Singapore: The Legal 500: Restructuring & Insolvency Country Comparative Guide

Last Updated: 13 September 2017
Article by Debby Lim
Most Read Contributor in Singapore, September 2017

This country-specific Q&A provides an overview of the legal framework and key issues surrounding restructuring and insolvency in Singapore.

This Q&A is part of the global guide to Restructuring & Insolvency.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/restructuring-insolvency/

1. What forms of security can be granted over immovable and movable property? What formalities are required and what is the impact if such formalities are not complied with?

Singapore law adopts the English common law forms of security interest, i.e. the mortgage, charge, pledge and lien. For immovable property, the principal types of security are mortgages (either legal or equitable). For movable property, the most common types of security are fixed or floating charges. Pledges and liens are less prevalent.

Mortgages
A mortgage provides not only rights of appropriation over the asset but also involves a transfer of ownership of equitable or legal title to the mortgagee. This is commonly used for land and shares.

Charges
A charge is created when the chargor agrees to make available a property towards the satisfaction of the debt so that the creditor is entitled, in the event of default of repayment of the debt, to take possession of the property, sell it and apply the proceeds in satisfaction of the debt. Unlike a mortgage, both ownership and possession of the property remains with the chargor.

Pledge
A pledge is created when the pledgor transfers possession of goods owned by him to the creditor with the intention of using the goods as security for the sum owed. A crucial requirement for the creation of a pledge is the transfer of possession of the goods. This is undertaken via actual physical delivery or constructive delivery.

Liens
A lien confers a right to retain lawful possession of a property owned by the debtor until the claim by the person in possession against the debtor has been satisfied. A lien may be created by common law, contract or statute.

Different legal formalities apply to each type of security interest. A registrable security which is not properly registered under the Companies Act is void against the liquidator and other creditors of the company but remains valid until liquidation. Other than registration under the Companies Act, there may be additional registration requirements depending on the nature of the collateral. For instance, a charge over real property governed by the Land Titles Act must be in the prescribed form and registered with the Singapore Land Authority. Other requirements apply to security over other assets such as ships, aircraft and intellectual property rights.

2. What practical issues do secured creditors face in enforcing their security (e.g. timing issues, requirement for court involvement)?

Under Singapore law, security interests are almost sacrosanct. Secured creditors typically have far-ranging powers under the terms of the security document to take possession, dispose of or otherwise deal with the collateral, or even appoint a receiver and manager in respect of the collateral to satisfy the secured debt. Regulatory consent may be required where the borrower is a regulated entity.

Secured creditors stand outside the liquidation, and their entitlement to realise their security is unaffected by the appointment of a liquidator. In contrast upon the making of a judicial management order, a creditor may not enforce any security over the company's assets unless it obtains leave of the court or the judicial manager's permission.

The court may also grant an order for a temporary moratorium if requested by a scheme proponent. Such a moratorium usually carves out the enforcement of security by secured lenders. However, the new 2017 amendments to the Companies Act bring into effect a moratorium preventing secured creditors from enforcing security rights over the property of the applicant or any of its related companies.

3. What is the test for insolvency? Is there any obligation on directors or officers of the debtor to open insolvency procedures upon the debtor becoming distressed or insolvent? Are there any consequences for failure to do so?

Even though no one single test is conclusive as a measure of solvency, it is commonly accepted that the two primary indicia of a company's inability to pay debts are an inability to meet a demand for a debt which has become due (the "cash flow" test) and an excess of liabilities over assets (the "balance sheet" test). For most purposes, it is the present inability to pay debts that is the crucial factor. Ultimately, the determination of whether a company is insolvent is a fact specific inquiry.

Usually, the directors will seek to place a company into formal insolvency proceedings where there is the likelihood that the directors may be held personally liable for wrongful or fraudulent trading if the company were to continue business. Wrongful and fraudulent trading can attract both civil and criminal liability. This is explored in greater detail in the answer to Question 11 below.

4. What insolvency procedures are available in the jurisdiction? Does management continue to operate the business and / or is the debtor subject to supervision? What roles do the court and other stakeholders play? How long does the process usually take to complete?

Voluntary Liquidation
A members' voluntary winding up commences upon the passing of a special resolution by the members of the company. The company must be in a position to pay its debts in full within 12 months after the commencement of winding up. The directors of the company are required to file a declaration of solvency to the above effect. If this declaration is made without reasonable grounds, there are penal consequences. In a members' voluntary winding up, the liquidator will be appointed by the company.

