Explanatory Brief: Securities and Futures (Amendment) Bill 2008 and Financial Advisers (Amendment) Bill 2008
1 The Minister for Trade and Industry and Deputy Chairman of the Monetary Authority of Singapore (MAS) today moved two Bills for first reading in Parliament, namely:
- The Securities and Futures (Amendment) Bill 2008 (“SF(A) Bill”); and
- The Financial Advisers (Amendment) Bill 2008 (“FA(A) Bill”).
2 MAS has conducted public consultations on the policy reforms and the draft Amendment Bills. Comments received have been incorporated, where appropriate, into the Amendment Bills. MAS' responses to the public consultations are published on its website at .
KEY AMENDMENTS IN THE SF(A) BILL
3 Key amendments have been made in five broad areas:
(i) Capital markets licensing and business conduct;
(ii) Market misconduct enforcement;
(iii) Notification of changes in shareholdings of directors and substantial shareholders and offers of investments;
(iv) Markets and clearing facilities; and
(v) Regulatory flexibility to deal with market innovation.
(I) Capital Markets Licensing and Business Conduct
(a) Perpetual Licensing Regime for Corporate Licence Holders (Section 84)
4 Capital markets services licence holders are required to renew their licences every three years. This will no longer be necessary with the introduction of the perpetual licensing regime. The perpetual licensing regime will reduce administrative burden to the industry. It will also bring capital markets services licence holders in line with other MAS-regulated financial institutions already under a perpetual licensing regime.
(b) Representative Notification Framework (New Division 2 of Part IV)
5 The amendments will introduce a new Representative Notification Framework that will apply to representatives of financial institutions . The Representative Notification Framework will replace the current system where only representatives of financial institutions licensed under the SFA are required to be licensed, while representatives of exempt financial institutions are not. Under the new framework, there will be consistent regulatory treatment for all such representatives.
6 The Representative Notification Framework will place the onus on principals of representatives to certify to MAS that they have checked that their proposed representatives are fit and proper. Principals will be required to notify MAS of their intentions to employ proposed representatives to carry out regulated activities on their behalf.
7 In conjunction with the introduction of the Representative Notification Framework, MAS will maintain a public register that will list the representatives and their relevant details. These will include the representative’s employment history, the types of regulated activities the representative is allowed to conduct, the financial institution the representative is acting for, and any formal regulatory action taken by MAS against the representative. The public register will be one of the avenues for principals to conduct probity checks on potential representatives. It will also enable consumers to verify the status of and obtain information on the individuals they deal with.
(c) Provisional Representative Scheme (New Division 2 of Part IV)
8 In response to queries from the industry, the amendments will introduce a provisional representative scheme. This is to accommodate the relocation to Singapore of experienced individuals currently or previously regulated for comparable types of regulated activities in overseas jurisdictions with regulatory regimes comparable to Singapore’s. A grace period to satisfy the examination requirements under the SFA will be given. This will allow the provisional representative to conduct SFA regulated activities without first having to satisfy the examination requirements, subject to certain conditions. Should the provisional representative fail to satisfy the examination requirements within the grace period, they will have to immediately cease their activities under the SFA. The Representative Notification Framework will also apply to the provisional representative scheme.
(d) Appointment of Directors by Capital Markets Services Licence Holders (Section 96)
9 Capital markets services licence holders are required under the SFA to seek MAS’ prior approval for the appointment of chief executive officers or directors. Under the current provision, there is ambiguity as to whether certain appointments, for example, non-executive non-resident directors, require MAS’ approval. The amendments will clarify that capital markets services licence holders will be required to obtain MAS’ approval for the appointment of chief executive officers and directors, regardless of the individual’s country of residence or the nature of the director’s role. However, capital markets services licence holders that operate in Singapore as branch offices of foreign companies will only be required to seek MAS’ approval for appointment of directors who are resident in Singapore and/or responsible for the operations of the Singapore branch.
10 For licence holders, MAS’ approval will be required for a change in a director’s appointment from a non-executive to an executive director. In the case of branch offices, such approval will only be required for directors who are resident in Singapore and/or responsible for the Singapore operations. In addition, the amendments will provide MAS with the power to impose a condition requiring licence holders to notify MAS of changes to any specified attribute of its directors, for example, any change in residence, or the nature of appointment of a director.
