did not qualify as an “award”.

Such an argument was unlikely to persuade the Court given the curial law and the subject-matter of the Interim Award. When an award is made, the tribunal does so in relation to the “substance of the dispute”.21 An award may either be an “interim, interlocutory or partial award”22 or a “final award”. The latter is one which causes the arbitral

proceedings to be terminated once it is issued.23 There may be more than one award made within a set of arbitral proceedings because a tribunal is permitted to decide a dispute or various disputes submitted to it by breaking them down into constituent issues, and making discrete awards in respect of them. A final award describes an award that is concluding—it terminates the proceedings. At the same time, section 19B of the IAA states that an award is “final”24 on the parties and (except in limited circumstances that are not relevant to the present discussion) “the arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award”. The term “final” in section 19B means a res judicata arises in respect of the disputed issue that was decided. All awards are final in the sense that they are conclusive in relation to a specific issue, or claim or part of a claim, or dispute.

Had PGN appreciated that the subject-matter of the Interim Award was a decision on the Adjudication Non-compliance Dispute, it could have taken steps to mitigate the risk of having to make double-payment on one underlying merits dispute—the Variation Works Dispute. One option is to satisfy the Interim Award immediately, and inform the tribunal of the same. The Tribunal may then account for PGN’s payment of the US$17.3 million when it makes the final award. CRW will no longer be able to enforce the Interim Award; and PGN needed only to be concerned with the operation of the final award.

By refusing to satisfy the Interim Award promptly, however, PGN ran the risk of the Tribunal deciding the underlying merits of the Variation Works Dispute as a completely distinct dispute (as the Tribunal was entitled to) in a subsequent award. PGN then faces the prospect of having to deal with two awards—with overlapping compensation sums—against it; it may have to make arguments on set-off if CRW tries to enforce both awards in different jurisdictions.

Had PGN succeeded on its arguments, its interests may still not be served. If the Interim Award was proven not to be an award, it could still be characterised as an “interim measure” which a tribunal is empowered to order under s 12(1)(i) of the IAA. Such an order shall, with leave of the High Court, be enforced as a judgment in terms.25

The Court of Appeal’s Judgments

After dismissing PGN’s arguments, the Court turned to what it identified to be the issue at stake. The majority’s judgment held:26

The real question then is whether it is essential to first go through the process of referring a dispute over the

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“binding” effect of a binding but non-final DAB decision – ie, a DAB decision in respect of which an NOD has been issued – back to the27 DAB under cl 20.4 and then through a further process of amicable settlement under cl 20.5 before referring it to arbitration under cl 20.6. [italics in original]

The dissent pinpointed the same issue:28

… The crucial words in cl 20.6 that delineate the kind of dispute that may be referred to arbitration are the opening words of cl 20.6[1] …. Clause 20.6 is applicable only to … a dispute in respect of which … the DAB decision concerned “has not become final and binding” as a NOD has been issued; and … no amicable settlement has been reached. …

Both sets of analyses were not, however, based on PGN’s own arguments. This is striking because Article 34(2)(a) of the Model Law places the burden on an applicant that wishes to set aside an award to prove that a ground for setting aside exists. While it is a settled point that the courts will conduct a de novo review of the question of arbitral jurisdiction,29 there is no judicial duty to review the facts sua sponte to see if a ground for setting aside is satisfied (including that of lack of arbitral jurisdiction). To endorse such a duty could unduly prejudice a respondent to the application and cause uncertain outcomes.

Furthermore, it is not clear whether PGN itself could have advanced the argument in court, that the Tribunal lacked jurisdiction to decide the Adjudication Non-compliance Dispute because the preconditions to arbitration had not been satisfied. Under Article 4 of the Model Law, a party who knows of any requirement under the arbitration agreement has not been complied with yet proceeds with the arbitration without duly objecting to “such” non-compliance shall be deemed to have waived his right to object. It is unclear whether PGN made the necessary objection during the Arbitration. The tenor of the High Court and Court of Appeal judgments suggests that PGN had not.

Did the Tribunal lack jurisdiction to hear the Adjudication Non-compliance Dispute?

In PGN (No. 4), the majority’s judgment decided that where a dispute of whether a party had breached Clause 20.4[4] was concerned (ie the Adjudication Non-compliance Dispute), the “conditions precedent” for arbitration may be disregarded because:

… Given the purpose and context of the DAB scheme, it would not be commercially sensible to interpret cl 20

as requiring the receiving party [of a favourable DAB decision] to satisfy the conditions precedent in cll 20.4 and 20.5 before it can refer a dispute over the paying party’s non-compliance with a binding but non-final DAB decision to arbitration.;30 and

… [I]t is implicit in cl 20 that a failure to comply with a binding but non-final DAB decision is capable of being directly referred to arbitration without the need for the parties to first go through the process prescribed by cll 20.4 and 20.5.31

There are two difficulties with such reasoning. First, it appears to be inconsistent with IRC v Lufthansa Systems where the Court unanimously held, in obiter, “where a specific procedure has been prescribed as a condition precedent to arbitration or litigation, then absent any question of waiver, it must be shown to have been complied with”.32 That case also rejected the argument that substantial compliance with a condition precedent would be sufficient where the purpose of the precondition could have been met.33 IRC v Lufthansa Systems, however, was not cited in PGN (No. 4).

Secondly, the majority’s judgment allows considerations of commercial sensibility to affect the efficacy of what it recognised as a condition precedent. The extent of such influence, and the circumstances under which it may override a condition precedent are difficult to discern with certainty from PGN (No. 4). It was not clear whether the majority was influenced by any thinking that presumed the arbitration in respect of a binding but non-final DAB decision as the “enforcement” of an already decided matter.34

Finally, the Contract was also governed by Indonesian law. Hence it is arguable that the same law should be applied to interpret the preconditions, since they do not relate to the validity or scope of the arbitration clause. (This view has the support of some English authority.35) The Court may have been constrained to apply Singapore law — and its contextual approach36 — only because the parties did not prove that foreign law. The Singapore courts’ interpretation may not be decisive to the minds of tribunals seated elsewhere even though the provisions derive from a standard form, especially if the provisions are again governed by a foreign law.

Suggestion for Dealing with the Relationship between Preconditions to Arbitration and Jurisdiction

It is difficult to reconcile the reasoning in IRC v Lufthansa Systems with PGN (No. 4). One suggestion is to discard the analysis of a condition precedent and adopt a different

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paradigm, which appreciates a distinction between the jurisdiction of a tribunal to resolve a particular claim, and the admissibility of that claim into the arbitration. Professor Jan Paulsson explains the significance of the distinction and illustrates it:37

Objections of inadmissibility routinely arise in circumstances where a valid arbitration agreement binds the parties and covers the claims presented, and yet the respondent insists that there is an impediment to bringing the claim, such as its alleged prematurity or (at the other extreme) staleness. It is imperative to understand the nature of the alleged barrier, which may very well be mischaracterized by the respondent … Decisions of tribunals which do not respect jurisdictional limits may be invalidated by a controlling authority. But if parties have consented to the jurisdiction of a given tribunal, its determinations as to the admissibility of claims should be final. A failure to recognize an issue of admissibility for what it is may therefore result in an unjustified extension of the scope for challenging awards, and frustrate the parties’ expectation that their dispute to the fullest extent possible be decided in arbitration. …

Consider a construction contract which, in an article entitled ‘Additional Payments’, states that ‘claims by the contractor by reason of delay or disruption caused by the owner must be submitted to the Project Engineer who shall recommend a solution’. Another article, ‘Arbitration’, contains a standard reference to binding arbitration of ‘all claims arising out of this contract’.

If a respondent objects to an arbitrator hearing a claim brought under the afore-described clause, on the basis that the claimant had not obtained a recommended solution from an engineer, what happens? Paulsson notes that the respondent is not arguing that it has not consented to arbitration of the claim; but that it has not consented to arbitration of that claim in the circumstances. If the respondent argues further that this raises an issue of jurisdiction, it will fail under Paulsson’s analysis because the respondent’s challenge is not “relevant to the nature of the forum in which the complaint will be heard”,38 and the “success of the objection does not necessarily negate consent to the forum” to ultimately decide the material dispute.