Where a company is unable to pay its debts and wishes to be wound up, it may do so by way of a creditors' voluntary winding up. In addition to the requirement of a members' resolution to wind up the company, the company must also convene a meeting of its creditors to consider the proposal for a voluntary winding up. The company will appoint a liquidator, subject to any preference the creditors may have as to the choice of liquidator.

From the commencement of winding up, the company shall cease to carry on its business. On the appointment of a liquidator in a members' voluntary liquidation, all the powers of the directors shall cease except so far as the liquidator or the company in general meeting with the consent of the liquidator approves the continuance thereof. On the appointment of a liquidator in a creditors'' voluntary liquidation, all the powers of the directors shall cease, except so far as the committee of inspection, or, if there is no such committee, the creditors, approve the continuance thereof.

Compulsory Liquidation
The following parties can apply to wind up a company compulsorily:

  1. The company itself;
  2. A creditor of the company;
  3. A shareholder of the company;
  4. A liquidator;
  5. A judicial manager; or
  6. Various Ministers on grounds specified under the law.

There are certain grounds upon which a company can be wound up compulsorily. A company's inability to pay its debts is a common ground for presenting an originating summons for compulsory winding up. A company is deemed to be unable to pay its debts if:

  1. A creditor having a claim against the company for more than S$10,000 has served a statutory demand requiring payment, and the debt is not paid or secured or compounded to the reasonable satisfaction of the creditor within 3 weeks;
  2. Execution of a judgment obtained by a creditor against the company remains unsatisfied in part or in whole; or
  3. It is proved to the Court's satisfaction that the company is unable to pay its debts.

If the court orders that the company be wound up, the winding up is deemed to have commenced at the time of presentation of the application. Any disposition of the company's property or any share transfer made after the commencement of the winding up is void unless the court orders otherwise. The appointment of a liquidator in a compulsory winding-up renders the board of directors functus officio, because the powers of the board of directors are assumed by the liquidator.

Judicial Management
Part VIIIA of the Companies Act provides for the appointment of a judicial manager by the court upon an application by the company, its directors, or a creditor if the Court is satisfied that the company is unable to pay its debts and that the appointment would be likely to achieve: (a) the survival of the company or the whole or part of its undertaking as a going concern; (b) the approval of a compromise or arrangement between the company and its creditors; or (c) a more advantageous realisation of the company's assets than could be effected on a winding up.

At the hearing of the application, the court has full discretion to grant or dismiss the application or adjourn the hearing and make such interim orders as may be necessary.

Once a judicial management order is made, the board is functus officio. All powers conferred and duties imposed on the directors shall be exercised and performed by the judicial manager.

When a judicial manager is appointed, he has 60 days (or such longer period as the court may allow) to formulate and lay before the creditors of the company at a meeting called for that purpose a statement of his proposals for the achievement of the purposes for which the order was made. Unless discharged earlier or extended by the court, a judicial management order remains in force for 180 days.

5. How do creditors and other stakeholders rank on an insolvency of a debtor? Do any stakeholders enjoy particular priority (e.g. employees, pension liabilities)? Could the claims of any class of creditor be subordinated (e.g. equitable subordination)?

Secured creditors stand outside the liquidation, and their entitlement to realise their security is unaffected by the appointment of a liquidator. If the security is inadequate, they may prove as unsecured creditors for the balance.

Certain debts as set out in section 328 of the Companies Act have priority over a floating-charge holder and unsecured creditors. If there are insufficient assets to pay any class of preferred debts, the debts within the class abate in equal proportions. Thereafter, the debts attributable to subsequent classes and other unsecured creditors will not be paid.

Any residual assets of the company remaining after payment of all secured, preferred and unsecured creditors will be divided amongst the company's shareholders. Where there are preference shares, their entitlements or preferences will be honoured in accordance with the terms of their issue as set out in the memorandum and articles of association of the company. Finally, the ordinary shareholders will participate equally in all remaining assets.

6. Can a debtor's pre-insolvency transactions be challenged? If so, by whom, when and on what grounds? What is the effect of a successful challenge and how are the rights of third parties impacted?

The avoidance provisions found principally in the Companies Act and the Bankruptcy Act enable the unravelling of certain transactions that would, but for the winding up or judicial management, have remained binding on the company. If successfully invoked, they mandate the clawing-back of property transferred by the transactions or a reversal of their effects.

