Singapore International Arbitration Centre caseload crossed the 1000 mark in October 2020: Meanwhile Australian lawyers still unable to compete despite Anglosphere privileges

 by Ganesh Sahathevan

Singapore's Law and Home Affairs Minister K. Shanmugam SC announced early this month that The Singapore International Arbitration Centre (SIAC) registered 1,005 cases for the first 10 months of this year, more than double the annual caseload of 400 in each of the last few years. In doing so it breached the 1,000 case threshold. 

Australia's legal fraternity on the other hand continues to struggle to attract market share, despite the advantage of providing common law expertise in this part of the Commonwealth at least a century before Singapore.

Additionally the advantage of being part of the Anglosphere, which  once meant  that “proximity to Asia and time zone advantages” was a strong selling point, seems to have been lost. 

How and why Australian lawyers lost their capacity to compete in this region is a matter that needs to be addressed. The legal fraternity is large and it is a resource that can be harnessed so that it makes a better contribution to the economy.

END 

TO BE READ WITH

Singapore arbitration centre opens New York office, achieves record caseload

K.C. Vijayan

Senior Law Correspondent

• PUBLISHED
  DEC 11, 2020, 9:43 PM SGT

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SINGAPORE - The Singapore International Arbitration Centre (SIAC) opened a representative office for the Americas in New York last week, with a record-breaking announcement that its 2020 caseload had crossed the 1,000 mark.

It registered 1,005 cases for the first 10 months of this year, which is more than double the annual caseload of 400 in each of the last few years.

The new office, its fifth outside Singapore, will also further bolster its reputation as an international arbitration institution that will have a global reach, lawyers told The Straits Times on Friday (Dec 11 ).




Law and Home Affairs Minister K. Shanmugam said as much at the virtual launch of the New York office when he noted that one of the biggest users of the SIAC are parties from the United States (US).

The largest number of cases in 2018 came from US parties, he said, pointing out that they have consistently been one of SIAC's top 10 foreign users in the last five years.

"It has been SIAC's intention for some time now to open an office in the US. There is significant demand, as seen from the caseload breakdown since 2014. US direct investments in the Asia-Pacific exceed US$800 billion (S$1 billion) and that is expected to grow further."
He also said that "in this part of the world, arbitration has become an extremely important means of resolving disputes which may arise from investments.

"If you look around Asia, I think most people would agree SIAC is considered the top arbitral institution."

SIAC's four offices in Asia are located in India (which has two offices), South Korea and China.

The SIAC, viewed as a crown jewel in Singapore's legal landscape, is led by Senior Counsel Davinder Singh, who is chairman of the SIAC board of directors, and Mr Gary Born, president of the SIAC Court of Arbitration.

Blacklisted iFlytek announced a collaboration with ANZ & Delloites " to jointly provide intelligent service robots for ANZ" : Likely privacy and security issues for ANZ and other bank customers

 by Ganesh Sahathevan

The photo below and the  Chinese  and  Google translated text is located at link https://cn.meetkol.com/?/article/441

科大讯飞代表团和澳新银行 Deputy CEO Alexis George 女士合影

IFLYTEK delegation and Ms Alexis George, CEO of ANZ bank

In the financial field, the iFLYTEK delegation and ANZ Bank, one of Australia's four largest banks, held in-depth discussions on their cooperation. Xie Fei, General Manager of iFLYTEK Intelligent Finance Division, said that in the future, we can combine the characteristics of both parties, join hands with Deloitte Technology and NewZealand partner, Rocos, to jointly provide intelligent service robots for ANZ Bank. Many venture capital firms also expressed their great prospect about the development of artificial intelligence industry and the bright future of Chinese market, and hope to further cooperate with iFLYTEK to enter the Chinese market and promote the development of artificial intelligence industry in China and Australia.

iFlytek has been blacklisted by the US Government for its part in assisting in the persecution of Uighur by the Chinese Government.

ANZ has not informed the market about its collaboration with iFlytek, in possible contravention of ASX continuous disclosure rules. 