Consider a hypothetical where CRW sues PGN for the breach of Clause 20.4[4] in an action for an agreed sum in the English courts (because PGN has assets for execution in England), what could PGN do? PGN can successfully apply to the English court to stay the suit. This is because the UK Arbitration Act 1996 (Cap 23) provides that: “A

party to an arbitration agreement against whom legal proceedings are brought … in respect of a matter which under the agreement is to be referred to arbitration may … apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter”; and “the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed”.39

CRW has no defence against PGN’s stay application because the arbitration agreement is valid. Furthermore, PGN is entitled to its stay “notwithstanding that the matter is to be referred to arbitration only after the exhaustion of other dispute resolution procedures”.40

In this hypothetical, it is implicit in PGN’s stay application that it takes the position that the dispute — PGN’s alleged breach of Clause 20.4[4] — must be referred to arbitration instead of litigation. PGN’s position entails CRW commencing arbitration to pursue its claim which (in reality) CRW did.

Hence, the key question to ask in IRC v Lufthansa Systems may not be whether the “conditions precedent” to invoking the arbitration clause were satisfied. The suggested question that a court should ask when it has to review a tribunal’s jurisdiction over a specific claim is: Does the contract give rise to an interpretation that if the preconditions to arbitration of that claim are not met, then another forum should replace the arbitral tribunal to hear that claim?

If the answer is no, then the precondition is merely an admissibility requirement, which satisfaction is to be treated as a set of issues that should be decided by the tribunal within the arbitration as ordinary, unreviewable questions of fact and/or law. For example, in PGN (No. 4), it means that PGN should have raised CRW’s failure to satisfy those admissibility requirements (Clause 20.2) as additional disputes during the Arbitration. If the Tribunal takes the view that the admissibility requirements have to but are yet to be satisfied, it may stay the arbitration until they are met, or it can proceed with the arbitration while taking into account CRW’s breach of those admissibility requirements. Alternatively, the Tribunal may also find that on a proper construction of the contract, the admissibility requirements do not apply to the claim. Lastly, the Tribunal may find that the admissibility requirements had been satisfied, when they were in fact not. In none of these situations should PGN be permitted to obtain Court review of those findings of the Tribunal because they relate to issues of admissibility rather than jurisdiction.

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Under this approach, the outcome of the majority’s decision in PGN (No. 4) was correct—the Tribunal was entitled to make a finding (expressly or impliedly; rightly or wrongly) that the admissibility requirements were met or could be disregarded, and subsequently deal with the question of whether PGN breached Clause 20.4[4], which is a dispute that falls within the arbitration clause.

► Evans Ng Senior Associate TSMP Law Corporation E-mail: [email protected]

Notes

1 [2015] 4 SLR 364.

2 [2014] 1 SLR 130.

3 IRC v Lufthansa Systems at [62].

4 This casenote does not consider whether a tiered dispute resolution clause imposes a binding obligation or merely provides an optional mechanism. The former is assumed.

5 Sundaresh Menon CJ and Quentin Loh J formed the majority. Chan Sek Keong SJ dissented.

6 PGN v CRW (No. 4)’s omission to set out this provision in any form may confuse a reader who is unfamiliar with the FIDIC 1999 Red Book. It is this provision which obliges parties to have their disputes adjudicated by a DAB at first instance. The rest of Clause 20.2 and Clause 20.1 deals with how a DAB is to be appointed.

7 Clause 20.4[1] provided: “If a dispute (of any kind whatsoever) arises between the Parties in connection with, or arising out of, the Contract or the execution of the Works, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer, either Party may refer the dispute in writing to the DAB for its decision, with copies to the other Party and the Engineer. Such reference shall state that it is given under this Sub-Clause.”

8 Clause 20.4[5] provided: “If either Party is dissatisfied with the DAB’s decision, then either Party may, within 28 days after receiving the decision, give notice to the other Party of its dissatisfaction. …”.

9 The only contractual effect of Party A lodging a notice of dissatisfaction in due course against a DAB’s decision in Party B’s favour is to prevent the DAB’s decision from becoming “final”. The term “final” as used in the Contract’s dispute resolution clauses denotes a contractually defined quality and is not a term of art. The clauses remain operational if “final” was substituted with “ɸ”.

10 This claim can be pursued in arbitration by itself: PGN v CRW (No. 4) at [83], overruling CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK (No. 2) [2011] 4 SLR 305.

11 Such formulation is adequate for present purposes, but it may not be for Article 23(1) of the Model Law and Article 4(5) of the 1998 ICC Rules. Article 23(1) of the Model Law requires a claimant to “state the facts supporting his claim, the points at issue and the relief or remedy sought”. The 1998 ICC Rules requires a party wishing to have recourse to arbitration to submit a “Request for Arbitration”, which must contain, inter alia, “a description of the nature and circumstances of the dispute giving rise to the claim(s)”, and “a statement of the relief sought”.

12 This would be an action for an agreed sum under Singapore law. Under the Contract’s governing law—Indonesian law—the claim may need to be differently characterised.

13 PGN (No. 4) at [138].

14 UNCITRAL Model Law on International Commercial Arbitration, given the force of law by s 3(1) of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”).

15 [2014] SGHC 146 (16 July 2014).

16 PGN (No. 3) at [122(a)].

17 See above, note 9.

18 PGN (No. 4) at [26].

19 Section 19B of the IAA provides, inter alia: “An award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties …” and “upon an award being made … the arbitral tribunal shall not vary, amend, correct, review, add to or revoke the award”. This provision was enacted to overrule Tang Boon Jek Jeffrey v Tan Poh Leng Stanley [2001] 1 SLR(R) 273 which permitted an arbitral tribunal to revise its decision contained in an interim award as long as arbitral proceedings were not terminated.

20 PGN (No. 4) at [32] and [108].

21 Section 2(1) of the IAA.


23 Article 32 of the Model Law.

24 Section 19B(1) of the IAA.


26 PGN (No. 4) at [64].

27 The Court should have written “a” instead of “the”. There is a meaningful difference in this context because the reference to a decision-maker under Clause 20.4 could always be to a fresh one. The mistake arose because the Court omitted to identify the material precondition which was Clause 20.2 rather than Clause 20.4.

28 PGN (No. 4) at [159].

29 See eg, Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536 at [41] to [43].

30 PGN (No. 4) at [66(b)].

31 PGN (No. 4) at [70].



34 Such thinking would technically be incorrect. The claimant must plead a claim based on a disputed matter for a tribunal to make an award. CRW’s claim that led to the Interim Award was an action for an agreed sum, which was based on a breach of Clause 20.4[4] founded on PGN’s refusal to comply with a binding but non-final DAB’s decision. The refusal to pay created a “dispute”, which is not negated even if PGN concedes owing an obligation to pay. Even after an award in the terms of the DAB’s decision is made, as long as PGN refuses to voluntarily satisfy the Interim Award, CRW must submit it for enforcement through the respective judicial apparatus in the relevant jurisdictions. It is only at this stage that the term “enforcement” is appropriate.

35 Sulamérica Cia Nacional de Seguros SA v Enesa Engelharia SA [2013] 1 WLR 102 at [60].

36 Restated in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193.

37 The Idea of Arbitration (Oxford University Press, 2013) at 82 to 83.

38 The Idea of Arbitration at 84.

39 Sections 9(1) and 9(4) of the UK Arbitration Act 1996.

40 Section 9(2) of the UK Arbitration Act 1996.

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The Personal Data Protection Act (“PDPA”) requires a law practice to develop and implement policies and practices that are necessary for the law practice to meet its obligations under the PDPA. Information about these policies and practices are to be made available to individuals on request.

These policies and practices can be set out in a Data Protection Policy, also referred to as a Privacy Policy. A Privacy Policy may be in the form of a physical document, or on your law practice’s website, or some other manner.1

This article focuses on the Privacy Policy and we provide suggestions on how to develop a Privacy Policy for your law practice.

Understanding Your Obligations under the PDPA

In order to develop a Privacy Policy, it is important to first understand what your obligations are.

Your law practice’s obligations under the PDPA include the following:

1. To be responsible for personal data in its possession or under its control.

2. To collect, use and disclose personal data in accordance with the PDPA.

3. To designate one or more individuals to be responsible for ensuring the law practice’s compliance with the PDPA. (Data Protection Officer.)

