COVID-19: The Role of General Counsel (“GC”) in Managing

COVID-19: The Role of General Counsel (“GC”) in Managing the New Landscape

K. K. LimHead, Cybersecurity, Privacy and Data ProtectionHarry Elias Partnership LLPSingapore

Janice LeeForeign CounselHarry Elias Partnership LLPSingapore

Jeremy TanDirectorBerkeley Research Group (BRG)Singapore

Date: Friday, 21 August 2020

Time: 12pm – 1pm SGT

Francis GohHead, International ArbitrationHead, Private Client AdvisoryHarry Elias Partnership LLPSingapore

Stanley ParkManaging Director & Head of Legal APAC Scotiabank Singapore

Moderator

Harry E

lias P

artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

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Jeremy TanDirector

Berkeley Research Group (BRG) | Singapore

Jeremy Tan is a director in BRG’s Global Investigations + Strategic intelligence practice and is based in Singapore. He hasa decade of experience advising private companies, law firms, and governments. He has supervised and led theexecution of hundreds of investigative and intelligence gathering assignments in a multitude of industry sectorsincluding in-depth reputational due diligence, asset tracing, political risk analysis, and threat assessments. Many ofthese discreet undertakings have supported decision-making for market entry, green field investments, pre-initial publicoffering, mergers and acquisitions, litigation support, and business strategy.

Before joining BRG, Mr. Tan worked at a global consultancy firm, where he led the growth of the investigations andbusiness intelligence practice in Southeast Asia, particularly in Vietnam, Myanmar, and Indonesia. He also has deepexperience managing projects in other Asia–Pacific (APAC) countries, particularly China and India, and globally.

Earlier in his career, Mr. Tan served in the Singapore Government’s Prime Minister’s Office, where he was involved in theidentification and monitoring of emerging issues of political and strategic importance to Singapore and the wider APACregion. He routinely engaged senior government decision makers on scenario planning and strategy and explored theuse of data analytics, machine learning, and natural language processing in qualitative research.

Mr. Tan has an MA in politics and philosophy and is fluent in English and Chinese.

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I N T E L L I G E N C E T H A T W O R K SI N T E L L I G E N C E T H A T W O R K S

THINKBRG.COM

I N T E L L I G E N C E T H A T W O R K S

THINKBRG.COM

I N T E L L I G E N C E T H A T W O R K S

Opportunities & Business Intelligence in Southeast Asia

in the context of COVID-19

Harry E

lias P

artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC


COVID-19: Recap & Responses

– Driven governments across the world to implement social distancing or

institute waves of lockdowns

– Border closures, travel restrictions

– Huge government stimulus packages around the world amounting to

trillions of USD

– No exception in Southeast Asia, the region’s biggest economies have

major social welfare and business-oriented stimulus plans.

– Sharpened government and business attention, particularly in US and

Japan, on addressing dependence on China for production and supply

– Global Recession in FY 2020 – look towards and start planning for FY

2021

Harry E

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artne

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LLP &

Berk

eley R

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LLC


COVID-19 Hastened Developments Southeast Asia

• Southeast Asia had been attracting a rising volume of FDI in recent years, drawing increasing amount of money away from China as investors sought better margins.

Rising FDI

• Younger demographic and age pyramid, rapidly growing middle class, deepening regional integration, commitment to infrastructure development

Ideal Features

• Larger, more political, drivers for SEA as an investment alternative to China

Macro Political Drivers

New Normal is

Not That

Different:

COVID-19 hastened

certain investment

trends in the Asia

Pacific and Southeast

Asia. Developments

that would continue in

the post or constant

COVID-19 world.

