Clause 40

In this Part —“business trust”, “trustee-manager” and “unitholder” have the meanings given by section 2 of the Business Trusts Act 2004;“corporation” has the meaning given by section 4(1) of the Companies Act 1967;“designated operating entity”, “entity” and “licensed service” have the meanings given by section 86A(1);“designated licensee” means a licensee that has been designated under section 88 as a designated licensee;“effective designation date”, in relation to a designated operating entity, means the date specified under section 86D(3) as the date on which the designation of that entity as a designated operating entity takes effect;“licensee” means the holder of any licence issued by the Authority under any written law;“limited liability partnership” has the meaning given by section 2(1) of the Limited Liability Partnerships Act 2005;“relevant entity” means a designated licensee or a designated operating entity;“unregistered company” has the meaning given by section 245(1) of the Insolvency, Restructuring and Dissolution Act 2018.(2) In this Part —

a reference to the affairs, business, undertaking, operations or activities of a relevant entity that is a business trust is to the affairs, business, undertaking, operations or activities carried on by the trustee‑manager of the business trust on behalf of the business trust; and

a reference to the obligations of a relevant entity that is a business trust is to the obligations undertaken by the trustee-manager of the business trust on behalf of the business trust.Designation of designated licensees for this Part

A special administration order is an order of the Minister made in relation to a relevant entity in accordance with section 89A, directing that during the period the order is in force, the affairs, business and property of that entity are to be managed by a person appointed by the Minister which may be the Authority (called in this Part an appointed person) —

for securing one or more of the purposes specified in subsection (2); and

in a manner that protects the interests of the shareholders, unitholders or beneficiaries (as the case may be), and the customers and creditors, of the relevant entity.(2) For the purposes of subsection (1)(a), the purposes are —

in the case of a relevant entity that is a designated licensee — the security and reliability of the business, undertaking or activities of the relevant entity in Singapore of providing any licensed service;

in the case of a relevant entity that is a designated operating entity — the security and reliability of the business, undertaking or activities of the relevant entity in Singapore of providing any essential transport service;

the survival of the relevant entity or the whole or any part of the business or undertaking of the relevant entity, as a going concern;

the transfer to another person, or (as respects different parts of its business or undertaking) to 2 or more different persons, as a going concern, of so much of the business or undertaking of the relevant entity as is necessary to ensure that the following may be properly carried out:

in the case of a relevant entity that is a designated licensee — the obligations of the entity in carrying out its business, undertaking or activities of providing any licensed service;

in the case of a relevant entity that is a designated operating entity — the obligations of the entity in carrying out its business, undertaking or activities of providing any essential transport service; and

the carrying out of the obligations of the relevant entity mentioned in paragraph (d)(i) or (ii) (whichever is applicable) pending the transfer, as a going concern, of the entity’s business, undertaking or activities mentioned in paragraph (d)(i) or (ii) (as the case may be) to any other person or persons.Power to make special administration order and other orders89A.—

If, on an application made to the Minister by the Authority, the Minister is satisfied that any one or more of the grounds specified in subsection (2) are satisfied in relation to that relevant entity, the Minister may make any one or more of the following orders:

a special administration order in relation to the relevant entity;

an order requiring —

the relevant entity; or

in the case of a relevant entity that is a business trust — the trustee‑manager of the business trust,to immediately take any action or to do or not do any act or thing where the Minister considers that the action or the doing or not doing of that act or thing is necessary for —

in the case of a relevant entity that is a designated licensee — the business, undertaking or activities of the entity of providing any licensed service; or

in the case of a relevant entity that is a designated operating entity — the business, undertaking or activities of the entity of providing any essential transport service;

an order appointing a person (called in this Part an advisor) to advise —

the relevant entity; or

in the case of a relevant entity that is a business trust — the trustee‑manager of the business trust,in the proper conduct of the business, undertaking or activities of the relevant entity mentioned in paragraph (b)(iii) or (iv), whichever is applicable.(2) For the purposes of subsection (1), the grounds specified are the following:

in the case of a relevant entity that is a designated licensee — there has been, is or is likely to be a contravention by the relevant entity of the conditions of its licence or this Act that is serious enough to make it inappropriate for the entity to continue to provide the service or facility under the licence;

the Minister considers it to be in the interest of the security and reliability of the carrying on of the business, undertaking or activities of the relevant entity relating to —