4. To make available the business contact information of a person who is able to answer questions on behalf of the law practice relating to the collection, use or disclosure of personal data. (The Data Protection Officer may undertake this role.)

5. To develop a process to receive and respond to complaints that may arise with respect to the application of the PDPA. Information about the complaint process to be made available on request.

Why You May Need a Privacy Policy6. To communicate to staff information about the law

practice’s policies and practices.

The PDPA provides a number of exceptions and limitations to the various data protection provisions.

It is important to familiarise yourself with the:

1. Personal Data Protection Act

2. Personal Data Protection Regulations

3. Advisory guidelines and guides issued by the Personal Data Protection Commission (PDPC) <https://www.pdpc.gov.sg/>

This article sets out only an overview of the obligations under the PDPA:

Appoint a Data Protection Officer

You2 must designate one or more individuals to be responsible for ensuring your law practice’s compliance with the PDPA. This individual(s), known as the Data Protection Officer (DPO), will be responsible for ensuring that your law practice complies with the PDPA. At least one DPO’s business contact information must be made available to the public. The business contact information may be a general telephone or email address of your law practice.

Collection, Use and Disclosure of Personal Data

Consent – You must obtain the consent of the individual before collecting, using or disclosing his or her personal data. (There are exceptions to the consent obligation set out in the PDPA, including if it is specifically required/authorised under the PDPA or any other written law.)

Purpose – You may collect, use or disclose personal data about an individual only for purposes that a reasonable person would consider appropriate.

Compass

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Notification of purpose – You must notify the individual of the purpose(s) for which you intend to collect, use or disclose the individual’s personal data.

You may choose to notify individuals of the purposes for which you collect, use and disclose personal data through your Privacy Policy. This notification is an important aspect of obtaining consent. For an individual to give consent, he or she must first be notified of the purposes for which his or her personal data will be collected, used or disclosed.

You must allow an individual who has previously given consent for collection, use or disclosure of his or her personal data, to withdraw such consent by giving reasonable notice. Upon receipt of a notice to withdraw consent, you must not prohibit the withdrawal of consent, and you must inform the individual of the likely consequences of withdrawing consent.

Access to and Correction of Personal Data

An individual may make a request:

1. for access to his or her personal data;

2. for information about the ways in which the personal data may have been used or disclosed during the past year; and

3. to correct an error or omission in his or her personal

data.

You must respond to an individual’s request for his or her personal data, or to correct his or her personal data. You should develop a process to receive and respond to such requests.

You must respond to an access request as soon as reasonably possible from the time the access request is received. You should exercise due diligence and adopt appropriate measures to verify an individual’s identity, before responding to an access request.

If you are unable to respond to an access request within 30 days after receiving the request, you should inform the individual in writing within 30 days of the time by which you will be able to respond to the request.

Upon receipt of a request to correct an error or omission in the individual’s personal data, you must consider whether the correction should be made. Unless you are satisfied on reasonable grounds that the correction should not be made, you should correct the personal data as soon as

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practicable. If you are unable to correct the personal data within 30 days from the time the request is made, you must inform the individual in writing within 30 days of the time by which you will be able to correct the personal data.

Care of Personal Data

Accuracy – You must make a reasonable effort to ensure that personal data collected by or on behalf of the law practice is accurate and complete if the personal data is likely to be used by you to make a decision that affects the individual concerned or disclosed by you to another organisation.

Protection – You must protect personal data in your possession or under your control by making reasonable security arrangements to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks.

Security arrangements may take various forms such as administrative measures (e.g. employees to be bound by confidentiality obligations, training for staff on good practices in handling data), physical measures (e.g. storing confidential documents in locked file cabinet systems), technical measures (e.g. installing computer security software, encrypting personal data to prevent unauthorised access, updating computer security and IT equipment) or a combination of these.

Retention – You must cease to retain documents containing personal data, or remove the means by which the personal data can be associated with particular individuals (e.g. anonymization) as soon as it is reasonable to assume that:

1. the purpose for which the personal data was collected is no longer being served by retention of the personal data; and

2. retention is no longer necessary for any legal or business purposes.

Transfer – You must not transfer personal data to a country or territory outside Singapore except in accordance with the requirements prescribed under the PDPA. You must take appropriate steps to ensure that the recipient is bound by legally enforceable obligations to provide to the personal data transferred a standard of protection that is comparable to that under the PDPA.

Developing a Privacy Policy

In PDPC’s A Guide to Notification,3 PDPC has given examples of the layout of a Privacy Policy. PDPC

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recommends the use of simple language, and the use of headers for each section for clarity, e.g. “What types of personal data will be collected?”, “How will the personal data be used?”. For a web-based Privacy Policy, hyperlinks can be used to provide an overview and allow readers to directly access specific content.

Taking into account your obligations under the PDPA, the following are suggested aspects you could consider including, explaining or expanding on in your Privacy Policy:

1. That the policy applies to all personal data provided to you.

2. The business contact information of your DPO.

3. The types of personal data collected.

4. The purpose of collecting personal data. This may include the following:

a. For providing the individual with the service they have requested

b. To prepare legal documents

c. For billing purposes

d. To comply with legal and regulatory requirements – (i) conflict checks to prevent conflict of interests; (ii) client due diligence in accordance with the prevention of money laundering and financing of terrorism requirements

5. If the personal data is required for any other purpose, you will notify them and obtain their consent.

6. That you may be required to share information with third parties whether in Singapore or outside of Singapore - this may include e-mail messaging services, delivery & courier services, cloud computing services, services for handling payment transactions.

7. That individuals may access or correct their personal data. Explain the process for doing so, e.g. they could send their request by e-mail or letter to your DPO. If it is not possible to respond within 30 days, you will inform them of the time by which you will respond.

8. That individuals may withdraw consent for the use and/or disclosure of the personal data at any time. Explain the process for doing so, e.g. they could send their request by e-mail or letter to your DPO. Explain the

Compass

consequences of withdrawing consent, e.g. it may not be possible for you continue to provide services or fulfil the scope of your engagement.

9. That individuals may direct any queries relating to the collection, use or disclosure of their personal data to the DPO.

10. That individuals should update you of any change in their personal data initially provided to you.

11. That you have in place reasonable security arrangements to ensure that the personal data is adequately protected, and is protected against unauthorised or unintended use, access or disclosure.

12. That you will ensure that the personal data is destroyed or anonymized as soon as it is reasonable to assume that (i)) the purpose for which the personal data was collected is no longer being served by the retention of such personal data; (ii) retention is no longer necessary for any business or legal purposes.

13. That if personal data is to be transferred out of Singapore, you will comply with the PDPA in doing so – this includes obtaining the individual’s consent unless an exception under the PDPA or law applies.

14. That if individuals have a complaint about how you are handling their personal data or are complying with the PDPA, they can submit a complaint. Explain the process for doing so, e.g. they could send their complaint by e-mail or letter to your DPO.

Knowledge Management DepartmentThe Law Society of Singapore

Notes

1 The following is stated in the ‘Advisory Guidelines on Key Concepts in the Personal Data Protection Act’ issued by the Personal Data Protection Commission:

14.12 “The PDPA requires organisations to develop and implement policies and procedures that are necessary for the organisation to meet its obligations under the PDPA. In addition, organisations are required to make information available on such policies and procedures. Organisations may wish to develop a Data Protection Policy (also referred to as a Privacy Policy) to set out its policies and procedures for complying with the PDPA. An organisation may choose to notify individuals of the purposes for which it collects, uses and discloses personal data through its Data Protection Policy.”

14.13 “(a) Where the policy is not made available to an individual as a physical document, the organisation should provide the individual with an opportunity to view its Data Protection Policy before collecting the individual’s personal data. …. ”

2 “You” in this article refers to your law practice.

3 <https://www.pdpc.gov.sg/docs/default-source/other-guides/a-guide-to-notification-v1-0-(110914).pdf?sfvrsn=8>

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Imagine receiving an e-mail from an online retailer you always visit, informing you of a flash sale in the next five minutes. Not wanting to miss out on this opportunity you click the link.