Additionally there are the privacy and security issues that ANZ depositors and other customers might be exposed to by the deployment of the iFlytek intelligent service robots. These issues are likely to be industry wide, given the high degree of integration in the Australian banking system. ANZ owes the market and the wider public an explanation.

END 

Zakhir Mohamed aka Big Dog has passed away, but his defence of Petronas & Petronas RAPID remains to be dealt with

 by Ganesh Sahathevan 

Petra News director Zakhir Mohamed leaves behind a wife and daughter. – SAIRIEN NAFIS/The Vibes pic, December 27, 2020

Vinod Shekar's  TheVibes.com  has announced: 

Petra Group has lost one of its own with the passing of Petra News director Zakhir Mohamed this morning. He was 53.

Petra News executive director Datuk Ahirudin Attan said Zakhir collapsed at home around 9am, and his wife and daughter tried to resuscitate him with a defibrillator, but to no avail.

Fondly known as Big Dog, Zakhir, who was an accountant by training, was a prominent blogger and political observer.

Regarding Zakhir as family, Petra Group chairman and CEO Datuk Dr Vinod Sekhar expressed his shock and sadness over his passing.

Readers may recall Big Dog's attacks against me for my story on Pertonas Rapid, and the deal between Petronas and Saudi Aramco 

Economic saboteur claim by blogger not proven
by TheMole




Written by TheMole


KUALA LUMPUR – March 24, 2017: Blogger Zakhir Mohamed is firm in saying that a Malaysian blogger based in Australia has failed to prove his allegations about the Saudi Aramco-Petronas cooperation.

In his blog post, Zakhir, who writes as Big Dog, points out that Ganesh Sahathevan has failed to prove that Petronas chief executive officer Datuk Wan Zulkiflee Wan Ariffin was in fact the saboteur, an issue referred to by Prime Minister Datuk Seri Najib Razak on Sunday.

Big Dog was responding to Ganesh’s reaction to his earlier post in a story by The Mole yesterday.

Ganesh had blogged that Najib and Wan Zulkiflee were not on good terms.

The former journalist with The Sun newspaper here maintained that what he wrote about Wan Zulkiflee was based on official news reports and press releases from Saudi Aramco but no details were given to back this claim.

According to Big Dog, Ganesh had also failed to provide evidence that money from the Employees’ Provident Fund would be used to bail out Petronas’ Refinery and Petrochemical Development project in Pengerang should Saudi Aramco pull out of the deal.

“Ganesh might have a problem (of understanding Big Dog’s previous post) due to his weakness in understanding the national language.

“But, the article in BigDogDotCom which he had responded to, is actually questioning his accusation, that Datuk Wan Zukiflee is the one that had been described as the traitor of the state.

“In fact, Ganesh in his blog had manipulated the news reports (on Saudi Aramco pulling out) to back his write up, when the truth is he is an example (of the economic saboteur) described by the prime minister.”

Big Dog also appeared to take offence as being labelled an Umno blogger by Ganesh.

“This is clearly a lie, there is no evidence that Zakhir is a blogger representing or appointed by Umno,” he wrote.

(Note: Zakhir is the chief executive officer of The Mole.)




I responded not only to The Mole (see above), but also in a separate article on my Sahathevan Blog. The issues with regards Aramco, Petronas, and Pertonas RAPID remain outstanding.




PETRONAS CEO Wan Zulkiflee May Be Sacked, And An EPF Bail Out Of RAPID Likely The Implications Of PM Najib's Claims Of Economic Sabotage



By Ganesh Sahathevan





While PM Najib provided no evidence of who exactly "almost sabotaged" the Aramco-Petronas JV,we do know that Petronas CEO and President Datuk Wan Zulkiflee Wan Ariffin himself expressed concerns about the JV just two days before signing, and he did so publicly ,via a press conference that he himself called.The Star reported these matters:

Wan Zulkiflee expressed surprise at the report of Saudi Aramco pulling out of Rapid when it had not gone into any agreement with the entity from Saudi Arabia.
“How can there be a situation of a party pulling out of something when the party was not part of it in the first place?” he said referring to reports of Saudi Aramco supposedly pulling out of Rapid.
“From day one, we have stated that we are able to fully fund Rapid. We are and will not be dependent on anyone for this project. We are close to 60% complete, costs are within projections and the refinery will be ready by 2019 followed by the petrochemical portion by 2020.”


