Division 5C — Compensation
Interpretation of this Division
112.  In this Division, unless the context otherwise requires —
“2nd transferee” has the same meaning as in section 60;
“Division 5C FI” or “Division 5C financial institution” means a pertinent financial institution within a class of pertinent financial institutions prescribed by regulations made under section 126 for the purposes of this Division;
“Division 5C FI under resolution” means a Division 5C FI that is the subject of a resolution action;
“pre-resolution creditor”, in relation to a Division 5C FI under resolution, means any person who was a creditor of the Division 5C FI immediately before the resolution date;
“pre-resolution shareholder”, in relation to a Division 5C FI under resolution, means any person who held shares or instruments conferring or representing a legal or beneficial ownership interest in the Division 5C FI, immediately before the resolution date;
“prescribed written law” has the same meaning as in section 86;
“resolution action” means —
(a)the issue of a certificate of transfer under section 58 or any action to be taken under that certificate;
(b)the issue of a certificate of transfer under section 67 or any action to be taken under that certificate;
(c)the issue of a certificate of restructuring of share capital under section 70 or any action to be taken under that certificate;
(d)the issue of a bail-in certificate under section 75 or any action to be taken under that certificate; or
(e)the making of an order under section 95 that provides for any of the matters mentioned in section 95(2);
“resolution date”, in relation to a Division 5C FI under resolution, means —
(a)if the Division 5C FI is the subject of the issue of a certificate of transfer under section 58, a certificate of transfer under section 67, a certificate of restructuring of share capital under section 70, or a bail-in certificate under section 75, the date the certificate is published in the Gazette;
(b)if the Division 5C FI is the subject of 2 or more actions mentioned in paragraphs (a) to (d) of the definition of “resolution action”, the earlier or earliest of the dates of publication of the relevant certificates in the Gazette;
(c)if the Division 5C FI is the subject of an action mentioned in paragraph (e) of the definition of “resolution action”, the date of publication of the order in the Gazette; or
(d)if the Division 5C FI is the subject of one or more actions mentioned in paragraphs (a) to (d) of the definition of “resolution action”, as well as the action mentioned in paragraph (e) of that definition, the earlier of the following dates:
(i)the date of publication in the Gazette of the relevant certificate or, if there is more than one relevant certificate, the earlier or earliest of the dates of publication in the Gazette of the relevant certificates;
(ii)the date of publication in the Gazette of the order;
“transferee” has the same meaning as in section 56;
“valuation report” means a report issued by a valuer under section 116(3);
“valuer” means a person appointed under section 115 as a valuer.
[Act 31 of 2017 wef 29/10/2018]
Meaning of “worse off as a result of the resolution”
113.—(1)  In this Division, a pre-resolution creditor or pre-resolution shareholder of a Division 5C FI under resolution is worse off as a result of the resolution if, by reason of one or more of the actions mentioned in subsection (2) taken in relation to the Division 5C FI, the pre-resolution creditor or pre-resolution shareholder has received, is receiving or is likely to receive less favourable treatment than what the pre-resolution creditor or pre-resolution shareholder would have received had winding up proceedings been commenced against the Division 5C FI immediately before the resolution date.
(2)  In subsection (1), the actions are —
(a)any resolution action;
(b)the issue of a reverse transfer certificate under section 62 or any action taken under that certificate; and
(c)the issue of an onward transfer certificate under section 64 or any action taken under that certificate.
(3)  In any of the following cases, it is a rebuttable presumption that a pre-resolution creditor or pre-resolution shareholder of a Division 5C FI under resolution is not worse off as a result of the resolution:
(a)the liability or instrument concerned is transferred to a transferee under section 58 and the transferee is subject to the same terms for that liability or instrument as those to which the Division 5C FI under resolution was subject;
(b)the liability or instrument concerned is transferred under section 58 and is then transferred back to the Division 5C FI under section 62, and the Division 5C FI is subject to the same terms for that liability or instrument as it was subject to immediately before the transfer under section 58;
(c)the liability or instrument concerned is transferred under section 58 and is then transferred to a 2nd transferee under section 64, and the 2nd transferee is subject to the same terms for that liability or instrument as those to which the Division 5C FI under resolution was subject;
(d)the only resolution action to which the Division 5C FI is subject is the issue of a bail-in certificate within the meaning of Division 4A or any action under the certificate, and the instrument or liability concerned is not one to be bailed in under that certificate;
(e)the only resolution action to which the Division 5C FI is subject is the making of an order under Division 5A, and the pre-resolution creditor or pre-resolution shareholder is eligible for compensation under the law of a foreign country or territory by reason of the resolution to which the order gives effect.
[Act 31 of 2017 wef 29/10/2018]
Eligibility for compensation
114.—(1)  A pre-resolution creditor or pre-resolution shareholder of a Division 5C FI under resolution that is worse off as a result of the resolution, is eligible for compensation of the amount mentioned in subsection (2).