Within the next few seconds, your Internet browser brings you to a familiar retail website, prompting for your credentials. Almost like a reflex, you key in your e-mail and password. The next pop-up that greets you, is a set of familiar blue fonts saying “This password was recently changed”.

For the next 30 seconds, you proceed to hammer the keyboard with all known username-password combinations that you can remember, mumbling “One of these must be right …” Before you know it, the flash sale is over and you have just missed one of the greatest deals of your life.

On the other side of the planet, a hacker grins as he has just received the keys to your online kingdom, along with thousands of other victims.

You have just been phished.

What Exactly is Social Engineering?

Social engineering, in a cyber-security context, refers to manipulative acts performed by hackers to get people to give up confidential information, or perform actions that may compromise their computer system.

It is one form of cyber-attack that is often used to gain an initial entry point into an organisation. Social engineering is

Social Engineering – A Perennial Challengehighly effective as it exploits human vulnerabilities which, unlike computer vulnerabilities, are difficult to pinpoint and fix.

Phishing is one of the most commonly known techniques of social engineering. Phishing scams are conducted via the Internet, and often involve spoofed e-mails and re-created websites that look like the original.

Like the scenario mentioned at the start of this article, one of Singapore’s largest banks was also the target of such a phishing scam in 2014. A phishing website built to resemble the bank’s original website was detected by the bank. At first glance, it was impossible to tell them apart.

In 2011, a renowned security company which creates two-factor authentication devices fell victim to phishing e-mails. The attacker sent e-mails to employees with a malicious attachment named “2011 Recruitment plan.xls”. The attachment contained a zero-day exploit – one that takes advantage of software vulnerabilities that have yet to be disclosed publicly and have no ready security fix or patch – which allowed the hackers to break into the company.

In Singapore, KPMG has investigated several cases whereby phishing e-mails are the root cause behind data breaches for companies. Victims include multinationals, law firms and banks. The malicious payload of these phishing e-mails are obfuscated and exhibit a consistent trend of being able to bypass traditional signature-based anti-virus scanning solutions.

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Social engineering may also be performed in person, such as by piggybacking an employee through restricted doorways without a valid pass. One famous example is the story of Kevin Mitnick,1 who masqueraded as a Pacific Bell (AT&T) employee, entered the telecommunication company’s premises, and obtained sensitive information in the process.

However, physical social engineering techniques are high risk manoeuvres. With the proliferation of high definition security cameras and video analytic technologies, physical social engineering techniques could easily compromise a hacker and are rarely practised.

A relatively “safer” approach is vishing – the act of social engineering conducted through the phone. This is generally considered safer for the hackers due to the low risk of being traced, identified and caught. Recent cases in Singapore include the high profile “DHL scam calls” whereby social engineers masqueraded as DHL and overseas customs officers to extort money from unknowing victims. It was reported by the Straits Times2 that over SG$12 million was lost to the scam.

Another similar social engineering campaign also took place in 2016. Social engineers changed their phone’s caller ID to that of the Singapore Police Force’s “999”. Leveraging on the “false authority”, the scammers went on to obtain personal and banking information from victims.3 This method of putting up a false pretence is a social engineering technique known as pretexting.

Who’s at Risk?

Cyber defence is an asymmetrical threat. The low barrier of entry needed to create a malicious software (malware), makes cyber-attacks exceptionally attractive for criminals and rogue nations alike. The situation is further exacerbated by the anonymised nature of the Internet.

Social engineering is often used as a delivery mechanism for such malwares. Anyone, including your employees, may be socially engineered to become an insider threat that compromises an otherwise secure organisation.

The cost to protect, detect, response and recover from such attacks are increasing. According to the 2016 Cost of Data Breach Study conducted by Ponemon Institute, the average total cost of a data breach for companies surveyed had increased from US$3.79 million to US$4 million.4 This is several times the price to purchase a zero-day exploit from the black market.5

According to Cisco’s article on The Industrialization of Hacking,6 organisations are beginning to accept that being hacked is not a matter of if, but when. KPMG’s cyber security framework also reflects this thinking. It is intelligence-driven at its core, highlighting the need to remain at the forefront of the threat landscape.

When faced with a cyber-threat, several courses of actions are available. The 2006 Information Operations publication7 developed for the US Armed Forces defined the objectives of cyber operations as activities to disrupt, deny, degrade, destroy or deceive an adversary in cyberspace.

Apart from these reactive intelligence driven actions, proactive detective measures should also be put in place to ensure that future threats of similar nature are mitigated. These activities constitute a successful threat intelligence programme that should form the cornerstone of any organisation’s cyber security decision-making process.

Safeguarding Your Firm

A holistic security solution encompasses the people, process and technology aspects of an organisation. It should cover the areas of threat prevention, detection and response.

People

People refers to company employees or contractors who have access to internal systems within an organisation. Employees should be aware that the information they put on the Internet could potentially be used against them or their organisation.

Training programmes and exercises could be conducted to enhance the resiliency of employees against social

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engineering. Mock phishing exercises could be conducted to measure the “click-through” rate of employees.

Education is a very effective measure that covers all three tenets of prevention, detection and response. However, for it to be successful, it is essential that managers take ownership of dealing with the challenge of social engineering. They have to show a genuine interest and be willing to study how best to engage with the workforce to educate staff and build awareness of the threat of such attacks. This is often about changing the corporate culture such that employees are alert to the risk and are proactive in raising concerns with supervisors.

Process

Procedural changes could make the difference between a successful exploit and a failed one.

Procedures enforcement such as requiring all sensitive transactions to be verified with an out-of-band verification (e-mails verified with a phone call and vice versa), is one example of a low cost, high payoff mitigation measure.

No information should be provided through the phone, be it directly or indirectly. Employees should be trained to respond professionally through the phone, especially when coaxed for information under pressure. This could be in the form of a third-party asking leading questions, performing elicitation, pretexting or other manipulative communication techniques.

Technology

There are numerous ways in which technology-enabled defences can be put in place against social engineering attacks such as phishing.

An intelligence driven approach should be considered. For example, denial and disruption activities such as blocking or quarantining spam e-mails at the gateway can prevent any accidental user from falling victim to phishing e-mails.

This, however, should not be the only course of action. Such e-mails are often lucrative sources of intelligence. Apart from spam filter, e-mail sandboxes could be deployed to identify suspicious attachments. Such e-mails should be sent to a dedicated cyber threat hunting team for further analysis. Indicators of compromise could be generated from these e-mails to search for existing dormant threats within an organisation and further strengthen existing cyber defence implementations.

Humans, the Weakest Link

The human factor is and remains the weakest link in relation to security.

Creating a safer cyberspace is one of the pillars of the Singapore Cyber Security Strategy. A safer cyberspace is the collective responsibility of the Government, businesses, individuals and the community.

The world of cyber security is dominated by specialist suppliers that sell technical products, such as products that enable rapid detection of intruders. These tools are essential for basic security but are not the basis of a holistic, robust cyber security strategy. Investment in the best tools will only deliver a return when people understand their responsibilities to keep their network safe.

A well-informed employee can turn into a critical asset. An organisation with a cohesive, secure culture is the key to mitigating social engineering.

► Eddie Toh Forensic Partner KPMG in Singapore

► Chua Zong Fu Associate Director, Forensic KPMG in Singapore

The views and opinions are those of the authors and do not necessarily represent the views of KPMG in Singapore.

Notes

1 Source: Ghost in the Wires: My Adventures as the World’s Most Wanted Hacker, K. Mitnick, & S. Wozniak, 2012

2 Source: <http://www.straitstimes.com/singapore/courts-crime/155-people-lost-over-12m-in-dhl-phone-scam>

3 Source: <http://www.straitstimes.com/singapore/do-not-return-calls-from-numbers-starting-with-999-police-on-latest-phone-scam>

4 Source: 2016 Cost of Data Breach Study: Global Analysis, Ponemon Institute LLC, 2016

5 Source: <http://www.forbes.com/sites/andygreenberg/2012/03/23/shopping-for-zero-days-an-price-list-for-hackers-secret-software-exploits/#15e8e9bd6033>

6 Source: <https://newsroom.cisco.com/feature-content?articleId=1572627>

7 Source: Joint Publication JP 3-13 Information Operations, United States Government US Army, 2006

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Practice management software is used by law firms to manage accounting and billing, schedules and appointments, deadlines, vital documents, time-tracking, and client and case records. Most law schools do not teach their students how to operate a law office. Therefore, lawyers should take advantage of such software in order to help them run their law firms in a productive and efficient manner.