The above was preceded by an earlier report in The Star,dated 25 February 2017 in which Petronas seemed to be warning off PM Najib and his government.Headlined "Let Petronas Do Its Job", the story included the following statements:


There has been a fair bit of speculation surrounding Aramco inking a deal with Petronas in relation to the latter’s Refinery and Petrochemical Integrated Development or Rapid project in Pengerang, Johor. The latest is that both parties will sign an agreement on Monday during King Salman’s visit to Malaysia.
Petronas has not said anything about any potential deal with Aramco, except that it is always in talks with potential partners, but that any deal inked would have to be on Petronas’ terms. In other words, beneficial to Petronas and not lopsided, as it should be.
Petronas’ president and CEO Datuk Wan Zulkiflee Wan Ariffin recently told editors in Kuala Lumpur that Petronas never takes on projects with the view that it has to depend on investors for funding to complete the project.
That said, partnering Aramco should have its benefits, considering it is not only the company with the vastest oil reserves, but also the most valuable company in the world today. The deal just has to be struck on equally beneficial terms.
.....the O&G resources of the country belong to all Malaysians, and they have to be handled with care.


It does appear then that it was the Petronas CEO himself who was trying to discourage Aramco, and he was not afraid of doing so publicly.


Then there is the matter of the EPF. Najib is reported to have said:


“Some unpatriotic people had spread claims that the Employees Provident Fund (EPF) was almost bankrupt and that the government was unable to pay the salaries of its civil servants.
“The Saudi Arabian government had received this wrong information about our country and thus, were quite doubtful about investing in Malaysia.
“We had to meet them and correct the facts that Malaysia is among the best countries in the world (to invest in). When they were convinced, they finally agreed to invest with us” .
However, Aramco sells its crude to Petronas, and it would,as any oil company would, be interested only in the viability of its client. If otherwise, Shell, ExxonMobil and others would not be investing in say Nigeria. Put in another way, oil companies have long ago learnt to limit their exposure to the oil assets that they deal with, managing to ring-fence these from the problems of the countries they deal with.
Therefore the matter of EPF would be of interest only if the EPF is expected to bail-out the RAPID project, for a bail-out is what it would be.If not, the EPF would already be an investor in the project. A bail out should not be unexpected, given that the JV agreement with Aramco seems not to involve any injection of cash.
END













Saudi Arabia's King Salman and Malaysia's Prime Minister Najib Razak attend a Memorandum of Understanding signing ceremony in Putrajaya, Malaysia, Feb 27, 2017. Photo: Saudi Royal Court via Reuters