(e) Requirement to Seek Approval for Take-over of Licence Holders and MAS’ Power of Objection to Control of Licence Holders (Sections 97A and 97B)
11 The amendments will introduce a requirement for MAS’ prior approval where a potential owner or controller wishes to enter into an arrangement which would result in him obtaining effective control of a capital markets services licence holder. This requirement will apply to potential owners and controllers in Singapore or elsewhere. MAS will, under certain circumstances, be able to require an existing or potential owner/controller to relinquish effective control of a licence holder (for example, by reducing shareholdings in the licence holder), or stop being a party to the arrangement to obtain effective control. Possible circumstances for the exercise of this power will be where the owner or controller is not, or ceases to be, a fit and proper person.
(f) Representatives to Only Act for One Principal (Section 99J)
12 It is MAS’ current policy position that representatives should only act for one financial institution. The amendments will formalise this policy. The exceptions to this restriction will be where: (i) appointed representatives act for financial institutions that are related corporations; or (ii) MAS has given approval. This restriction will mitigate conflicts that may arise if a representative is remunerated differently by different financial institutions. Such a situation might result in the representative acting in his own interests and compromising his clients’ interests. This restriction will also enhance transparency to investors regarding the status of their representatives, the principals they represent and where responsibility for complaints and redress lie.
(g) Prohibition Order Regime (Sections 101A to 101D)
13 Currently, prohibition orders under the SFA can only be issued to capital markets services licence holders and their representatives to prohibit them from conducting SFA regulated activities. The amendments will extend the prohibition order regime to financial institutions exempt from licensing under the SFA and their representatives. This will level the playing field between licensed and exempt financial institutions. The amendments will also provide MAS with the power to issue prohibition orders to previously licensed financial institutions and representatives, as well as persons convicted of conducting SFA-regulated activities without being regulated by MAS .
14 There will also be an additional ground upon which prohibition orders can be issued under this new extended prohibition order regime. The amendments will enable MAS to issue prohibition orders to persons who have been ordered by the court to pay a civil penalty, or who have entered into a settlement agreement with MAS to pay a civil penalty for market misconduct, under Part XII of the SFA. At the same time, MAS will be able to prohibit relevant persons from taking part in the management of, or becoming a director or substantial shareholder of, a licensed or exempt financial institution. This will enable MAS to prohibit persons it has concerns about from taking up positions in a financial institution which can influence or direct the way in which the business of the financial institution is conducted.
(h) Confidentiality of Inspection and Investigation Reports (Sections 150A and 152A)
15 The amendments will give legal certainty to MAS’ policy that persons inspected or investigated by MAS are not allowed to disclose the contents of the inspection or investigation report to anyone other than an officer or auditor of the inspected or investigated entity.
(i) Regulatory Assistance to Foreign Regulators (Sections 150B to 150C)
16 In recent years, there has been an increase in the number of requests from foreign regulators asking to inspect licence holders in Singapore whose parent entities they supervise. MAS has no explicit power under the SFA to require foreign regulators to seek MAS’ approval, nor the power to accede to or reject such requests. Currently, these foreign regulators are only required to seek the consent of the licence holder they intended to inspect.
17 The amendments will clarify that certain foreign regulators will be required to seek MAS’ approval to inspect capital markets services licence holders and exempt financial institutions in respect of their conduct of regulated activities under the SFA. MAS will be able to impose conditions and safeguards on the conduct of such inspections, such as the requirement to protect the confidentiality of information.
(II) Market Misconduct Enforcement
(a) Transfer of Evidence between the Commercial Affairs Department of the Singapore Police Force (“CAD”) and MAS (Sections 168A to 168C)
18 Market misconduct contraventions in the SFA can attract both civil and criminal liability. The CAD investigates when criminal proceedings are contemplated, with the prosecution conducted by the Public Prosecutor. For cases of civil penalty action, MAS investigates and initiates court proceedings.