However, finding a suitable practice management software can be a difficult task as there are numerous options available. To help you, we have prepared a list of practice management solutions highlighting their main features and benefits. The practice management solutions listed below also feature in the Law Society of Singapore’s Tech Start for Law programme. Law firms who apply under the Tech Start for Law programme can obtain a grant of 70 per cent of the first year costs of adopting such software. More information on the Tech Start for Law programme can be found at: <https://www.lawsociety.org.sg/For-Lawyers/Running-Your-Practice/Practice-Support/Tech-Start-for-Law-Programme>

CoreMatter As a winner of the 2014 Microsoft Worldwide Finalist Award for Cloud Excellence, CoreMatter is a complete web-based legal accounting and practice management solution. It allows users to access their clients’ matters anywhere, anytime, including from their mobile devices. Billing is easy and seamless, captured into a full accounting system which is catered for legal-centric accounting practices. It has a world-class user-interface that provides for an excellent user experience, as compared to many common accounting software for the law firms today. It is easy to use, utilises the digital matter-centric workspace concept and is very affordable for small and medium law firms.

Tech Review: Practice Management SolutionsHow Utilising CoreMatter can Improve a Law Firm’s Productivity

“A lot of the firm’s processes were previously done in books or in spreadsheets, on a somewhat ad-hoc basis. This made things difficult to locate and searching for information and carrying out conflict searches were nightmarish. As disbursements were not always recorded properly or at all, billings were often not accurate. With the practice management system, many of these processes have been integrated in one place, making it easier to locate information and utilise it. Billing and accounts have become a breeze compared to the old ‘paper’ method and our firm information and accounts are now up to date in real time.” – Moncy Mathew, Partner, Mathew Chew & Chelliah

Favourite Feature of CoreMatter’s Practice Management Software

“The search functionality is my favourite feature. The other is the ‘Memo’ function which allows us to update the information on the different files, such as making attendance notes, setting reminders, and so forth.” – Moncy Mathew, Partner, Mathew Chew & Chelliah

Clio Clio is an easy-to-use and powerful cloud-based law practice management software which offers all lawyers need to run a law practice from client intake to invoice, with powerful features to manage cases, clients, documents, bills, appointments, time-tracking, reporting, and accounting. Users are able to operate quickly and efficiently as everything is accessible in one software. Clio also integrates with accounting software like Xero to streamline

Tech Talk

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Tech Talk

users’ billing and accounting processes. Aside from the web application, Clio’s mobile app enables lawyers to access information from their portable devices, and the Clio Connect application enables lawyers to offer a secure portal to share documents, tasks and events with their clients. Clio is suitable even for the less tech savvy.

How Utilising Clio can Improve a Law Firm’s Productivity

“Clio is the program that we use from the start to the end of every file. It helps us record time, disbursements, render invoices and send e-invoices to our clients. Because Clio is cloud-based and we access it as an app on our phones/tablets, all the information relating to our clients and their matters is at our fingertips.” – June Lim, Managing Director, Eden Law Corporation

Favourite Feature of Clio’s Practice Management Software

“I like the fact that Clio is accessible as an app, so I am able to input the time spent directly into the system after attending Court or meetings with clients.” – June Lim, Managing Director, Eden Law Corporation

Lexis Affinity

Flexible and easy to use, Lexis Affinity streamlines everyday work processes into a single system to provide a secure working environment and transparency of business performance, satisfying the needs of the whole practice. By adopting Lexis Affinity, a law firm is able to:

1. Manage and monitor performance using flexible analysis tools and reports. Track and manage performance and profitability across the whole firm.

2. Streamline administrative processes across the whole firm. Automate administrative tasks to improve efficiency.

3. Improve efficiency of legal processes using workflow. Integrate client, contact and matter information into a single system.

4. Set up each step in the workflow templates to prompt staff to enter fees or cause a fee entry to be generated automatically as each task is completed. This ensures all costs and revenues are captured and accounted for.

5. Improve responsiveness using Affinity portal to keep in touch with clients and matters even when you are

mobile. Record time and fees and easily find key client contact and matter details while on the move.

How Utilising Lexis Affinity can Improve a Law Firm’s Productivity

“Affinity is an important tool in maximising our firm’s productivity because it is an efficient and cost effective package that offers multiple functionalities in addition to time keeping. Affinity adopts an integrated approach to financials, matter management, Customer Relationship Management and Knowledge Management. This means that we do not commit additional time, training and resources to deploy separate solutions for different functions. All relevant information is entered, accessed and managed through one software platform resulting in a substantially streamlined data flow and improved work process efficiency.” – Justin Lee, Manager, Legis Point LLC

Favourite Feature of the Lexis Affinity Practice Management System

“Customised scalability. As the first Singapore Affinity installation in 2006, we only had a handful of lawyers and very modest time keeping and matter management requirements. Over the years, our numbers have greatly increased along with our demands for a capable practice management solution. Affinity has kept pace with our growth not only in providing basic financial management and reporting, but also in providing additional functionalities that have validated our original investment in the platform. In addition, we have also been able to customise the deployment of Affinity according to our needs. For example, last year we introduced a paperless claim system administered through Affinity. Even though this was the first instance of such a system in Singapore, the inherent flexibility of Affinity meant that we were able to do this quickly and efficiently without any major changes to the software.” – Justin Lee, Manager, Legis Point LLC

For more information on any of the above practice management solutions or on the Tech Start for Law programme, please e-mail: [email protected]

Legal Productivity and Innovation DepartmentThe Law Society of Singapore

Please note that the descriptions for each of the practice management solutions were provided by the vendors of the respective practice management solutions. The Law Society does not directly or indirectly endorse any products or services provided by the vendors of the practice management solutions described above.

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“Lawyers today will tell you that a law firm should run ‘like a business’… . A business dependent on the intellect of its workforce ought to invest heavily in talent management and leadership development … . Law firms are trying to be more ‘business-like’ but fail to adopt many of the basic talent management principles upon which excellent institutions are built.”

– Lauren Stiller Rikleen, “Law Firms Need To Take Care of Their Talent”, Harvard Business Review, July 2012

The Law Society recently asked my consulting team and I to look at talent management and succession planning in law firms in Singapore. There have been many changes in the legal industry in Singapore recently. These range from an increasing complexity of the industry, new ways of providing legal services, and challenges with talent retention, we were briefed. A look through the academic journals, management articles about law firms and through informal conversations with lawyers, we’ve gathered that talent management isn’t actually something that law firms in Singapore pay very much attention to. This is a bit of a pity - the connection between good talent management and its impact on business is well documented. Talent management, if done right (or at all), provides a pipeline for leadership succession, improves the talent bench strength, and increases employee engagement. A robust talent management strategy helps to make the law firm an employer of choice, helping the firm to attract the right talent.

We have applied what we know from our body of work in this area from other industries to the legal industry. These are some factors to think about in talent management in law firms:

How is Talent Defined?

We asked a handful of lawyers this question - what is talent in the legal industry? They all had a similar reply. “Talent equals rainmaking ability. If you can bring in new clients, you can do what you want.”

In the last 10 years, organisations have started to adopt a broader definition of talent. Talent is people with the skills, attitudes, knowledge, and experience and leadership potential, who have what it takes to enable a firm to achieve its objectives and deliver the vision the partnership has created for itself (Talent Management for Lawyers: A Hands-

Thinking About Talent Management in Law Firms

On Guide, p.2). Rainmaking in a law firm is important. So are other attributes and competencies such as the ability to lead and motivate others, strategic planning, business management, and project management. These abilities and competencies, and many others, contribute to the sustained success of a firm.

It Begins with the Firm’s Organisational Strategy

Talent development needs to be closely aligned to a firm’s organisational strategy. What is the firm’s plan to achieve its short, medium and long-term goals and objectives? What makes your law firm different from the rest? Why should a client choose your law firm? Talent development supports the organisational strategy. It equips lawyers, legal practitioners, and team members with the prerequisite skills and qualities to fulfill the organisational strategy. And it is part of the organisational strategy to attract and retain good people, without whom there is only the organisational strategy and no outcomes from it.

