singapore law on assignment

The Government restricts bans on assignment

United Kingdom |  Publication |  November 2018

Legislation now in force preventing parties from prohibiting the assignment of receivables under certain contracts.

At the moment, a contract can prohibit or restrict the parties’ ability to assign or transfer rights created under the contract. The extent of the restriction is a matter of interpretation of the clause concerned. If one of the parties to the contract attempts to assign the benefit of the contract in breach of the restriction, the purported assignment is ineffective.

One of the key assets of any business is its receivables, and restrictions on assignment can prevent the parties from factoring receivables or otherwise raising finance on them. The Government has decided that it should be easier for businesses to raise finance on their receivables. Accordingly the Small Business, Enterprise and Employment Act 2015 allows regulations to be made to invalidate restrictions on the assignment of receivables in particular types of contract. The regulations have now been made. They are contained in The Business Contract Terms (Assignment of Receivables) Regulations 2018. Draft regulations published in July, have been approved by both Houses of Parliament and are now in force.

What types of contracts do the Regulations apply to?

The Regulations apply to contracts for the supply of goods, services or intangible assets under which the supplier is entitled to be paid money. But there are a number of important exclusions from their application, including the following:

• They only apply to contracts entered into on or after 31 December 2018.
• They only apply where the person who supplies the goods, services or intangible assets concerned, and is therefore entitled to the receivable, is a small or medium-sized enterprise which is not a special purpose vehicle. Whether or not an entity qualifies in any particular case requires a detailed examination of the precise wording of the
• Regulations. Counter-intuitively, the test is not applied at the time the contract is entered into, but at the time the assignment takes place.
• There is a specific exemption for contracts “for, or entered into in connection with, prescribed financial services”: These are widely defined to include “any service of a financial nature”.
• There are specific exclusions for particular types of contract, including certain commodities, project finance, energy, land, share purchase and business purchase contracts and operating leases.
• As a general rule, it would seem that the Regulations only apply to contracts governed by English law or the law of Northern Ireland, but they prevent the parties from choosing a foreign law if it can be established that the purpose of doing so was to evade the Regulations.
• The Regulations do not apply if none of the parties to the contract has entered into it in the course of carrying on a business in the United Kingdom.

What is the effect of the Regulations?

The Regulations provide that “a term in a contract has no effect to the extent that it prohibits or imposes a condition, or other restriction , on the assignment of a receivable arising under that contract or any other contract between the same parties.”

A receivable is the right to be paid any amount under a contract for the supply of goods, services, or intangible assets. The Regulations do not prevent the parties from restricting the assignment of other contract rights.

More difficult is to establish what is meant by assignment. Receivables are transferred in various ways in practice. Sometimes the transfer is outright (for instance by way of sale); and sometimes it is by way of security (for instance to secure a loan). The transfer may be effected by a statutory assignment, an equitable assignment, a charge or a trust. “Assignment” is not defined in the Regulations, and so there is some doubt as to which of these transactions are covered.

Although charges are not expressly referred to, they might be covered by the expression “assignment” if it is given a broad interpretation. But because of the uncertainty, the best course is to take an assignment by way of security over a receivable where there is, or might be, a restriction. That way, it is clear that the Regulations do apply.

Non-assignment clauses come in a variety of forms. They will be covered by the Regulations if they prohibit or impose a condition , or other restriction on the assignment of a receivable. The Regulations expressly invalidate terms which prevent the assignee from determining the validity or value of the receivable or their ability to enforce it. Whether or not the Regulations apply in any particular case will require an analysis of the precise terms of the restriction.

The Regulations will be of particular importance to businesses involved in the financing of receivables. And they will also be of concern to buyers because they will override their contractual protections.

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Assigning rights where a contract contains a non-assignment clause

December 13, 2023 > Singapore >

This article is produced by CMS Holborn Asia, a Formal Law Alliance between CMS Singapore and Holborn Law LLC.  

The High Court of Singapore has recently decided that a non-assignment clause in a contract did not prohibit the assignment of non-contractual (or tortious) rights arising out of or in connection with the contract. This article considers the practical implications of that decision.