Where a floating charge has been created within six months of the commencement of the winding up, such a charge shall be invalid except as to the amount of any cash paid to the company at the time of, or subsequent to, the creation of and in consideration for the charge, together with interest on that amount at the rate of 5 percent per annum; unless it is established that the company was solvent immediately after the creation of the charge.

A liquidator or a judicial manager has the power to set aside transactions at an undervalue, where such transaction(s) was given when a company was insolvent, or became insolvent as a result of the transaction(s) in question. A transaction at an undervalue can be impugned if it took place within five years before the commencement of winding up or judicial management. There is a presumption of insolvency if the transaction is entered into with an "associate".

For transactions at an undervalue, such transactions must have been entered into for no consideration or consideration of significantly less value in monetary terms is provided. Alternatively, the value of the consideration given by the company significantly exceeds the value received by the company.

A liquidator or a judicial manager has the power to set aside an unfair preference given when a company was insolvent or, as a result of which, the company became insolvent. An unfair preference, which is not a transaction at an undervalue, and which is given to an associate of the company, can be challenged if it took place within two years before the filing of a winding up application. Any other unfair preference can be challenged if it took place within six months before the filing of the winding up application.

Any security created by a registrable but unregistered charge is void against the liquidator of the company or any creditor of the company. Upon the making of the winding up order, a statutory trust is imposed on the assets of the company for the purpose of discharging the company's liabilities. However, the statutory trust does not confer beneficial or proprietary interests on the unsecured creditors, who therefore do not have locus standi to avoid an unregistered charge.

Credit transactions are extortionate if either the terms are such as to require grossly exorbitant payments be made in respect of the provision of the credit, or it is harsh and unconscionable or substantially unfair. Such transactions may be set aside or varied by the Court if they are entered into within a period of three years before the commencement of winding up or judicial management. It has to be demonstrated that not only were the transactions unfair, but were oppressive and reflecting an imbalance in bargaining power of which the other party took improper advantage.

Lastly, the liquidator or judicial manager has the right to recover dissipated assets in respect of certain sales to or by a company.

7. What restructuring and rescue procedures are available in the jurisdiction, what are the entry requirements and how is a restructuring plan approved and implemented? Does management continue to operate the business and/or is the debtor subject to supervision? What roles do the court and other stakeholders play?

To propose a scheme of arrangement, the company must apply to court for an order summoning a meeting of the creditors of the company and/or the members of the company, as the case may be.

If the court grants leave to convene the meeting(s), the company must send out a notice calling the meeting(s) and the notice must contain an explanatory statement explaining the effect of the proposed compromise or arrangement. The scheme must be approved at the meeting(s) by a majority in number representing three-quarters in value of each class of creditor or member present and voting at the meeting, unless the court orders otherwise.

After the requisite majority has been obtained, the scheme will only be binding on the company and its members and creditors if the Court approves it. Such approval may be subject to such alterations or conditions as the Court thinks just and equitable. Thus, the validity of a scheme emanates from the court order approving it.

The current management of the debtor company remains in place with full powers, subject only in certain cases to oversight by an insolvency professional.

8. Can a debtor in restructuring proceedings obtain new financing and are any special priorities afforded to such financing (if available)?

The amendments to the Companies Act that will take effect in the second quarter of 2017 introduce super priority for rescue financing. The court will be able to grant four levels of priority, specifically for the rescue financing to be (i) treated as an administrative expense, (ii) have super priority over preferential debts, (iii) secured by a security interest that is subordinate to existing security, or (iv) secured by a super priority security interest. The granting of a super priority security interest will be subject to safeguards, to ensure existing secured creditors are not unfairly prejudiced.

9. How are existing contracts treated in restructuring and insolvency processes? Are the parties obliged to continue to perform their obligations? Will termination, retention of title and set-off provisions in these contracts remain enforceable? Is there any an ability for either party to disclaim the contract?

The Companies Act empowers the liquidator to disclaim property or contractual obligations of the company if they impose onerous burdens, are unprofitable or not readily realisable. The liquidator can exercise the power of disclaimer only with the leave of the Court or the committee of inspection.