The Definition of Talent Needs to be Clearly Communicated throughout the Firm

There is no such thing as a secret talent management strategy or programme. Everyone in the firm needs to know how talent is defined in the firm, how it is developed, and how it is rewarded. It needs to go into the annual performance appraisal, and needs to form the basis of compensation, benefits, and promotions.

This is the hard part. Very often, talent management is opaque at best. Everyone sort of knows what the senior management is looking for but no one is really sure. How talent is defined, managed, and rewarded shapes employee behaviour and it influences corporate culture. Team members are more engaged when they know what is expected of them, and what attributes and competencies will take them to the next level in the firm. Otherwise there is a constant sense of second-guessing what the bosses and the firm want, and it is easy for the senior management to come across as being unfair or even showing favoritism.

Talent Management Needs to be Structured and Systematic

A lot of learning in firms usually happens on the job. Young lawyers get chosen to work with the more experienced

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lawyers and they learn along the way through hard knocks and through observation. A good talent management strategy needs to be systematic and structured. Team members need to know when and how their potential is going to be measured and reviewed. There should also be a learning and development road map, preferably individualized, to help team members discover and leverage of their strengths and be aware of and downplay their vulnerabilities. Besides technical legal skills, firms should also think of equipping team members with skills on emotional intelligence, how to network, make rain, run the business, manage stakeholders, formulate business strategy, lead and coach other people. It is useful to think about implementing milestone leadership and development programmes in the first few years of a team member’s career with the firm.

Talent Management Needs to be Reviewed Regularly

Just as the firm’s organisational strategy is constantly evolving, it is also important to review and evaluate the talent management strategy so that the two strategies can be aligned. This is usually done by the firm’s senior leadership during its annual strategic planning meetings.

► Grace Lam SeraphCorp Institute Pte Ltd E-mail: [email protected]

SeraphCorp, in partnership with the Law Society of Singapore, facilitates leadership development programmes for law firms in Singapore. The modules are from the WSQ Leadership and People Management (LPM) framework (at the Specialist Diploma level) and are contextualized for the legal industry based on focus group discussions and discussions with leading legal practitioners in Singapore. The modules are government-funded.

SeraphCorp will be conducting “Talent Management and Succession Planning for Legal Practitioners’ on 15 and 16 August 2017. In this 2-day workshop (WSQ Develop Managers and High Potential Employees through Organisational Talent Capability Review, LPM-DEV-501C-0), participants will learn about the principles of talent management, developing high potentials, and succession planning and how they can develop a talent strategy for their firm. Through the learning activities, participants will get to develop game-changing talent strategy to recruit, engage, develop, and retain the right talent for their law firm.

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The Young Lawyer

Dear Amicus Agony,

Amidst the constant reports on the bleak outlook for law firms, my firm went through a series of restructuring to reduce costs and decided to do away with a few members of staff, including my secretary. Without an assistant, I find myself spending much time on menial tasks, including answering telephone calls, preparing invoices, scheduling meetings, printing and photocopying bundles of Court documents, etc. I am constantly carving out time for these administrative matters, leaving little or no time for proper legal work. As a result, my billable hours this month have taken a massive hit.

What can I do? Do you think it is a good idea to speak to my boss about getting a replacement secretary?

Shorthanded Stacey

Dear Shorthanded Stacey,

Unfortunately, the legal industry is indeed going through a rough patch. Business has certainly slowed down for a vast number of legal firms and it is not uncommon to hear of belt tightening measures, including pay cuts, lower or no year-end bonuses and worst still, retrenchment.

If your company has decided to let go off your secretary for cost reasons, chances are they have already assessed the impact of her departure on you and yet have come to the conclusion that you are well-equipped to manage the additional work load.

The challenge is how to stay afloat in a competitive environment and how you can and should help your firm tide over this difficult period. Do you really need a personal secretary to handle all these administrative tasks for you? If you are unable to cope, you can consider roping in an existing trainee or an intern who can share your burden while you focus on the legal work that is piling up. Alternatively, you may wish to reach an arrangement with your fellow colleagues on sharing their secretaries. This is, after all, a team effort.

Despite all, if you feel that you are still unable to cope with the rigorous work load and you desperately need a personal secretary, it is probably good to speak to your boss about it rather than keeping it to yourself. You must however be prepared to justify the hiring of a replacement secretary and consider whether your additional billables can cover the

Amicus Agonycost of hiring a replacement secretary. Even if the outcome is negative, or that your firm simply cannot afford to hire any additional staff, at least by clarifying the matter with your superior, you are able to manage his/her expectations about your billing targets.

Amicus Agony

Dear Amicus Agony,

I am a junior associate in a large law firm. I suspect that one of my colleagues about two years my senior has a crush on me. I am not sure at this point. We are good friends and generally work well together as a team. I do not know whether we would be compatible as a couple, but would not mind exploring this further. Yet, at the same time, I do not want this to jeopardise my career or my future in the firm in any way. What should I do?

Lovestruck LA

Dear Lovestruck LA,

Believe it or not, this situation could be more common than you think. A law firm, like any other corporate environment, could be a hot spot for love sparks and perhaps long lasting relationships to flourish. In fact, the long hours we spend at the office could make this all the more likely.

The appropriate response largely depends on your office environment. Do the lawyers at your firm work in a team or pool system? How likely are you to end up working with that colleague on the same file? How receptive would your boss and your other colleagues be towards having an office couple? And also, how comfortable would you be working together with your boyfriend in a professional environment?

The answers to these questions should help you tailor an appropriate response to the situation. It would also be ideal to have an honest and open discussion with another senior colleague or your boss. This will prevent surprises, uneasy questions and awkward moments down the road. In addition, be mentally prepared that news of you and your potential partner could be the subject of office gossip for some time to come.

But having said all that, if you ask me, true love should triumph all - whether it is true love for your potential partner or true love for your career. Although we wish that both can co-exist harmoniously, sometimes, sacrifice becomes

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The Young Lawyer

inevitable. If so, you will need to make an honest decision on which should take precedence.

Amicus Agony

Dear Amicus Agony,

I find the transition into practice very difficult as it is so different from the academic environment that I am used to. What can I do to make this transition easier?

Trainee in Transition

Dear Trainee in Transition,

Yes, you are right that the world of private practice is very different from the academic world. For starters, private practice is essentially a business environment, and revenue and profit margins weigh heavily. Hence, the performance

Young lawyers, the solutions to your problems are now just an e-mail away! If you are having difficulties coping with the pressures of practice, need career advice or would like some perspective on personal matters in the workplace, the Young Lawyers Committee’s Amicus Agony is here for you. E-mail your problems to [email protected].

The views expressed in “The Young Lawyer” and the “YLC’s Amicus Agony” column are the personal views and opinions of the author(s) in their individual capacity. They do not reflect the views and opinions of the Law Society of Singapore, the Young Lawyers Committee or the Singapore Law Gazette and are not sponsored or endorsed by them in any way. The views, opinions expressed and information contained do not amount to legal advice and the reader is solely responsible for any action taken in reliance of such view, opinion or information.

indicators would naturally differ significantly from excelling through exams at school. For instance, filling in time sheets and facing clients is something you would hardly do if you were not in private practice.

When I had just joined private practice like you, I found this book, Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer by Grover Cleveland quite helpful. It gives useful tips and insight into how law firm partners think and what they value. The personal anecdotes from various senior lawyers also make for interesting reading.