Harry E

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LLP &

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roup,

LLC


Hard Numbers in Southeast Asia

Gains Stimulus Measures (as of June 2020)

- Combined GDP of ASEAN’s ten member states climbed

from USD 2.5 trillion in 2015 to USD 3 trillion in 2018

- The bloc’s economic growth has consistently outstripped

the global average

- Projected to be the world’s fourth-largest economy by

2030

- Southeast Asia became China’s largest trading partner

from January to June 2020 (14% of China’s overall trade)

- Indonesia: USD 76.4 billion

- Thailand: USD 58.04 billion

- Singapore: USD 42 billion

- Malaysia: USD 59.92 billion

Harry E

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Japan and China Remapping

Initiatives Impact for SEA

- In April, PM Shinzo Abe earmarked more than USD 2

billion to help companies move production away from

China (USD 536 million disbursed mid-July)

- China rapidly building new supply chains, productions

hubs, in SEA for access to technology and circumvent

import tariffs on Chinese produced goods

- Semiconductors have been a major contributor, with

shipments from ASEAN to China increasing 24% and

those from China to ASEAN increasing 29% for FY

2019

- Aim to shift the manufacturing of high added value

products back to Japan

- Production of goods to be diversified across Southeast

Asia. Countries of focus include:

- Indonesia

- Vietnam

- Myanmar

- Malaysia

- Singapore

Harry E

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LLP &

Berk

eley R

esea

rch G

roup,

LLC


Business Intelligence Essential in Southeast Asia

Challenges Some Key Questions

- Differing regulatory environments

- Authoritarian regimes and media restrictions

- Patchy record keeping

- Paucity of public disclosure

- Compliance risks

- Operational and logistic issues

- How your Subject’s reputation is perceived by business community members

and regulators. Is your Subject involved in any significant issues of concern

such as money-laundering, drug trafficking, bribery and corruption, criminal

activities, or other forms of anti-social behavior?

- What is the true financial standing of your Subject? Does your Subject suffer

from any undisclosed operational issues?

- Does your Subject have the means and commitment to fulfill its obligations?

- The nature and extent of your Subject’s political exposure, relationships, and

influence

- Local regulatory and political context

Harry E

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rship

LLP &

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eley R

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Framing an Iterative Process

1Human Dimensions

More Important than

Ever

2Business

Intelligence as

Roadmap

3Non-Traditional

Risks and

Resilience

Harry E

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artne

rship

LLP &

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eley R

esea

rch G

roup,

LLC


Harry E

lias P

artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

K. K. LimHead, Cybersecurity, Privacy and Data Protection

Harry Elias Partnership LLP | Singapore

KK heads the firm’s Cybersecurity, Privacy and Data Protection Practice Group.

He has more than 25 years of experience in technology advisory and commercial matters, with a focus inrepresenting clients and advising matters involving privacy and data protection, cybersecurity, mobilesecurity, audit and compliance advisory.

This includes technology investments due diligence. Apart from technology law, he is also involved in theemerging fields of cyber insurance and matters relating to the digital economy such as data governance,artificial intelligence and block chain.

His other practice areas include employment matters such as employment disputes, work injurycompensation and trust & private wealth management.

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LLP &

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The Business Challenge

Credit: McKinsey & Company 2020

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United Nations Conference on Trade & Development (UNCTAD) Sep 2019

Global Internet Protocol (IP) traffic Gigabyte Per Day

0

200000

400000

600000

800000

1000000

1200000

1400000

1600000

1992 2017 2022

Series 1

Series 1

100 GB (1992) 45,000 (2017) 150, 700 (GB) 2022

Harry E

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Trending on Data Management Regulations

• Heavy Penalties

• Right to claim compensation

• Extension to Processors - Data Intermediaries

• Mandatory Data Breach Reporting

• Transfers – Cross Border - Data Localization

• Resurgence of Ransom Ware , RDP, Email

Phishing, “Big Game Hunting”

Harry E

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LLP &

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eley R

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Asia Pacific

• 32,002 Incidents Reported /3950 APAC

• 63% - Financially Motivated

• (10 % - Espionage)

• Methods

• 74% - social engineering

• (email phishing , credential stuffing)

Credit: Verizon 2020 Harry E

lias P

artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

Summary : Key Policy

Amendments to PDPA

(2012)

1. Strengthening Accountability : Mandatory Data Breach Reporting

2. Enabling Meaningful Consent : Expanded Deemed Consent

3. Increasing Consumer Autonomy : Data Portability

4. Strengthening the Effectiveness of Enforcement: New Penalties

Harry E

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artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