Unless otherwise provided for contractually, the making of a judicial management order does not affect the contracts to which the company is a party. Unlike a liquidator, a judicial manager does not have the power to disclaim onerous contracts. Although in practice the judicial manager may choose not to adopt certain contracts, leaving the contractual counterparty with an unsecured claim for damages against the company.

The judicial manager is personally liable for any contract entered into or adopted by him unless he disclaims the liability. However, the judicial manager is entitled to be indemnified out of the assets of the company in respect of this liability.

In a liquidation, contractual and equitable rights of set-off are displaced by insolvency set-off provisions provided for in the Companies Act. Mutual credits, debts or other dealings may be set off against each other only if they are mutual. Debts or liabilities that are not provable in insolvency are excluded from set-off.

For a company under judicial management, the moratorium excludes creditors' self-help remedies such as contractual set-off.

10. What conditions apply to the sale of assets/the entire business in a restructuring or insolvency process? Does the purchaser acquire the assets "free and clear" of claims and liabilities? Can security be released without creditor consent? Is credit bidding permitted?

The considerations involved in the sale of assets/the entire business of a company pursuant to a scheme of arrangement or under judicial management or liquidation are not significantly different as compared to the sale of assets in a solvent situation. Generally, the new owner acquires the assets and not the liabilities. However, the new owner may take the asset subject to any encumbrances as to title that may have affected the vendor.

The judicial manager may dispose of or otherwise exercise his powers in relation to any property of the company which is subject to a floating charge as if the property were not subject to the security. In respect of any other security, leave of the Court is required to deal with the charged property.

Credit bidding is not common but it is an accepted tool especially in the context of debt-for-equity restructurings.

11. What duties and liabilities should directors and officers be mindful of when managing a distressed debtor? What are the consequences of breach of duty?

There are various duties and liabilities concerned with increasing directors' accountability to a company's creditors, particularly during the twilight period of financial difficulty where such company is insolvent or imminently so. Once a company is of doubtful solvency, the interests of the creditors take precedence over that of the shareholders.

Fraudulent Trading
Fraudulent trading occurs where, in the course of winding up or any proceedings against a company, it appears that any business of the company has been carried on with an intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose. On the application of the liquidator or any creditor or contributory of the company, the Court may, if it thinks proper to do so, declare that any person, who was knowingly a party to the carrying on of the business in that manner, shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company. Such a person may also be guilty of the commission of an offence.

Wrongful Trading
Wrongful Trading occurs if, in the course of the winding up of a company or in any proceedings against a company, it appears that an officer of the company who was knowingly a party to the contracting of a debt had, at the time the debt was contracted and after taking into consideration the other liabilities (if any) of the company, no reasonable or probable ground of expectation of the company being able to pay the debt, such officer shall be guilty of an offence. If found guilty, that person can also be made personally liable for the whole or part of the debt.

Breach of directors' duties affecting creditors
If a company has become insolvent, the directors may be in breach of their duties to the company if they prejudice the interests of the creditors. This is so even if the shareholders of the company have no objections to their actions or where the shareholders may actually have benefited.

12. Is there any scope for other parties (e.g. director, partner, parent entity, lender) to incur liability for the debts of an insolvent debtor?

Directors may be liable for contracting a debt knowing that there was no reasonable prospect or probable grounds of expectation that the company would be able to pay the debt. Please refer to the discussion above.

13. Do restructuring or insolvency proceedings have the effect of releasing directors and other stakeholders from liability for previous actions and decisions?

Neither the commencement of insolvency proceedings nor resignation by a director can absolve the said director of any previous transgressions. There appears to be an increasing trend of former officers being pursued personally by the liquidator or judicial manager.

14. Will a local court recognise concurrent foreign restructuring or insolvency proceedings over a local debtor? What is the process and test for achieving such recognition?

Singapore enacted legislation implementing the UNCITRAL Model Law on Cross Border Insolvency ("Model Law") by way of the recent 2017 amendments to the Companies Act. Articles 28 to 30 provide for the coordination of concurrent local and foreign insolvency proceedings concerning the same debtor.

The Model Law provides for the commencement of a local insolvency proceeding subsequent to the recognition of a foreign main proceeding. Such a commencement is possible only if the debtor has assets in the state. The effect of the local proceeding will be limited to the local assets.

When the local insolvency proceeding is already in place at the time that recognition of a foreign proceeding is requested, the Model Law requires that any relief granted for the benefit of the foreign proceeding must be consistent with the local proceeding.