Heartless individuals almost cost Malaysia RM31b Saudi investment: Najib


PUBLISHED: 3:15 PM, MARCH 18, 2017


PUTRAJAYA — False negative perceptions on Malaysia almost cost the country a RM31 billion (S$9.8 billion) investment from Saudi Arabia.
Prime Minister Najib Razak on Saturday (March 18) disclosed that Saudi Arabia was initially reluctant to invest in Malaysia due to the false perception that the country is deemed a high political risk.
“Some unpatriotic people had spread claims that the Employees Provident Fund (EPF) was almost bankrupt and that the government was unable to pay the salaries of its civil servants.
“The Saudi Arabian government had received this wrong information about our country and thus, were quite doubtful about investing in Malaysia.
“We had to meet them and correct the facts that Malaysia is among the best countries in the world (to invest in). When they were convinced, they finally agreed to invest with us,” Mr Najib said at the Ekspresi Negaraku launch at Dataran Putrajaya, here on Saturday.
The Ekspresi Negaraku event serves as the first platform to mobilise the Negaraku initiative nationwide to spur Malaysians to show their spirit of patriotism and love for the country.
Meanwhile, speaking on the Saudi investment, Mr Najib said it would open more job opportunities for the younger generation.
He said Malaysia almost lost out on the investment due to the acts of certain unscrupulous individuals.
“These individuals are heartless people who were politically motivated to topple Malaysia. In the end, it is the rakyat who end up as the victims,” he said.
Mr Najib also related this to a statement by former prime minister Dr Mahathir Mohamad, who had claimed that Malaysia is one of the 10 most corrupted countries in the world.
“The corruption index showed that Malaysia is at 55th place out of 160 countries. We are not as bad as what some have claimed.
“We can accept criticism but not attempts to topple the government. We believe there is still room for improvement for Malaysia,” he said.
Saudi Aramco recently agreed to invest RM31 billion for a 50 per cent stake in Petroliam Nasional Bhd’s Refinery and Petrochemical Integrated Development (Rapid) project.
Under the agreement, Saudi Aramco will be supplying up to 70 per cent of the crude feedstock requirements of the refinery. Petronas, on the other hand, will supply natural gas, power and other utilities.
Both parties will hold equal ownership in selected ventures and assets of the Rapid project within Pengerang Integrated Complex.
The share purchase agreement was signed on Feb 28 during a state visit by Saudi ruler King Salman Abdulaziz Al-Saud. THE NEW STRAITS TIMES

AirAsia & AirAsiaX liquidity problems and UK SFO issues can be resolved by Securities Commission Malaysia appointing external administrators to both companies

 by Ganesh Sahathevan 

Air Asia X's restructuring is becoming farcical. Malaysia's courts are now being asked to approve a deal which will allow exisiting managers and shareholders to remain in control, while ignoring AAX's UK bribery issues.

Additionally major creditors especially Airbus will be required to incur billions in losses, despite the fact that AAX and AA's fleet comprise only Airbus planes. 

The solution to this uniquely Malaysian conundrum may lie in Section 16 of the SECURITIES COMMISSION MALAYSIA ACT 1993, which provides:

Given the extremely broad powers conferred the SC by Section 16, the solution is simple: The SC needs to obtain orders to appoint administrators to AAX ,and Air Asia which seems to have similar problems. Current management must all be removed, so that the SC appointed administrators can oversee an orderly restructuring of all liabilities ,especially the massive and complex debt to Airbus. 

This writer understands and appreciates that administrators may not always remain impartial, but that is an issue which can be easily addressed by putting in place arrangements that would ensure the administrators are properly supervised, and if required punished. 

END 

SEE ALSO 

Wednesday, October 28, 2020

Sabah Development Bank RM 300 M loan to AirAsia may be in breach of AML/CTF laws: SDB ignored UK SFO findings about Air Asia in the Rolls Royce, Airbus corruption decisions

 by Ganesh Sahathevan 

Sabah MACC director S Karunanithy declined to elaborate on the case, saying ‘we cannot reveal much for now’.

FMT and others have reported that Sabah Development Bank Sdn Bhd (SDB) is being investigated by the MACC with regards a RM 300 Million loan to AirAsia.

Quite apart from the MACC issues, SDB seems to have ignored the fact that AirAsia and AirAsia X , and in particular its senior management led by Tony Tajuddin Fernandes and Kamaruddin Mehranun, have been the subject of adverse findings by the UK Serious Fraud Office, which have subsequently been incorporated into the findings of fact in UK court decisions in favour of the UK SFO in the matters of Rolls Royce and Airbus (see reports below).

SDB may have as a result breached Malaysian anti-money laundering and money laundering rules. That SDB was unaware of the UK SFO findings is inconceivable; these are matters that were reported widely , worldwide. 

 TO BE READ WITH 

Thursday, April 23, 2020

Lke Airbus, Rolls Royce also may be prevented from dealing with Tony "Tajudin" Fernandes, AA and AAX

by Ganesh Sahathevan





How a CEO of any company might find himself with nothing to do even at these times is beyond this writer.T
he case of Tony Fernandes reminds this writer ofTajuddin Ramli, formerly  of MAS.The parallels are frightening, 
and hence the nameTony "Tajuddin" Fernandes.