19 At the onset of investigations, it is not always clear what the extent of the contravention will be. Further investigations could reveal information which may result in a case being switched from its original criminal track to a civil proceeding track or vice versa. When cases switch tracks, the SFA has no express provisions allowing for the transfer of evidence between CAD and MAS. The amendments will enable the transfer of information from (i) MAS to CAD for any investigation or criminal proceedings under Part XII of the SFA; and (ii) CAD to MAS for the purpose of investigations or civil penalty proceedings under Part XII of the SFA.
20 The amendments will expressly provide that such evidence will be admissible in court. Admissibility of such evidence will be subject to existing evidential and procedural safeguards under the law, and the safeguard against self-incrimination under Section 153 of the SFA will continue to apply.
(b) Disgorgement by Persons who Benefit from Contravening Trades Conducted on their Behalf (Section 236L)
21 The amendments will introduce a new remedy to enable MAS or any adversely affected investor to apply to the court to order an “innocent” person to disgorge gains obtained from contravening trades. In this instance, the “innocent” person would not have been party to the market misconduct, but would have benefited from the illegal trade. Such a situation could arise, for example, where a person’s trading account is used by his broker without prior authorisation to conduct illegal trades, and profits are made and credited to his account. Accordingly, the “innocent” person should not be allowed to retain the gains.
22 An order for disgorgement for these types of gains to be paid into court will give adversely affected investors an opportunity to recover their losses. Once the gains are paid into court, the court will assess all claims in order to equitably distribute the disgorged sum among affected investors, within a set limitation period. Any unclaimed balance remaining at the end of this period will go to the Consolidated Fund. The court will have the discretion not to order disgorgement against the "innocent" person if the court considers that the circumstances make it unfair to do so.
(c) Corporate Derivative Liability (Sections 238A to 238D)
23 Under the SFA, a company may not be liable for market misconduct committed by its employees unless its senior management are directly involved in the market misconduct. This allows a company, which could benefit from the market misconduct of its employees, to avoid risk of liability by simply delegating decisions to lower level employees.
24 The amendments will make a company liable where it is proven that the market misconduct by its employees has been committed with the consent or connivance of the company, or where the company through its negligence has failed to prevent or detect the employee’s market misconduct. Where the misconduct is attributable to the company’s negligence, only civil penalty liability and civil liability will be imposed. In contrast, where the misconduct is attributable to the company’s consent or connivance, the company will be exposed to criminal liability, civil penalty liability and civil liability.
(III) Notification of Changes in Shareholdings of Directors and Substantial Shareholders and Offers of Investments
(a) Notification of Changes in Shareholdings of Directors and Substantial Shareholders (Sections 130 to 137ZG)
25 The legislative obligations for reporting of interests by directors and substantial shareholders of listed companies reside in both the SFA and the Companies Act. The amendments will streamline the process for notifying changes in interests in listed companies by rationalising the requirements such that these obligations only arise under the SFA:
(i) The requirement for directors and substantial shareholders to notify the listed company will be migrated from the Companies Act to the SFA;
(ii) Directors and substantial shareholders will no longer be required to notify the SGX of changes in their interests; and
(iii) It will be a legal requirement for the listed company to notify investors of any changes in interests of directors and substantial shareholders.
To enhance investor protection, the notification will be extended to foreign-incorporated companies with a primary listing on the SGX.
26 Similar changes will be made to the Business Trusts Act (“BTA”) in relation to the notification requirements for substantial unitholders’ interests in business trusts.
(b) Audit of Financial Statements of Debenture Issuers (Section 268)
27 Where a trustee has been appointed for a debenture issue, a debenture issuer is required to present and lodge half-yearly and full-year audited financial statements with MAS and the trustee. This requirement was adopted from the Companies Act. Feedback from issuers is that this requirement is onerous, especially where the country of incorporation of the debenture issuer does not require statutory audits at all. In comparison, share issuers are not required to furnish half-year audited financial statements. The amendments will remove the requirement for an audit of half-year financial statements for debenture issuers. To ensure proper keeping of financial records, the un-audited financial statements will still need to be lodged with MAS and the trustee.
