The latest Singaporean business to be affected by international sanctions is Emerging Towns & Cities Singapore (ETC), the developer of the Golden City complex in Myanmar. ETC has notified the Singapore Stock exchange (SGX) that it intends to divest itself of a build-operate-transfer agreement with the Myanmar Army’s Quartermaster General’s Office that was due to last 70 years and with profits in excess of $150 million. The decision was taken after a legal memo, drafted by barristers Dr Felicity Gerry QC and Daye Gang was filed with SGX by Myanmar activists: Justice For Myanmar. The memo set out the necessary risk assessments for the proposed investment, including the likelihood of breach of sanctions by funds from the project reaching the Military Junta, known as the Tatmadaw and labelled Terrorist organisation. The memo highlighted a number of business and human rights risks as well as the consequences of breach of U.S. and E.U. sanctions on Myanmar.  In addition to the ETC divestment, SGX is likely to change its approach to investment listing – progress in itself for a jurisdiction plagued by money laundering scandals. The legal memorandum found that international law and guidance places due diligence obligations on the Singapore Exchange (SGX), and possible liability on the Monetary Authority of Singapore and the Singapore Government, in relation to companies doing business with the Myanmar military. It also found that Singapore has an international legal obligation “to investigate, prevent and cease transactions that amount to wrongful acts”, which are applicable to business transactions with the Myanmar military and its business interests. Legal remedies would be “easily pursued and enforced” against SGX if the Myanmar military’s financial organs are found to be in breach of international laws and/or compliance regulations including international human rights and humanitarian law. SGX initiated regulatory actions against ETC after Justice For Myanmar published an investigation into payments to the Myanmar army, implicating funds raised on the SGX. ETC has commissioned two independent reviews: one by Nexia TS Advisory into contractual payments to the QMGO and fundraising; and another by Kelvin Chia Partnership into the applicability of sanctions and compliance with “applicable laws”.However, the legal memorandum found that these reviews may not address international law risks in light of the 2019 UN Independent International Fact-Finding Mission on Myanmar (FFMM) report into the Myanmar military’s economic interests, and ongoing atrocity crimes. The legal memo also raised the possibility of reputational and sanctions risks for the SGX, its regulator the Monetary Authority of Singapore, and by extension, the Singapore Government, should it not prevent continued payments from ETC to the Myanmar army. ETC suspended trading earlier this year and on 23 March 2022 it announced it was seeking to divest its investment in Myanmar via the sale of its entire shareholdings and to cease its activity in and exposure to the Myanmar market, asking SGX for an extension of time to find and offer and seek shareholders’ approval for the proposed divestment  Singapore has been the largest foreign investor in Myanmar since 2012, having invested more than US$24 billion (S$32.2 billion) between 1988 and January 2021. Activists supported by legal expertise on international business and human rights compliance see this as an example of effective pressure on Singapore companies to cut ties with the Myanmar military and its associated businesses to undermine the regime’s political legitimacy. Read more here  https://investor.etcsingapore.com/newsroom/20220323_174937_1C0_M06XNM7G9YJMBXIE.1.pdf

Felicity and junior Daye Gang were instructed by the Australian Centre for International Justice (ACIJ) on behalf of the Centre for Research on Multinational Corporations (SOMO) to consider the consequences of the sale of communications company Telenor Myanmar, a subsidiary of Telenor Group (Telenor), a Norwegian company where the Norwegian state has a majority shareholding, to Burmese company Shwe Byain Phyu through its initial sale to Lebanon-based M1 Group. The memo was delivered to both the CEOs and Boards of Directors of Telenor and M1 Group, to Norway’s Minister of Trade and Industry, and published publicly. The memo captures the business and human rights issues that arise for multinationals engaging and investing in telecommunications in Myanmar. Read more here https://www.somo.nl/norway-and-telenor-could-be-held-responsible-under-international-law-for-human-rights-abuses-resulting-from-myanmar-deal-legal-experts/

Felicity’s team set out to the ICC Appeal Chamber how the principle of non-punishment is recognised as relevant to non-prosecution and criminal responsibility for child soldiers and former child soldiers and how this fits within the Rome Statute. Felicity, speaking on behalf of the team, outlined how the process for identifying child soldiers and former child soldiers exists, not as a de novo appeal but as a review or protective process. She declined to comment on outcome but urged the court to adopt a legal framework to balance the two extremes for victims of atrocities and victim / perpetrators. Felicity was instructed by Philippa Southwell at Bird Solicitors. On 17 February 2022 Felicity’s PhD on the non-punishment principle was conferred. The team’s written amicus curiae observations are here https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1929 The recordings of the team observations on 14 and 15 February 2022 are here https://www.youtube.com/c/intlcriminalcourt/videos  