Apart from the Airbus admission (see below), Rolls Royce who supply AA and AAX jet engines and related services may also be prevented from dealing with AA and AAX given Rolls Royce's admissions to the SFO. Readers may recall that when the Rolls Royce/SFO story broke AA
responded with a press statement that implicated the entire AA and AAX board:

AirAsia Group head of communications Audrey Progastama Petriny, in a statement to Malaysiakini, said AirAsia and AirAsia X board of directors and management were kept informed at all times of the transactions relating to the jet.

TO BE READ WITH

Tuesday, April 21, 2020

Airbus will not, cannot deal with AirAsia, AirAsiaX-AA, AAX fleet is entirely Airbus, so how much are AA and AAX worth?

by Ganesh Sahathevan

                                               AIRASIA SUPERSIZES ITS FLEET TO LOWER FARES
                                                         This was the case just under a year ago


Reuters reported: 

Airbus (AIR.PA) has put six jets made for one of its largest customers up for sale after giving up on Malaysia’s AirAsia (AIRA.KL) taking delivery of them, sources familiar with the matter told Reuters.

Airbus's sale comes after its admission before UK's Criminal Court that it bribed AA officials,which Tony Fernandes and Mehranun admitted was a reference to them. That admission effectively prevents Airbus from future dealings with AA and AAX: 

Airbus admission prevents further business with Airasia: BDO Governance Advisory findings meaningless. given Airbus admission before the UK Crown Court,and cannot be a substitute for MACC, police, SC investigation

AA and AAX's fleet is entirely Airbus. AA and AAX's growth is impeded, and operational issues, such as maintenance and parts, are likely. 

Add to that AA and AAX's financial problems, and what really are these companies worth? Are they worth anything at all?

END 

Monday, March 23, 2020

Airbus might be family but AML/CTF rules mean Airbus cannot deal with Tony Fernandes (and now the AA,AAX board members have implicated themselves)

by Ganesh Sahathevan


This is touching

However, the above and the BDO Governance Advisory finding changes nothing. Additionally, AA and AAX directors may have now implicated themselves.
The real issue here is:How are AA and AAX going to maintain, build and finance their fleets that are comprised entirely of Airbus planes.
END

To Be Read With

Airbus admission prevents further business with Airasia: BDO Governance Advisory findings meaningless. given Airbus admission before the UK Crown Court,and cannot be a substitute for MACC, police, SC investigation

AND 

Airbus-AirAsia admissions made under UK Bribery Act 2010,which gives UK Govt extraterritorial jurisdiction: Tony Fernandes said F1 was very much part of AA, AAX brand building, Fernandes admission may subject AA,AAX to UK Bribery Act jurisdiction

by Ganesh Sahathevan





Tony Fernandes, Catreham F1 and AirAisa captured in 
a single image.


Reacting to the Airbus-Airasia bribery admission Tony Fernandes said:

We built an amazing brand and F1 was a big part of it.

Reuters quoting a statement issued by Fernandes and Kamaduddin Mehranun reported:

“Caterham F1, the company alleged to have been sponsored improperly by Airbus, was at the relevant time a Formula 1 racing team that had gone round the globe promoting amongst others AirAsia, AirAsia X, GE and Airbus,” Fernandes and Kamarudin said in the statement.

The above statements may have brought AirAsia and AirAsiaX within UK Bribery Act jurisdiction, which premises jurisdiction based on business activity , not merely incorporation and business presence.

That the statements have been made by the senior executive directors of the companies involved makes the connection that much stronger. For a simple to read explanation of how the UK Bribery Act 2001 works, see article below.

END 

UK flexes extraterritorial reach with Airbus settlement

• Emmanuel Breen
• February 10, 2020
• 7:38 am

When passed in 2010, the UK Bribery Act was dubbed the “most stringent anti-corruption legislation in the world.” This was due in part to Section 7, which created an unprecedented form of vicarious liability at the time, with a potentially strong extraterritorial reach. Since then compliance professionals have wondered what implications this could have. And then came Airbus.

