Singapore - Disputes Round Up 2023

As we come to the close of 2023, we briefly summarise key cases and enforcement decisions in Singapore. 

In technology matters:

• Crypto assets have been recognised as property.
• Companies must take active steps to protect personal data and prevent copyright infringement.
• Startup founders may seek pre-action production of documents to ascertain if they have a claim.

In contracts:

• A substance over form approach will be taken in deciding if a clause is an unenforceable penalty.
• Sanctions clauses will be strictly and objectively construed.
• Expectation damages are ordinarily the damages that may be claimed for contractual breaches.

In alternative dispute resolution:

• A foreign emergency arbitral award can be enforced in Singapore.
• Arbitration records are generally confidential, but not when the arbitration has already been publicised.
• The Court may compel parties to mediate.

1. Crypto assets have been recognised as property.

Building on earlier Singapore decisions reflecting the oft-expressed view in commonwealth jurisdictions that propriety relief (such as injunctions) may be granted for crypto assets, the Singapore High Court has recognised crypto assets as property capable of being held on trust in ByBit Fintech Limited v Ho Kai Xin and others [2023] SGHC 199. In concluding that USDT (a stablecoin commonly known as ‘Tether’) was property capable of being held on constructive trust, the Court held that “the holder of a crypto asset has in principle an incorporeal right of property recognisable by the common law as a thing in action and so enforceable in court”.

The Court’s reasoning suggests that the same conclusion would likely be reached for other types of crypto assets and other types of trusts. While the Court noted that a contractual right to redeem USDT may constitute an “additional thing in action that the holder of a USDT may have”, its presence was not “not necessary” to conclude that the right represented by USDT was itself a thing in action.

2. Companies must take active steps to protect personal data and prevent copyright infringement.

Two decisions by the Singapore High Court and the Personal Data Protection Commission demonstrate the importance of having active controls and processes to ensure that employees protect personal data and do not infringe copyrights.

In Re E-Commerce Enablers Pte Ltd [2023] SGPDPC 6, the Singapore Personal Data Protection Commission held that organisations cannot solely rely on their employees as a security arrangement to protect personal data. Organisations…