(c) Lowered Minimum Investment Threshold Amount for Prospectus Exemption (Sections 275, 282Z and 305)
28 In response to the industry’s request that MAS consider expanding the range of investors to whom offers may be made without a prospectus, the amendments will lower the minimum investment amount required for prospectus exemption from $200,000 to $100,000. MAS is of the view that a person who is willing and able to invest at least $100,000 in a single transaction can be considered to possess, or would have access to, sufficient financial know-how to be able to protect his own interests.
(d) Recognition of Foreign Business Trusts (Sections 282TA to 282TC)
29 The SFA requires that all business trusts offered to retail investors be registered under the BTA to ensure proper governance and to safeguard investors’ rights. MAS acknowledges that for foreign-constituted business trusts, there may be difficulties in complying with overlapping provisions under the laws of its country of constitution and the BTA. Hence, foreign-constituted business trusts are generally exempted from registration under the BTA on a case-by-case basis.
30 The amendments will establish a recognition regime for foreign business trusts such that they need not be registered under the BTA for their units to be offered to retail investors. Such foreign-constituted business trusts will be recognised if the laws and practices of the jurisdiction under which they were constituted and regulated offer protection to Singapore investors that is at least equivalent to that afforded under the BTA. This is similar to the recognition regime for offers of foreign collective investment schemes.
(e) Removal of Resale Restrictions upon Listing of Securities (Sections 276, 282ZA and 305A)
31 The amendments to the SFA will remove the resale restriction in cases where the issuer has listed additional securities of the same class on an approved securities exchange with a prospectus issued in connection with the offer and listing.
32 Currently under the SFA, there is a resale restriction in respect of securities offered to accredited or institutional investors under a prospectus exemption. The accredited or institutional investor is not allowed to re-sell these securities for a six-month period from the date of acquisition of the securities, except to another accredited or institutional investor. This resale restriction would apply even if the issuer subsequently launched an offering with a prospectus and listed these securities within that six-month period.
33 Where the issuer subsequently launches an offering of additional securities of the same class with a prospectus, the issuer is subject to continuing disclosure obligations after listing. In such a case, if the accredited or institutional investors sell the securities in the secondary market, there would be adequate information available for investors to make informed decisions regarding these securities. There is thus no compelling reason to continue imposing the resale restriction.
(f) Enhancements to the Real Estate Investment Trusts (“REIT”) Regime (Sections 295A to 295C)
34 Following discussions between the industry and MAS on facilitating mergers and privatisations in the REIT market, the amendments introduce new provisions for the compulsory acquisitions of minority unitholdings, as well as to provide unitholders with an avenue to seek court redress in cases of oppression and injustice.
35 Compulsory Acquisition of Minority Unitholdings (Section 295A and Section 295B) – To facilitate privatisations of REITs, the amendments introduce a regime for the compulsory acquisition of minority unitholdings similar to that applicable to companies under section 215 of the Companies Act. An offeror who is making a general offer for units in a REIT will be able to compulsorily acquire the units of the dissenting minority if he has obtained acceptances in respect of more than 90% of the units offered for. The amendments also allow minority unitholders to require an offeror to acquire their units once an offeror and its nominees hold 90% of the total number of units on issue. As the amendments are also relevant for business trusts, similar changes will be made to the BTA as consequential amendments.
36 Remedies for Oppression or Injustice (Section 295C) – This amendment will allow a REIT unitholder to apply to court for an order to seek judicial redress where he has been oppressed, his interests have been disregarded, or where a resolution/act unfairly discriminates or is otherwise prejudicial to him. This is similar to the provision currently in force in Section 41 of the BTA and Section 216 of the Companies Act.
(IV) Markets and Clearing Facilities
(a) Setting of Position Limits and Trading Limits (Sections 16A and 61)
37 The SFA sets out the rules relating to the approval, determination, and breach of position limits and trading limits on futures contracts: (i) traded on futures markets of approved exchanges; and (ii) cleared or settled with designated clearing houses.
38 Position Limits - Currently, under the SFA, MAS is required to approve individual position limits. Under the amendments, approved exchanges and designated clearing houses, as the frontline regulators, will be responsible for setting individual position limits in accordance with their own position limit frameworks. Instead of approving individual position limits, MAS will be responsible for approving the overall position limit frameworks of approved exchanges and designated clearing houses.