Section 7 introduces “failure of commercial organizations to prevent bribery” as an offense. In terms of jurisdiction, the text of Section 7 says it applies to “relevant commercial organizations,” a notion that encompasses bodies or partnerships which carry “a business, or part of a business, in any part of the United Kingdom” regardless of where they were incorporated or formed.

The 2011 UKBA Guidance gave a hint: it seemed to take a rather “business friendly” approach by suggesting that “having a UK subsidiary will not, in itself, mean that a parent company is carrying on a business in the UK, since a subsidiary may act independently of its parent or other group companies.” The Ministry of Justice however emphasized in this guidance that courts would be the final arbiter.

On January 31, 2020, Airbus SE announced that it would pay €3.6 billion ($4 billion) to settle global bribery and trade charges with French, U.S., and UK authorities. In the UK, Airbus SE committed to pay €991 million ($1.09 billion) to the Serious Fraud Office. This is pursuant to a deferred prosecution agreement, which, as required by the Crime and Courts Act of 2013, has been duly approved by a Crown Court judgment.

The UK court decision is good place to look for a first judicial interpretation on the extraterritorial reach of Section 7 of the UKBA.

Airbus SE is registered in the Netherlands, has its operational headquarters in France, and admitted to facts that occurred outside of the UK territory.

I read the judgment as adopting a strong pro-extraterritorial stance.

The judgment notes that Airbus SE, the only entity subject to prosecution as the Group’s parent company, had “continuously carried on part of their business in the United Kingdom,” based on the fact that it had two subsidiaries in the UK: Airbus Operations Limited (through Airbus SAS, a French company) and Airbus Military UK Limited (through Airbus Defence and Space SA, a Spanish company). No reference is made either to the percentage of the Group’s turnover in the UK, or to a potential improper behavior of the UK subsidiaries.

The document further highlights that “Airbus Operations Limited and Airbus Military UK Ltd, through Airbus SAS and Airbus Defense and Space SA are subject to the strategic and operational management of Airbus SE.”

However, no line of legal reasoning aims at showing that the powers of Airbus SE over the management of its UK subsidiaries could be linked to control deficiencies in the UK.

Other facts that could hypothetically generate a “UK nexus,” such as a UK potential inadvertent financing of corrupt transactions by UK Export Finance (UKEF) or the potential involvement of UK nationals are lightly touched upon in the judgment, but not weaved into a legal discussion on extraterritoriality.

The judgment notes that UK jurisdiction is “common ground” in the case, suggesting that the judge might be deferring, at least to a certain extent, to the decision of Airbus SE to agree to UK jurisdiction.

Finally, let’s examine the section of the judgment that credits Airbus for cooperating “to the fullest extent possible” in the UK investigation.

Presiding judge Dame Victoria Sharp said, “It is to be noted that through its engagement with the SFO related in the first instance to matters concerning UKEF, Airbus also accepted that the Bribery Act 2010 provided the SFO with extended extraterritorial powers and with a potential interest in facts post 2011. This was an unprecedented step for a Dutch and French domiciled company to take, in respect of the reporting of conduct which had taken place almost exclusively overseas.”

Let’s observe that there might be a bit of a contradiction above: if a legal challenge by a foreign defendant over UK jurisdiction amounts to a lack of cooperation and may end up harming the defendant’s cause, this might put the defendant under a certain pressure not to trigger a judicial battle over jurisdiction. In these conditions, would it really be appropriate for the judge to defer to the fact that the defendant is not challenging UK jurisdiction?

Only time will tell, with further cases and judicial decisions, whether there are limits to the extraterritorial reach of Section 7 of the UKBA or whether the simple fact of having a subsidiary in the UK is enough to legally subject any global company to UK investigations and prosecution.

Emmanuel Breen

Emmanuel Breen is an Associate Professor at Sorbonne University and co-head of the “Compliance Officer” Diploma at Panthéon-Assas University. He is a Senior Counsel at Laurent Cohen-Tanugi Avocats in Paris and advises on complex transnational regulatory and compliance matters. He has written the first book in the French language on the FCPA.