in the case of a relevant entity that is a designated licensee — the provision of any licensed service by the entity; or

in the case of a relevant entity that is a designated operating entity — the provision of any essential transport service by the entity;

the relevant entity is or is likely to be unable to pay its debts;

the Minister considers it in the public interest.(3) No special administration order may be made under this Part in relation to a relevant entity that is a designated operating entity before its effective designation date.(4) Subsection (3) does not apply in relation to a relevant entity which, immediately before its designation as a designated operating entity under section 86D, is a designated licensee.(5) Notice of any order under subsection (1) must be given immediately by the Minister to such persons and in such manner as may be determined by the Minister.(6) The Minister may make a special administration order in relation to a relevant entity despite the commencement of (as applicable) —

any proceedings relating to the making of an order under section 210 of the Companies Act 1967 or section 71 of the Insolvency, Restructuring and Dissolution Act 2018 in relation to the relevant entity, being a corporation;

any proceedings relating to the making of a judicial management order under Part 7 of the Insolvency, Restructuring and Dissolution Act 2018 in relation to the relevant entity, being a corporation;

any meeting convened under section 94(7) of the Insolvency, Restructuring and Dissolution Act 2018 in respect of the relevant entity, being a corporation;

any proceedings under the Insolvency, Restructuring and Dissolution Act 2018 relating to the winding up of the affairs of the relevant entity, being a company or an unregistered company;

any proceedings under the Limited Liability Partnerships Act 2005 relating to the winding up of the affairs of the relevant entity, being a limited liability partnership; or

any proceedings before any court for the dissolution, winding up or termination (as the case may be) of the relevant entity, being an entity not mentioned in paragraph (d) or (e).(7) For the purposes of this section, a relevant entity is unable to pay its debts if —

a creditor (by assignment or otherwise) to whom the entity is indebted in a sum exceeding the sum mentioned in section 125(2)(a) of the Insolvency, Restructuring and Dissolution Act 2018 then due has served on the entity, by leaving at the registered office of the entity, a written demand by the creditor or the creditor’s lawfully authorised agent requiring the entity to pay the sum so due, and the entity has for 3 weeks after the service of the demand neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;

an enforcement order or other process issued to enforce a judgment, decree or order of any court in favour of a creditor of the entity is returned unsatisfied in whole or in part; or

it is proved to the satisfaction of the General Division of the High Court that the entity is unable to pay its debts.Ancillary directions, etc., when special administration order, etc., is made89B.—

A special administration order under this Part may specify that —

the appointed person has such functions and powers in relation to the operations of the relevant entity as are specified in the order;

the relevant entity or, in the case of a relevant entity that is a business trust, its trustee-manager, is to stop providing a specified service or facility from a specified date; and

the appointed person must have access to, and take control of, the property (including intellectual property), licences and employees used or required by the relevant entity or, if the relevant entity is a business trust, its trustee‑manager, for the purposes of carrying on the operations of the relevant entity as are specified in the order.(2) A special administration order under this Part may also contain ancillary directions that may —

direct how the costs of the operations specified in the order and revenue generated from those operations, are to be dealt with;

fix the remuneration and expenses to be paid by the relevant entity or trustee‑manager to the appointed person;

specify the period for which the order under this section applies; and

specify any other conditions that may apply.(3) An order under section 89A(1)(c) may also contain an ancillary direction that fixes the remuneration and expenses to be paid by the relevant entity or trustee‑manager to the advisor.Effect of special administration order and other orders89C.—

Any decision of the Minister under section 89A(1) is final.(2) A special administration order operates to the exclusion of rights that are inconsistent with the order.(3) Nothing in Part 12 or 12A applies to prohibit or invalidate any special administration order or other order made under this Part or any transaction entered into to give effect to such an order.Duties of relevant entity or trustee-manager, etc.89D.—

The relevant entity that is the subject of a special administration order under this Part or, in the case of such a relevant entity that is a business trust, its trustee‑manager —

must facilitate the handover of the operations to the appointed person as specified in the order;

must not obstruct the appointed person’s access to property or the exercise by the appointed person of the appointed person’s responsibilities under or pursuant to the special administration order; and

must comply with reasonable directions given by the appointed person in the exercise of the appointed person’s responsibilities under or pursuant to the special administration order.(2) The relevant entity or trustee‑manager which fails to comply with subsection (1) or an order under section 89A(1)(b) shall be guilty of an offence.Transfer of property, etc., under special administration order made under this Part89E.—