Incident in Company is a data breach

Data Breach means

Unauthorised access, collection, use, copying, modification, or disposal of personal data

Loss of storage medium with personal data where (a) is likely to occur

Position of Data Intermediary

data breach discovered

Informed organization “without undue delay”

Data Breach Eligible for Notification

Result in or likely to result in:

“Significant” harm to individuals OR

500 > individuals

Categories of personal data likely to result in significant harm in Regulations

Assessment

Breach meets notification requirement (1)

Inform PDPC & Individuals

Need not informed affected individuals IF

Took remedial action/technological protection exception/or instructed by a

regulator/Commission

Breach meets notification requirements (2) Inform PDPC & Individuals

Report

Reporting

Individuals “ as soon as practicable”

PDPC “as soon as practicable and no less than 3 calendar days from assessment date.

Reporting exemptions – waiver – from PDPC

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Penalties

Proposed:

Up to 10% : Gross turnover of company >10 million whichever

is higher

Former Penalty: Up to 1 million

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Berk

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Free On Boarding Engagement Menu

• Preparation Phase (72 hours)

• Assessment Readiness (*$5,000 to $7,000 investment)

• Prepare Activation Plan

1. Fixed Fee for Engagement

2. Annual with roll – over for unused credit for legal services

3. Please contact us for further details

Mandatory Data Breach Readiness Plan

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LLP &

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Janice LeeForeign Counsel

Harry Elias Partnership LLP | Singapore

A multi-qualified international arbitration counsel, Janice represents clients in their cross-border

disputes involving commercial contracts, M&A, construction and energy. She is particularly well-

versed in SIAC and ICC arbitrations and specialises in complex, high-value disputes across multiple

jurisdictions. Prior to moving to Singapore, Janice practised for several years in the Philippines.

She has particular experience in dealing with Southeast Asian clients with respect to their

business concerns and regulatory needs, and representing multinational clients in commercial

and public interest disputes.

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rship

LLP &

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LLC

Post-COVID: GDPR Considerations for GCs

JANICE LEE

HARRY ELIAS PARTNERSHIP

Harry E

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artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

Data Privacy Issues during COVID-19 for GCs

▪ Remote working arrangements

▪ Increased risk of data breach

▪ Collection, use and disclosure of sensitive personal data (employees and third parties)

▪ Data sharing with government entities

Harry E

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LLP &

Berk

eley R

esea

rch G

roup,

LLC

General Data Protection Regulation (GDPR)

▪ EU Framework for Data Protection with extraterritorial application

▪ If you are a Singapore entity, the GDPR may apply to you if you are involved in:

▪ Processing of personal data of EU data subjects, and

▪ The processing relates to offering them goods and services or monitoring their behaviour in the EU

▪ Substantial penalties

▪ Administrative fines up to EUR 10 or 20 million, or up to 2% or 4% of worldwide annual turnover

▪ As of 20 August 2020, total of EUR 490 million worth of fines imposed

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LLP &

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General Overview of Data Breach Notification under the GDPR

Risk to people’s rights and freedoms?

BREACH

• High risk?

• Exceptions not applicable?

REPORTto Supervisory

Authority

72 hrs

• Remedial measures

• Documentation

NOTIFY

the Data Subject

ASAP

SG Proposed Amendment:

(a) results in significant harm

to affected individual; or

(b) affects more than the

minimum number prescribed.

SG Proposed

Amendment:

3 calendar days

SG Proposed Amendment:

Organisation must also notify,

on or after notifying the PDPC,

each affected individual

Harry E

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artne

rship

LLP &

Berk

eley R

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roup,

LLC

Recommendations for Organisations

▪ Understand your data and data flows

▪ Identify reporting lines

▪ Establish, test and implement procedures for notifying personal data breaches within 72 hours

▪ Establish, test and implement procedures for communicating personal data breaches to affected data subjects

▪ Ensure automatic documentation of all data breaches, which includes all relevant information

▪ Review processor contracts with processors to ensure that there are sufficient requirements for the processors to inform you of data breaches

▪ Train employees to respond to data breaches and handle communications with data subjects involved, supervisory authority, media and general public

Harry E

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LLP &

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The chief task in life is simply this: to identify and separate matters so that I can say clearly to myself which are externals not under my control, and which have to do with the choices I actually control. Where then do I look for good and evil? Not to uncontrollable externals, but within myself to the choices that are my own.