(2)  The amount of compensation that the pre-resolution creditor or pre-resolution shareholder is eligible for is the difference between —
(a)what the pre-resolution creditor or pre-resolution shareholder would have received had winding up proceedings been commenced against the Division 5C FI under resolution immediately before the resolution date; and
(b)what the pre-resolution creditor or pre-resolution shareholder has received, is receiving, or is likely to receive —
(i)as a result of one or more of the actions mentioned in section 113(2); and
(ii)as compensation under the law of a foreign country or territory governing the foreign resolution (if applicable).
(3)  Subject to section 120, the Authority must recommend to the Minister to make a direction to the trustee of the resolution fund established under Division 5B in relation to the resolution of the Division 5C FI, to make a withdrawal from the fund to pay to the pre-resolution creditor or pre-resolution shareholder, the amount set out in the valuation report as the amount mentioned in subsection (2).
(4)  Payment of the compensation to the pre-resolution creditor or pre-resolution shareholder is to be made in the form and manner, and within the time, prescribed by regulations made under section 126.
[Act 31 of 2017 wef 29/10/2018]
Appointment of valuer
115.—(1)  The Minister must, as soon as practicable, after the resolution date of a Division 5C FI under resolution, appoint a valuer for the Division 5C FI.
(2)  The role of a valuer appointed under this section is to make a valuation in relation to the Division 5C FI in accordance with section 116, and decide whether any pre-resolution creditor or pre-resolution shareholder of the Division 5C FI is eligible for compensation and the amount of the compensation.
(3)  The Minister may only appoint a person as a valuer if the Minister is satisfied that the person satisfies the criteria prescribed by regulations made for the purposes of this subsection under section 126.
(4)  The appointment of a valuer is to be made on such conditions as the Minister may determine, and the Minister may at any time add to, vary or revoke any such condition.
(5)  The Minister may on any prescribed ground revoke the appointment of a valuer, and may, subject to subsections (3) and (4), appoint a new valuer.
(6)  Where the appointment of a valuer is revoked and a new valuer appointed under subsection (5), the Authority may direct the previous valuer to provide such information and documents to the new valuer as the Authority considers necessary for the new valuer to conduct the valuation.
(7)  A valuer that does not comply with a direction issued under subsection (6) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part of a day during which the offence continues after conviction.
(8)  The Authority may at any time fix the remuneration and expenses to be paid to a valuer.
(9)  The remuneration and expenses of a valuer may be paid out of the resolution fund established under Division 5B in relation to the resolution of the Division 5C FI.
[Act 31 of 2017 wef 29/10/2018]
Valuation
116.—(1)  A valuer for a Division 5C FI under resolution must conduct the valuation of the Division 5C FI in accordance with the valuation principles that are prescribed by regulations made under section 126, and any other valuation principles specified by the Authority by written notice to the valuer.
(2)  The valuer must determine the amount of compensation to be paid to each pre-resolution creditor or pre-resolution shareholder of the Division 5C FI, or each one that is within a class of pre-resolution creditors or pre-resolution shareholders of the Division 5C FI, by reference to the difference between —
(a)the valuer’s assessment of what the pre-resolution creditor or pre-resolution shareholder would have received had winding up proceedings been commenced against the Division 5C FI immediately before the resolution date; and
(b)the valuer’s assessment of what the pre-resolution creditor or pre-resolution shareholder has received, is receiving, or is likely to receive —
(i)as a result of one or more of the actions mentioned in section 113(2); and
(ii)as compensation under the law of a foreign country or territory governing the foreign resolution (if applicable).
(3)  After conducting the valuation, the valuer for a Division 5C FI under resolution must issue a report setting out the valuer’s decision on —
(a)whether each pre-resolution creditor or pre-resolution shareholder of the Division 5C FI is eligible for compensation; and
(b)the amount of compensation to be paid to each pre-resolution creditor or pre-resolution shareholder.
(4)  The valuation report must specify the information that is prescribed by regulations made under section 126 and any other valuation principles specified by the Authority by written notice to the valuer.
(5)  The valuer must provide the valuation report to the Minister and the Authority by such date as may be determined by the Minister.
(6)  On receiving a copy of the valuation report, where the Authority is of the view that —
(a)the valuation report was not prepared in accordance with this section; or
(b)the valuer should have had regard to any additional circumstances not taken into account in the valuation report,
the Authority may, by notice in writing, request the valuer to reconsider the valuation report or any aspect of the report by such date as the Authority may specify in the notice.
(7)  The Authority may cause the valuation report or any part of it to be published in the manner determined by the Authority.
[Act 31 of 2017 wef 29/10/2018]
Access to information by valuer
117.—(1)  A Division 5C FI under resolution for which a valuer is appointed must —
(a)give the valuer access to such of its records and documents as the valuer may reasonably require to conduct the valuation;
(b)procure a person who is in possession of such records and documents to give the valuer access to them;
(c)provide such information and facilities as the valuer may reasonably require to conduct the valuation; and
(d)procure a person who is in possession of such information or facilities to provide the information or facilities to the valuer.