Felicity represented a woman on appeal 1414 days out of time having been convicted for possession of an identity document with improper intention. The conviction was quashed, and guidance was given on nine issues relating to the admissibility of the Single Competent Authority decisions, the consistency of previous decisions and the UK’s international obligations and European case law with regard to the protection of victims of trafficking, the scope of expert evidence on the question of trafficking and exploitation, the attendance and questioning of victims on appeal, the application of the power to stay proceedings as an abuse of process in this context, the definition of ‘compulsion’ and whether a victim of trafficking can seek to argue that a conviction following a guilty plea is unsafe. The appeal decision was handed down today by LORD JUSTICE FULFORD (VICE-PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)), MR JUSTICE JULIAN KNOWLES and SIR NIGEL DAVIS. The citation is AAD, AAH, AAI v Regina [2022] EWCA Crim 106. Felicity was instructed by Philippa Southwell at Birds Solicitors.

Welcome to 2022 and to the first edition of The Libertas Lens for the year. In this newsletter, we update you on two special appointments for our members, two expert insight articles, a host of latest news / case updates, and registration links for our February and March Webinars. To view the edition click here To register for Libertas Lens and ensure you never miss out on our news, events and free webinars follow this link or click Join our Newsletter in the footer below.

Gerard represented a 16-year-old girl charged with six serious offences contrary to the terrorism legislation. Some of the charges related to events when she was 14-years-old. The proceedings were before the Youth Court and heard by the Chief Magistrate.  Through analysis of the rapidly developing law following the Modern Slavery Act 2015 Gerard successfully argued that the trial should await the determination by the Single Competent Authority and subsequent review by the CPS. The CPS’ review resulted in the proceedings against Gerard’s client being discontinued.  This is the first case in which terrorism charges have been discontinued following the CPS’s review taking into account the conclusive grounds decision by the SCA. Gerard was instructed by Laura Cook at Elliot Mather Solicitors.   BBC: bbc.co.uk/news/uk-60132861 Telegraph: telegraph.co.uk/news/2022/01/27/terror-charge-against-girl-16-dropped-trafficking-victim

We are pleased to announce that Marie Spenwyn has been appointed a Recorder on the advice of the Lord Chancellor. She will sit in Crime on the South-Eastern Circuit. Marie Spenwyn is an established senior practitioner in crime who practises in substantial and serious cases nationally. Simon Csoka QC, head of chambers, said, “The Recorder contest is extremely difficult and competitive; it is an incredible achievement to get through each round and be appointed. This appointment is recognition of the hard work, skill, and talent of Marie together with the high regard in which she is held. We all congratulate her on this success.”

Felicity Gerry QC has given expert interviews on the Virginia Giuffre v Prince Andrew litigation this week on BBC Newsnight, Sky News, and on various BBC Breakfast shows. She was asked about Judge Kaplan’s ruling on the motion to dismiss and the next steps in the process. Broadly speaking she said the following: This was a ruling on a motion to dismiss which is an early method of stopping the case. The judge is bound by law to assume the allegations are correct and to consider whether (a) they are not too vague to proceed and (b) the agreement with Epstein on one interpretation is not binding. These issues were decided (a) as not vague enough to be thrown out early but that does not decide whether they will be successful at trial and (b) the application of the agreement can be interpreted as not binding but that will have to be decided at trial too. There will now be a timetable to trial which will include dates for discovery on both sides – VG will be asked for clarity and PA will be asked for details. This is a normal legal process and judges are often asked to decide if each party has complied so expect further hearings along the way. There are more legal arguments likely on jurisdiction (whether VG has sufficient connection with the US for the law to apply) and limitation (whether the time limit to bring a claim is validly extended). These are NOT technicalities but how the law works to be fair to all parties to litigation. On the BBC interview with Prince Andrew she said that often an interview given in relation to allegations will be admissible at trial. Clients often do not interview well but that does not necessarily mean they have done what is alleged. That will be decided on all the evidence. View the BBC iPlayer video here or by clicking the image below. The Prince Andrew story begins at 24 minutes and our very own Felicity Gerry QC appears from 27 minutes onwards. https://www.bbc.co.uk/iplayer/ Prince Andrew to face civil sex case – https://news.sky.com/ Virginia Giuffre ‘on campaign to expose evils of sexual abuse’, says lawyer: https://news.sky.com/