- EPICTETUS

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Francis GohHead, International ArbitrationHead, Private Client AdvisoryHarry Elias Partnership LLP | Singapore

Francis started his legal practice nearly 30 years ago as a disputes lawyer, advising SMEs, listed companiesand multinational corporations on their disputes resolution processes, handling litigation, arbitration andmediation cases. As a Certified Mediator accredited by the Singapore International Mediation Institute, theSingapore Mediation Centre and the Singapore International Mediation Centre, Francis is able to guideparties to manage and resolve their disputes in a time and cost efficient manner.

Building on the relationship with his clients, Francis guides them to manage risks and improve their legalprocesses to grow their businesses with confidence as well as advising them on personal estate planningand business succession matters including Lasting Powers of Attorney, Wills, Probate and Trusts. Francis hasbeen awarded the Advanced Certificate in Trust Services by the Wealth Management Institute of the NTUSingapore.

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POST-COVID AND THE LOOMING DISPUTES STORM

FRANCIS GOHHead, International Arbitration

Head, Private Client Advisory

Harry E

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artne

rship

LLP &

Berk

eley R

esea

rch G

roup,

LLC

COVID-19: CURRENT SITUATION

Countries have reacted to COVID-19 by enacting legislation

Singapore: COVID-19 Temporary Measures Act 2020

Temporary relief from certain contractual obligations

Suspension of certain court actions and domestic arbitrations

Urgent contractual issues faced by companies: force majeure, frustration of contracts

Expectation: Sharp rise in legal actions as temporary measures are relaxed

What are you doing now to prepare for and manage these disputes?

2

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LLC

POST-COVID: WHAT HAPPENS NEXT?

Litigation

Arbitration

Mediation

3

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HYBRID MEASURES: SIAC-SIMC ARB-MED-ARB PROTOCOL

A process where mediation is

attempted in the course of arbitral

proceedings

If the dispute is settled through

mediation, the mediated settlement

agreement may be recorded as a

consent award

4

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LLP &

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rch G

roup,

LLC

OTHER MEASURES: SIMC COVID-19 PROTOCOL

An expedited, economical and effective means for resolving disputes during the

COVID-19 period

Designed to complement COVID-19 legislation. Parties who enjoy relief under the

Temporary Measures Act can mediate at any time, even after an Assessor’s

determination

Key features:

Parties file for mediation via a request form and pay a S$250 filing fee

SIMC will organise the mediation within 10 working days

Parties will enjoy reduced fees based on dispute amount

Cases will be matched with experienced mediators to facilitate settlement

Mediation is conducted online

5

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POST-COVID: PREPARING TO RIDE THE STORM

Examining your contract

Gathering the evidence

Conducting due diligence

Managing the business relationship

Assessing your objectives

Conducting negotiations when desirable and necessary

Pressing the claim

Identifying and availing of interim measures to preserve assets 6

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Question & Answer SessionYou may submit your questions

through the Zoom Q&A button.

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K. K. Lim

Head, Cybersecurity,

Privacy and Data Protection

Harry Elias Partnership LLP

Singapore

E: [email protected]

T: +65 9456 6191

Janice Lee

Foreign Counsel


Singapore


T: +65 6361 9821

Jeremy Tan

Director

Berkeley Research Group

(BRG)

Singapore


T: +65 6407 1178

Francis Goh

Head, International Arbitration

Head, Private Client Advisory


Singapore


T: +65 6361 9835

Contact Details

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mailto:[email protected]




Documents

COVID-19: The Role of General Counsel (“GC”) in Managing