(2)  Subsection (1) has effect despite any obligation of confidentiality or other restrictions on the disclosure of information imposed on the Division 5C FI under resolution or any of its officers, or on any person mentioned in subsection (1)(b) or (d), by any prescribed written law or any requirement imposed under any such written law, any rule of law, any contract or any rule of professional conduct.
(3)  A Division 5C FI under resolution that refuses or neglects, without reasonable excuse, to comply with subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part of a day during which the offence continues after conviction.
(4)  No civil or criminal liability is incurred by a Division 5C FI under resolution or any of its officers, or by any person mentioned in subsection (1)(b) or (d) or any of the person’s officers, in respect of any obligation or restriction mentioned in subsection (2), for doing or omitting to do any act, if the act is done or omitted to be done with reasonable care and in good faith and for the purpose of complying with or giving effect to subsection (1).
(5)  A Division 5C FI under resolution or any of its officers, or any person mentioned in subsection (1)(b) or (d), that, with reasonable care and in good faith, does or omits to do any act for the purpose of complying with or giving effect to subsection (1) is not to be treated as being in breach of any obligation or restriction mentioned in subsection (2).
[Act 31 of 2017 wef 29/10/2018]
Confidentiality and use of information
118.—(1)  A valuer must not use or disclose any information obtained under this Division other than for the performance of its functions under this Division.
(2)  Any person who comes to know of any information in the course of assisting another person to perform a function under this Division must not use or disclose the information for any purpose other than for such assistance.
(3)  Except as provided under sections 116(5) and 119, a valuer must not disclose any part of the valuation report issued by the valuer to any person.
(4)  The duties of a valuer under subsections (1) and (3) continue after the revocation or cessation of the valuer’s appointment.
(5)  Any person who contravenes subsection (1), (2) or (3) shall be guilty of an offence and shall be liable on conviction —
(a)in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both; or
(b)in any other case, to a fine not exceeding $250,000.
(6)  Any person to whom any information is disclosed, who knows or has reasonable grounds for believing at the time of the disclosure, that the information was disclosed to the person in contravention of subsection (1), (2) or (3), shall be guilty of an offence and shall be liable on conviction —
(a)in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both; or
(b)in any other case, to a fine not exceeding $250,000.
(7)  Where a person is charged with an offence under subsection (6), it is a defence for the person to prove that —
(a)the disclosure was made contrary to the person’s desire;
(b)where the disclosure was made in any written or printed form, the person had as soon as practicable after receiving the information, surrendered, or taken all reasonable steps to surrender, the information and all copies of the information to the Authority; and
(c)where the disclosure was made in an electronic form, the person had, as soon as practicable after receiving the information, taken all reasonable steps to ensure the deletion of all electronic copies of the information and the surrender of the information and all copies of the information in other forms to the Authority.
[Act 31 of 2017 wef 29/10/2018]
Disclosure of valuation report
119.—(1)  A valuer of a Division 5C FI under resolution may, with the Authority’s approval, disclose the whole or any part of the valuation report of the Division 5C FI to the Division 5C FI, any pre-resolution creditor or pre-resolution shareholder of the Division 5C FI, or the public.
(2)  In granting approval for a disclosure, the Authority may impose such conditions or restrictions as it thinks fit on the valuer as to the form or content of the valuation report or part of it to be disclosed.
(3)  The Authority may also impose such conditions or restrictions as it thinks fit on the Division 5C FI under resolution or any pre-resolution creditor or pre-resolution shareholder of the Division 5C FI that the valuer discloses the valuation report to.
(4)  Any person who contravenes any of the provisions of this section, or any condition or restriction imposed under subsection (2) or (3), shall be guilty of an offence and shall be liable on conviction —
(a)in the case of an individual, to a fine not exceeding $125,000 or to imprisonment for a term not exceeding 3 years or to both; or
(b)in any other case, to a fine not exceeding $250,000.
[Act 31 of 2017 wef 29/10/2018]
Appeals
120.—(1)  The Authority may appeal to the Court against a valuation report if it is dissatisfied with —
(a)the valuer’s decision on any person’s eligibility for compensation; or
(b)the amount of compensation to be paid to any person pursuant to the valuation report.
(2)  A person may appeal to the Court against a valuation report if the person is dissatisfied with —
(a)the valuer’s decision on the person’s eligibility for compensation; or
(b)the amount of compensation to be paid to the person pursuant to the valuation report.
(3)  The Court may make an order that confirms or varies the valuation report in respect of the eligibility of a person for compensation or the amount of compensation to be paid to the person.
(4)  No person may lodge an appeal after the resolution fund established under Division 5B in relation to the resolution of the Division 5C FI has been dissolved in accordance with regulations made for the purposes of section 109(2).
(5)  Rules of Court may provide for the manner in which appeals under this section may be made and the procedure for the appeal.
[Act 31 of 2017 wef 29/10/2018]