But above all, do speak to your senior colleagues with first-hand experience on how they transitioned into private practice. It does take some getting used to, but I am sure you will get there in no time!‎

Amicus Agony

Lifestyle


Alter Ego

Dear Rajan, Life was difficult for you when you were growing up. Very few knew what you were going through. You felt you were different from others and could not relate to them. The shyness, the lack of confidence, the incessant worrying about everything and the lack of strong relationships in your life made day to day living a chore. Your life did not make sense. You did not know what happiness was. You had no other option but to continue living as best as you knew how. I can tell you now that that was perseverance. I am glad that you did not give up. The world we live in is complex. You were no different from others; you just thought you were weird. You started to experience life at its full core earlier than many others. What you did not know was that others too had their struggles and life was not any easier for them. They just did not show it. Being more sensitive and emotive than most people was a strange thing to you, more so when you were told that you should not have such feelings. You were to discover later that it was these qualities that helped you relate better with women. You wanted to be a social worker instead of becoming a lawyer. You cared a lot about others and started doing volunteer work at 25 when volunteerism was not as popular as it is today. You dreamed of a caring society in Singapore and 20 years later, it has come true. You always believed in causes. The causes were much bigger than you and far ahead of their time. I am glad that you embarked on them as they gave you depth and meaning in life.

It was good that you became a lawyer, finally. You can now help and support people, which has always been important to you. Helping others is not always as altruistic and easy as it sounds, you will discover. You will have doubts about lawyering like many did and will do. There will always be days when you feel that the financial incentives do not compensate for the sacrifices of time and your personal life. The selling of coffee and cheese cakes will always appeal to you when you realise you make good cheese cakes one day. You will persevere in law practice as well. You will realise that life does not become easier. Your perception of marriage will be challenged. You will wonder whether long and happy marriages are possible. Your perceptions of life and your values will continue to be challenged. Do not take life too seriously. Do not think too much either. Stop worrying as only then can you live life to its full extent. Be truly positive as it will give you strength to live. Happiness will come, even if you do not keep looking for it. Finally, be kind to yourself. You deserve it. With love,Your older self

► Rajan Chettiar Rajan Chettiar LLC E-mail: [email protected]

Letter to My Younger Self

Lifestyle


A city lover and klutzy driver sets off on a seven-day drive through the south of Iceland. After some brushes with the island’s erratic weather and perilous wintry roads, he discovers there can be more to a remarkable vacation than food, booze, nightlife, and metropolitan hustles.

Fire, Ice, and Dancing Skies

A wave of unease hit as I pulled our car up alongside the last street lamp. I sat up, and squinted ahead. The road before us remained visible for the next 200 metres or so, faintly illuminated by a soft yellow glow from the lighting behind. Beyond that lay an expanse of darkness that seemed to creep closer the longer I stared. Not a single other car was in sight.

We had known all along that driving through Iceland’s Ring Road in winter was to be no mean feat. Even before we left home, our research on the Internet regaled us with stories of winds, snow, sleet, narrow bridges, dirt tracks, and unlit roads. What we were not expecting, however, was how quickly these were to be thrust upon us. We had barely picked up our rental car from Keflavík Airport, and were only mere kilometres out of Reykjavík, when the lit city roads gave way to the nothingness before us. I took a glance at the GPS to make sure we were headed in the right direction. According to Google Maps, we would spend the next hour skirting the northern edges of a national park before arriving at our hotel in the town of Laugarvatn. It eventually took us slightly more than 90 minutes, given the dismal pace at which I drove through the stifling darkness.

I have never been one for nature. Rolling landscapes hold my interest for two, at most three, days before I begin craving the buzz of urban living. To me, the ideal vacation meant sleeping in, eating well, and grooving to the electric vibes of cities like Tokyo, New York, and Taipei.

When my friends suggested a seven-day self-drive trip along southern Iceland, I naturally expressed reservations. And true enough, my first day or so in the arctic country was marked by an unsettling buyer’s regret as the deep cold, processed foods, and treacherous drives kicked in. Iceland sees an average of four daylight hours in December, which also meant having to wake up early so that we could cram as many destinations as possible into the limited daylight. The snoozer in me groaned silently at the prospect of this. We stayed our first night in Laugarvatn, and spent the next two days exploring a 300-kilometre route known as the Golden Circle – a collection of waterfalls and geothermal

geysers. The largest of these falls – Gulfoss – offers a spectacular view of Iceland’s Hvítá River plummeting over 30 metres into a rugged canyon. A dirt path takes visitors from the parking area to the edge of the canyon, where the roar and spray of the plunging waters make for dramatic photo and video opportunities. There, I silently thanked myself for splurging on a pair of gloves through which I could work the touchscreen controls of my iPhone. That saved me the agony of exposing my hands to the biting cold every time I wanted to take a photo (which was very often).

Sheets of white spray spiral from Gulfoss as the Hvítá River cascades into a canyon flanked by tall, grassy cliffs.

Iceland’s near-arctic climate produces large glaciers, which then melt in summer to become the island’s numerous rivers and waterfalls. By our third day, we had passed and visited four falls, each with its unique setting and geology. I had also gotten the hang of commandeering our hatchback in the vagaries of Icelandic weather, which freed up some attention for me to take in the coastlines and mountain scapes that rose and fell as we navigated the Ring Road. Because few tourists choose to self-drive, we were often the only car on the road for long stretches at a time. The solitude arising from that was mostly surreal, at times imposing. And for the first time in a long while, I found myself beginning to warm up to the great outdoors.

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Borealis – a resplendent light show that takes form when charged particles from the sun enter the earth’s atmosphere and collide with terrestrial gases. This phenomenon can happen all year round, but the longer winter nights make sightings more frequent.

Svartifoss, which translates literally into “black falls”, is framed by walls of dark lava columns. It is one of Iceland’s many waterfalls, and is accessible only by foot.

The Aurora Borealis seen leaping across clear skies from a farmhouse near the coastal town of Vik.

Snow and sleet give way abruptly to clear weather on a long southward drive towards the lower coast of Iceland.

Our third night was spent in a cosy farmhouse lodge beside a tiny knoll, and a short drive from the seaside town of Vik. Except for the glint of a lighthouse in the distance and headlights of the occasional passing car, nightfall blanketed the lodge and its surroundings in darkness.

Temperatures dipped below zero that evening, but freezing winter nights in Iceland were affairs greeted with much anticipation. “Cold nights usually mean clear skies,” a young lodge attendant told us. “So there’s a higher chance of seeing the northern lights tonight.”

Wrapped in our thickest winter gear (and, for me, an additional woollen bed runner from the lodge for extra insulation), we shuffled to an open field by the foot of the neighbouring hillock. There, we craned our necks upwards, and waited patiently for a staging of the spectacle that I have seen on so many travel websites, Instagram accounts, and postcards.

The lights first appeared to the naked eye as slightly incandescent wisps that could easily have been mistaken for thin clouds. Over the next 15 minutes, hints of luminous green caught on. By then, we were joined by a couple of Japanese visitors from our lodge, and an excited chatter began to build among them. Bit by bit, the flickering tufts melded and flourished into a celestial curtain of emerald green that streaked and fluttered across the sky. That night, we went to bed spellbound, knowing we had already seen the best that Iceland could offer.

Because of its geological extremities, Iceland has been dubbed the “Land of Fire and Ice”. This moniker is best epitomised by Vatnajökull – a massive ice cap covering almost eight per cent of the island’s surface. From afar, Vatnajökull takes the form of undulating white peaks that span the horizon. Beneath these caps lie glaciers and volcanoes, some active, some dormant.

Situated at the head of one of Vatnajökull’s many glaciers is a glacial lake known as the Jökulsárlón Glacial Lagoon. Usually depicted by images of lustrous blue icebergs, it is a crown jewel of Iceland’s tourism sector, and a staple on the itinerary of most first-time visitors. I recall, however, feeling slightly underwhelmed by what turned out to be a vapid

We jumped at this mention of the northern lights. Despite its capricious weather and limited sunlight, Iceland’s winter continues to draw holidaymakers with the allure of the Aurora

The sombre colours of the Jökulsárlón Glacial Lagoon make for a photo opportunity that seems eerily out of this world.

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body of water on which chunks of fragmented ice lay. When viewed from the narrow bridge that connected Jökulsárlón’s parking area to the main road, the icebergs resembled a ghostly, muted procession of dirty blue rocks.

With its gloomy skies and dramatic snowcapped peaks, Vatnajökull’s was used as a filming location for an alien world in the firm Interstellar.

for a noon tour, but got bumped off that and put onto a 3pm tour because of some confusion with the tour operator. That turned out to be a blessing in disguise. Near sundown, the last vestiges of daylight diffused through the translucent roof, creating cerulean sparkles that danced in the ice. I stood still for a moment, looked up, and it seemed almost as though the entire cave was gently pulsating to an inaudible rhythm.