When the local insolvency proceeding commences after recognition of the foreign proceeding, the relief that has been granted for the benefit of the foreign proceeding must be reviewed and modified or terminated if inconsistent with the local proceeding.

15. Can debtors incorporated elsewhere enter into restructuring or insolvency proceedings in the jurisdiction?

The Companies Act provides that a foreign company may only be wound up by the Court and that it cannot be voluntarily wound up by members or creditors in Singapore. The court can exercise its discretion to wind up a foreign company if it considers the company has a sufficient connection with Singapore. The company may be deemed to have sufficient connection if it has a registered or branch office, carries on business or has assets in Singapore and there is a reasonable possibility of benefit accruing to the creditors from the winding up.

Foreign companies are able to propose and implement schemes of arrangement. A foreign company may choose to do this in conjunction with concurrent restructuring proceedings taking place in its place of incorporation. A foreign company which intends to propose a scheme of arrangement in Singapore must first show that the Court has the jurisdiction to make a winding up order against that foreign company. Such jurisdiction to wind up a foreign company will only exist where it has assets in Singapore or has sufficient nexus or connection with Singapore.

It should also be noted that the judicial management regime is currently not available to foreign companies. However, once the 2017 amendments to the CA take effect, foreign debtors may apply for judicial management.

16. How are groups of companies treated on the restructuring or insolvency of one of more members of that group? Is there scope for cooperation between office holders?

Each company in the group is treated as a separate legal entity and separate insolvency proceedings must be commenced for each company. Unless the corporate veil can be pierced or where assets were transferred to other companies in order to defraud creditors, the creditors of a company can only claim against that particular company in its own insolvency proceedings.

Typically, the respective insolvency proceedings of the member companies to be heard before the same judge. In this manner, the related proceedings involving the various companies in the group can be dealt with by one presiding judge. In practice, the same office holders are usually appointed for the various entities in the group, unless there are conflicts of interest.

17. Is it a debtor or creditor friendly jurisdiction?

The early archetype of insolvency law in Singapore followed the traditional common law pro-creditor bias. In recent times, there has been a gradual trajectory towards creating a climate more conducive to corporate rescue.

18. Do sociopolitical factors give additional influence to certain stakeholders in restructurings or insolvencies in the jurisdiction (e.g. pressure around employees or pensions)? What role does the state play in relation to a distressed business (e.g. availability of state support)?

There is specific legislation that addresses the insolvency of certain institutions possessing some public interest element, for instance banks, insurance or insurance broking companies, securities exchanges or securities market, electricity licensees and railway licensees.

More generally, the Court also has the power to make a judicial management order where it considers that public interest so requires. To establish this, a decent chance of the company's survival alone is not enough. The threshold to be satisfied is whether a refusal to make a judicial management order will result in the collapse of the company whose failure will have a serious economic or social ramifications.

A court may exercise its discretion not to wind up an insolvent company on public interest
grounds.

19. What are the greatest barriers to efficient and effective restructurings and insolvencies in the jurisdiction? Are there any proposals for reform to counter any such barriers?

Singapore is currently ranked 29th out of 190 economies for Resolving Insolvency, according to the findings of Word Bank's annual "Doing Business" 2017 report. This study measures the efficiency of insolvency frameworks around the world. The indicators include the recovery rate and whether each economy has adopted internationally recognised good practices in the area of insolvency.

Also, a recent 2015 global study by South Square and Grant Thornton showed that Singapore was rated very highly as an effective jurisdiction for cross-border by insolvency practitioners who had direct experience in restructuring work here. However, practitioners with no direct experience rated Singapore less highly. There have been subsequent recommendations seeking to close the perception gap.

In 2011, the Singapore Government appointed an Insolvency Law Review Committee to review current insolvency legislation and to make recommendations. In 2013, the Committee submitted its recommendations to the Singapore Government.

Subsequently in the last quarter of 2016, the Singapore Ministry of Law held a public consultation on the proposed changes to the Singapore Companies Act to enhance Singapore's effectiveness as an international hub for debt restructuring. These game-changing amendments are aimed at modernising and significantly overhauling Singapore's restructuring and insolvency regime. The amendments include the adoption of the UNCITRAL Model Law and elements of US Chapter 11. In March 2017, the Singapore Government passed the Companies (Amendment) Bill 13/2017. It is envisaged that these amendments will come into effect by the second quarter of 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.