39 Trading Limits - Under the amendments, MAS will no longer regulate trading limits set by approved exchanges and designated clearing houses. Approved exchanges and designated clearing houses should be responsible for assessing and ensuring that there are appropriate and adequate controls for the management of risks. This may include the use of trading limits.
(b) Extending the Emergency Powers of MAS (Sections 31, 80A, 143 and 144)
40 Approved exchanges and designated clearing houses are considered systemically-important markets and clearing facilities in our financial system. Any failure or disruption has the potential to undermine financial stability and public confidence. MAS has powers to deal with emergency situations in relation to approved exchanges and designated clearing houses under Sections 32, 34 and 81 of the SFA. Given the systemic importance of approved exchanges and designated clearing houses, the amendments will enhance MAS’ emergency powers.
41 Appointment of Advisers to an Approved Exchange or a Designated Clearing House (Section 31 and Section 80A) - The amendments will allow MAS to appoint one or more statutory advisers to provide advice to an approved exchange or designated clearing house on the proper management of its business. This power will be triggered when the approved exchange or designated clearing house:
(i) is or is likely to become insolvent;
(ii) has shown signs of mismanagement such that it is operating to the detriment of MAS’ regulatory objectives;
(iii) has contravened the SFA; or
(iv) has failed to comply with any condition attached to its approval as an approved exchange or designated clearing house.
42 MAS’ Information Gathering Powers (Sections 143 and 144) - The amendments will provide MAS powers to gather relevant information under all circumstances where MAS exercises emergency powers under Sections 32, 34 and 81 of the SFA. These enhanced information gathering powers will enable MAS to make more informed decisions.
(c) Power to Exempt Recognised Market Operators from Provisions under Part II of the SFA (Section 43A)
43 Part II of the SFA sets out a baseline level of regulation for recognised market operators. This baseline can be enhanced with additional obligations commensurate with the recognised market operator’s level of activity and risk posed to our capital markets.
44 The recognised market operator scheme is intended to be a flexible regulatory regime for market operators that do not pose a systemic risk to Singapore’s financial system. To enhance this flexibility, the amendments will give MAS the power to exempt recognised market operators from any provision under Part II of the SFA.
(d) Designated Clearing House’s Handling of Customers’ Money (Section 62)
45 The SFA sets out the obligations of a designated clearing house which holds money or assets in respect of the contracts of customers of its members. There was feedback that the existing provision is ambiguous as to whether commingling of all customers’ money or assets in the same account is allowed.
46 The amendments will clarify that money or assets deposited with the designated clearing house by a member for its customers are to be held in trust for the customers and kept separate from money and assets of members. Commingling of money or assets of customers of different members will not be prohibited. However, separate books have to be kept for customers’ money and assets deposited by different members.
(e) Permissible Use of Customers’ Money and Assets in Event of Default (Section 63)
47 The SFA currently provides that in the event of a default by a member, a designated clearing house may use customers’ money or assets to meet the obligations of the member (which arise from the default of a customer) as long as the designated clearing house has reasonable grounds to assess that: (i) the member’s default was the result of a customer’s default to that member; and (ii) the failure to use customers’ money or assets may jeopardise the designated clearing house’s financial integrity.
48 The industry requested clarity as to when it would be considered that a designated clearing house’s financial integrity is in jeopardy. In response, amendments will be made to allow the clearing house to use customers’ money or assets when the designated clearing house has reasonable grounds to assess that:
(i) the member’s default was the result of a customer’s default to that member; and
(ii) the designated clearing house had wholly utilised the defaulting member’s available money and assets against the default or the failure to use customers’ money or assets may jeopardise the financial integrity of the designated clearing house.
49 The use of the conjunction "or" for the conditions is deliberate and intended to give the designated clearing house flexibility in situations of grave systemic concern. It is MAS’ intention that the designated clearing house should normally take all reasonable steps to ensure that it has wholly utilised the defaulting member’s available money and assets before it relies on the flexibility afforded by the last condition. This will be further elaborated in the Guidelines on Regulation of Clearing Facilities. Designated clearing houses will also be required to disclose the circumstances under which they may use customers’ money or assets.