Fortunately, some of that disappointment was offset by an ice-caving tour we signed up for. Ice caves form around November, when glacial rivers retreat and water freezes above them, creating hollow caverns underneath. The cave designated for our tour lay some distance off the main road, and was accessible only by a 20-minute drive in a jeep through tracks covered by ice and gravel. When we arrived, we were handed helmets and a chain of under-shoe spikes for traction. Our guide delivered a perfunctory explanation about the formation of ice caves before ushering us through a low but wide entrance, which, from the outside, did not appear particularly inspiring.

What unfolded beyond was an ethereal treat. A large river once flowed through, and the cave that formed was wide. Head room, however was limited by a crystalline roof of ice that stretched far into the distance. We originally signed up

The nondescript entrance to one of Vatnajökull’s many ice caves. The blue ice that forms the cave’s roof can be seen from a distance away.

The crystalline ceiling of an ice cave shimmers from catching the sunlight above. Underneath, the air is crisp and cool.

After spending two days in the Vatnajökull region, we drove further east to a harbour town called Höfn, where we returned the car and caught a bumpy flight back to Reykjavík on a propeller aircraft.

Iceland’s capital was a far cry from the other metropolises of the world that have stoked my love for city life. There were few skyscrapers, the ambient growling of traffic was

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missing, and whatever city lights were mostly soft glows emanating from homes through their ubiquitous ceiling-to-floor windows. Apart from a Christmas market that had sprung up downtown and the constant stream of tourists flocking to the Hallgrímskirkja – a towering Citadel that can be seen from most of Reykjavík – crowds were a rarity.

was strengthened by watching my companions grimace and reel from the fishy odours of these dishes.

I learned that the Icelandic diet did not change much since the Viking Age. Mainstays included lamb, seafood, and hotdogs (strangely). Fruits and greens were visibly missing from the lineup because the Arctic climate rendered their cultivation difficult. Icelandic restaurants have a penchant for slathering copious amounts of sauce and gravy on their food, which made them too salty and flavourful for my liking. Icelanders also swear by a cultured dairy product known as Skyr, which tasted to me like yoghurt unsuccessfully masquerading as ice cream. Even an attempt at KFC fried chicken ended in disaster after we were served some badly shrivelled and rubbery chicken parts. I was content with a prosaic sandwich and some black coffee for most of my meals.

Our final two days in Iceland were spent hopping around cafes, wandering around downtown Reykjavík by foot (it was easy to cover most ground, given how small Reykjavík is), and soaking in the warm, but touristy, waters of the Blue Lagoon Geothermal Spa.

Visible throughout Reykjavík, the Hallgrímskirkja – Iceland’s most iconic landmark, was designed to resemble the rocks, mountains, and glaciers of the country’s landscapes.

The Blue Lagoon Spa is a tourist hotspot, but its toasty waters are a welcome respite from Iceland’s chilly winters.

These last two days were also marked by a tinge of irony. I had expected the urbanophile in me to leap to life, given how we were exploring Iceland’s most metropolitan and populous area. Instead, I found myself missing the sights and splendours of the countryside that had unwittingly grown on me over the past week.

Perhaps a medley of ice, fire, and dancing lights can make for an unforgettable vacation after all. And perhaps a future visit to Iceland, this time to its northern coast, would make for another extraordinary adventure.

The subdued cityscape had its upsides. Parking was a breeze, and we seldom had to jostle with others for entry to places of interest or for seats in a restaurant.

Sadly, the latter did not come through as much of a perk. Icelandic cuisine, to me, was an oxymoronic expression. I resisted trying whale meat and cured shark, and my resolve

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Getting there

Most international flights to Iceland land at Keflavík International Airport in the capital of Reykjavík. However, there are no direct flights from Singapore to Reykjavík. We first flew into London, and connected to a British Airways flight from London’s Heathrow Airport to Keflavík. Iceland Air and a couple of other low-cost carriers also service the London-Reykjavík route. In addition, Iceland Air flies into Reykjavík from a number of other major European cities.

Getting around and driving

There is an abundance of car rental companies in Reykjavík. If, like us, you intend to drive out of, but not back into, Reykjavík, opt for a car rental company that allows you to drop the car off in another town. This usually comes with an additional charge. Some travel blogs and websites will recommend you rent a four-wheel drive, but we did not. A four-wheel drive is not necessary if you drive carefully, and unless you intend to venture off the roads and onto ice and mountain paths. Most sights are connected to proper roads, so you do not need to drive on ice and mountain paths to get to them.

If you are driving long distances, do prior research on tips for controlling your vehicle in snow and ice, including how to identify winter driving hazards and the correct reactions to them (we skidded on black ice once, and would like to think that our research saved our lives).

Download a mobile app known as “112 Iceland App”. It registers your location with the Icelandic emergency services so that they know where to look for you in the event of an emergency. The app also allows you to call for help with the press of a button.

Eagle Air – a small, Icelandic airline – offers flights back into Reykjavík from a number of other towns, including Höfn. The flights are run on small, propeller aircrafts, so book early where possible to secure a seat that matches your itinerary.

There is no metro or train service in Reykjavík. Driving is the best way to get around, although downtown Reykjavík is small enough to be explored by foot.

Weather

Temperatures hover around freezing, but rarely dip below -10 degrees Celsius. Strong winds, which are common, can intensify the cold, so be sure to pack windproof

clothing. Weather conditions can change extremely quickly, especially if you are driving long distances. You can be passing through a thick mist for 15 minutes, only to emerge suddenly into clear skies and golden sunshine. Expect to experience an array of snow, rain, sleet, and sun within the span of an hour. Waterproof shoes and outerwear are highly recommended.

Invest in a decent pair of waterproof hiking boots, preferably one with insulating properties. If you intend to hike across snow and ice, or if you want to go ice-caving or ride on a snow mobile, these boots are essential.

Accommodation

Do not expect posh hotels in the countryside. Your options may be limited only to hostels, guest houses and lodges. Look for these using an online hotel amalgamator such as Agoda. These accommodation options are generally well run and clean. Most also offer non-sharing and ensuite-bathroom options at a higher price, so opt for these if you prefer privacy.

Aurora spotting

Be patient. Not every night is a clear night. In fact, the Icelandic climate is heavily influenced by the fact that Iceland is an island. Cloud cover can be common.

The Iceland Met Office runs an aurora forecast service on its website <http://en.vedur.is/weather/forecasts/aurora/>, which predicts the extent of solar activity and cloud cover at a particular place and time. Seeing the northern lights is not a passive activity; it may require some active “hunting”, which means travelling to a spot with little or no cloud cover.

Auroras are not necessarily striking green. They can appear as faint, grey streaks that are barely visible to the human eye. If you suspect you are seeing one, point a camera (preferably a DSLR on a tripod set to a slow shutter speed) towards the sky and take a shot. The northern lights might sometimes turn up on camera while not being visible to the naked eye.

► Fong Wei Li KEL LLC E-mail: [email protected]

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Notices


Information on Wills

Name of Deceased (Sex)NRIC

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Person Reference

Yusuke Kitayama (M)S2193933A2 April 2017

Blk 405 Jurong West Street 42#10-625Singapore 640405

ComLaw LLC6538 1221

GC.2017.214402

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Summit Law Corporation6597 8362

2017041292/11

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Aptus Law Corporation6732 7816

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Wang Tar Meng @ Wai Tak Kim (M)S1088282F27 February 2017

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David Ong & Partners6223 9009

2017053700

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Cornerstone Law LLP6499 0649

201700094.GK

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2017041314/11

Paul Gamble (M)S7263623F4 May 2017

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Drew & Napier LLC 6531 2447

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Tay Chuan Yit (M)S0185066J12 April 2017

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Blk 229 Yishun Street 21#10-560Singapore 760229

Ramdas & Wong6324 9181

KAY/ym/IL.ESTATE.661

Heng Hong Eng (F)S6901469J28 June 2016

Blk 39 Jalan Rumah Tinggi#11-268Singapore 151039

Tan Leroy & Associates6429 0788

LST/Q/7611/2017

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