Without limiting sections 89, 89A and 89B, a special administration order under this Part may provide for the following matters:

the transfer to one or more prescribed transferees (which may or may not be the appointed person) of the following (whichever is applicable):

the property, rights and liabilities of a relevant entity;

in the case of a relevant entity that is a business trust — the property of the business trust, and the rights held and the liabilities incurred by the trustee‑manager of the business trust in its capacity as trustee‑manager of the business trust;

matters that are consequential or related to any such transfer.(2) If the Minister makes a special administration order providing for any matter mentioned in subsection (1), the Minister must, by notification in the Gazette, establish a scheme within the following period for determining the amount of any compensation payable by the prescribed transferee to the relevant entity or the trustee‑manager or unitholders of the business trust (as the case may be) for the transfer of the property, rights and liabilities:

6 months after the date of the making of the special administration order;

any longer period after the date of the making of the special administration order, as agreed between the prescribed transferee and the relevant entity or trustee‑manager.(3) A scheme established under subsection (2) may provide for —

the manner in which any compensation or consideration is to be assessed, including methods of calculation, valuation dates and matters to be taken into account or disregarded when making valuations;

the assessment to be made by an independent valuer appointed by the Minister; and

the remuneration and expenses of the independent valuer.(4) In this section, “prescribed transferee” means the Authority or a person nominated by the Minister.Restrictions on voluntary winding up, etc., of relevant entities89F.—

Despite any other written law —

a relevant entity that is a corporation or limited liability partnership cannot be wound up voluntarily without the consent of the Authority;

a relevant entity that is a partnership cannot be dissolved —

by a partner giving notice to the other partner or partners (as the case may be) of the partner’s intention to dissolve the partnership; or

by the partners agreeing to dissolve the partnership,without the consent of the Authority;

a relevant entity that is a business trust cannot be wound up voluntarily without the consent of the Authority;

a person must not make any application under section 210 of the Companies Act 1967 or section 71 of the Insolvency, Restructuring and Dissolution Act 2018 in relation to a relevant entity that is a corporation, unless that person has served 14 days’ notice in writing of that person’s intention to make that application on the Authority;

no judicial management order under Part 7 of the Insolvency, Restructuring and Dissolution Act 2018 may be made in relation to a relevant entity that is a corporation without the consent of the Authority;

no interim judicial manager or judicial manager may be appointed under section 94 of the Insolvency, Restructuring and Dissolution Act 2018 in respect of a relevant entity that is a corporation without the consent of the Authority;

a person must not take any step to enforce any security over —

the property of a relevant entity; or

in the case of a relevant entity that is a business trust — the trust property of the trust,unless that person has served 14 days’ notice in writing of that person’s intention to take that step on the Authority; and

a person must not take any step to execute or enforce any judgment or order of court obtained against a relevant entity unless that person has served 14 days’ notice in writing of that person’s intention to take that step on the Authority.(2) The Authority must be a party to —

any proceedings relating to the making of an order under section 210 of the Companies Act 1967 or section 71 of the Insolvency, Restructuring and Dissolution Act 2018 in relation to a relevant entity that is a corporation;

any proceedings relating to the making of a judicial management order under Part 7 of the Insolvency, Restructuring and Dissolution Act 2018 in relation to a relevant entity that is a corporation;

any proceedings under the Insolvency, Restructuring and Dissolution Act 2018 relating to the winding up of the affairs of a relevant entity that is a company or an unregistered company;

any proceedings under the Limited Liability Partnerships Act 2005 relating to the winding up of the affairs of a relevant entity that is a limited liability partnership; and

any proceedings before any court for the dissolution, winding up or termination (as the case may be) of any relevant entity that is an entity not mentioned in paragraph (c) or (d).(3) A court must, when deciding any proceedings mentioned in subsection (2), take into consideration any representations made by the Authority in those proceedings.Regulations for this Part89G. The Minister may make regulations for giving effect to this Part, including —

regulations governing the transfer of property, rights and liabilities of or in relation to a relevant entity mentioned in section 89E(1)(a) and matters consequential or related to such transfer; and

if a special administration order is made, regulations for applying, omitting or modifying the provisions of Parts 7 and 9 of the Insolvency, Restructuring and Dissolution Act 2018.”.