(f) Power to Exempt a Holding Company of an Approved Exchange or Designated Clearing House from Provisions under Part IIIA of the SFA (Section 81U)
50 Part IIIA of the SFA requires all direct and indirect holding companies of approved exchanges and designated clearing houses to apply to MAS to be approved as approved holding companies. The amendments will give MAS the power to exempt a holding company from being regulated under Part IIIA of the SFA. This will be the case, for example, where a holding company is already separately subject to MAS regulation.
(g) Fidelity Funds of Securities Exchanges and Futures Exchanges (Section 186)
51 Under the SFA, approved exchanges are required to establish a fidelity fund to compensate investors who suffer losses as a result of defalcation . The SFA also sets out the circumstances under which claims can be made on the fidelity fund.
52 In response to industry feedback, the amendments limit the coverage of a fidelity fund of an approved exchange to: (i) losses arising from trading on that approved exchange; and (ii) losses arising from trading through a trading linkage of that approved exchange with an overseas exchange. The amendments will also expand the circumstances under which a claim can be made on a futures fidelity fund to align with the circumstances under which a claim can be made on the securities fidelity fund. This will mean that claims can be made on the futures fidelity fund not only in the event of defalcation by a member, but also when there is bankruptcy or insolvency of members of the futures exchange.
(V) Regulatory Flexibility to Deal with Market Innovation
(a) Definition of “Securities” and “Futures Contract” (Sections 2(1), 196A, 214 and 239)
53 The definitions of “securities” in the SFA are in the form of a list of products designated as securities, and a list of products explicitly excluded as securities. When new products need to be brought within the regulatory ambit of the SFA as “securities”, this approach requires making amendments to the SFA. This affects the time-to-market for such products, to the detriment of the industry. The amendments will allow MAS to prescribe products as “securities” and to exclude products from the definition of “securities”.
54 The definition of “futures contract” in the SFA already has a provision to allow MAS to prescribe contracts as “futures contract”. To further enhance regulatory flexibility, the amendments will allow MAS to exclude contracts from the definition of “futures contract”.
55 These amendments will enable MAS to improve time-to-market for new products, and more efficiently keep pace with market developments and innovation.
KEY AMENDMENTS IN THE FA(A) BILL
56 The amendments in the FA (A) Bill are similar to those in the SF(A) Bill under the section entitled “(I) Capital Markets Licensing and Business Conduct” and outlined in paragraphs (a), (b), (c), (d), (e), (h) and (i) of the section.
57 The key amendments are listed below:
(i) Perpetual licensing regime for financial advisers’ licence holders (Section 9);
(ii) Representative Notification Framework (New Division 2 of Part II);
(iv) Appointment of directors by financial advisers’ licence holders (Section 56);
(v) Requirement to seek approval for take-over of licence holders (Sections 57A and 57B); and
(vi) Confidentiality of inspection and investigation reports (Sections 70A and 71A).
 This refers to financial institutions licensed under the SFA as capital markets services licence holders, and financial institutions exempted under sections 99(1)(a), (b), (c), and (d) of the SFA from the requirement to hold a capital markets services licence. Representatives of financial institutions are persons employed by or acting for these financial institutions in carrying out a regulated activity under the SFA.
 The examination requirements are under the SFA 04-N06 Notice on Minimum Entry and Examination Requirements for Representatives of Holders of Capital Markets Services Licence and Exempt Financial Institutions.
 A person is regarded as having effective control of a holder of a capital markets service licence if the person alone or acting together with any connected person would be in a position to control not less than 20% of the voting power in the licence holder or would hold interests in not less than 20% of the issued share capital of the licence holder.
 These are representatives of capital markets services licensees and financial institutions, such as banks, merchant banks, financial companies and insurance companies, exempted under Section 99(1)(a), (b), (c) and (d) of the SFA.
 This includes corporations conducting regulated activities without holding capital markets services licences or which are exempt from holding the licences, and individuals conducting regulated activities who are neither listed on the public register of representatives nor acting for certain corporations exempted from licensing.