Introduction

Can a party to a contract assign non-contractual rights arising out of the contract to a third party, notwithstanding the existence of a non-assignment clause in the contract?

The validity and enforceability of such an assignment were recently considered by the Singapore High Court (“HC”) in  Re Ocean Tankers (Pte) Ltd (in liquidation)  [2023] SGHC 330 (“ Ocean Tankers ”).

Contractual vs non-contractual rights

First, it is useful to understand the difference between “contractual” rights and “non-contractual” (or “tortious”) rights.  We will use the terms “non-contractual” and “tortious” interchangeably in this article to refer to the latter category of rights.

“Contractual” rights are rights which are set out in the provisions of the contract, reflecting the express agreement of the parties to the contract. Conversely, “non-contractual” rights are rights which arise as a matter of law and which are connected with (or which arise from) that contract, but are not specifically provided for in the text of a contract.

Ocean Tankers (Pte) Ltd (the “ Company ”) was placed under judicial management in August 2020. In the interim period between Company’s judicial management and its subsequent winding-up, the judicial managers of the Company (the “ JMs ”) brought actions concerning purported assignments of claims made by a creditor of the Company (the “ Assignor ”) in favour of a third-party debtor of the Company (the “ Debtor ”).

One of the issues the HC had to consider concerned the validity of an assignment of non-contractual claims made by the Assignor in favour of the Debtor, and whether that assignment was enforceable against the Company.

The assignment in question sought to assign the Assignor’s rights, title, interests and benefits in and to (amongst other things):

• a storage agreement (the “ Storage Agreement ”) made between the Assignor and the Company;
• a document (the “ Document ”) issued by the Company evidencing the existence and transfer of certain cargo; and
• any and all causes of action the Assignor had or may have had against the Company in connection with or arising from (amongst other things) the Document.

As indicated above, there were various assignments which were purported to be made by the Assignor which were being challenged by the Company.  However, for the purposes of this article, the salient assignment was the purported assignment of the Assignor’s causes of action against the Company in connection with or arising from the Document, as referred to in paragraph (3) above (which the HC referred to as the “ Vessel [B] Document Claim ”).

The court had to consider if the assignment of the Vessel [B] Document Claim was valid in light of the non-assignment clause set out in the Storage Agreement (the “ Non-Assignment Clause ”).  The HC held that the Document was “not separate and independent from the Storage Agreement”, implying that the Document was subject to the provisions of the Storage Agreement, including the restrictions on assignment set out in the Non-Assignment Clause.

Did the assignment of the Vessel [B] Document Claim breach the Non-Assignment Clause?

The Non-Assignment Clause was in the following terms:

The HC noted that the text of the Non-Assignment Clause required the Company’s consent for the assignment and novation of rights under the Storage Agreement (and, by extension, the Document), and the parties did not dispute that no such consent was obtained.

The HC was of the view that there were “ clear indications in the  [Non-Assignment Clause]  itself that it relates to contractual rights but not tortious rights ”. Three reasons were given by the HC in reaching this conclusion.

First, the Non-Assignment Clause referred to “novation”, which the HC noted is a process “ by which a  contract  between the original contracting parties is discharged through mutual consent and substituted with a new contract between the new parties ”. In the HC’s view, when the Non-Assignment Clause referred to the novation of “rights and obligations”, this must be understood to mean  contractual  rights and obligations, and the Non-Assignment Clause did not prohibit the assignment or novation of  tortious  rights and obligations.

Second, the heading of the Non-Assignment Clause – “TRANSFER OR ASSIGNMENT OF  AGREEMENT ” (emphasis added) – indicated the intention of the parties for the clause to cover only contractual rights.

Third, the HC noted that the Storage Agreement itself referred to rights other than contractual rights. For example, the Storage Agreement made references to claims “ in tort , under contract or otherwise at law” as well as obligations or liabilities “under or   arising  from [the Storage] Agreement or at law”. The HC was accordingly of the view that the Assignor and the Company (i.e., the original parties to the Storage Agreement) intended to refer specifically to  contractual  rights and obligations where the Non-Assignment Clause specifically referred to rights “under” the Agreement.

On the facts, the HC found that the assignment of the Vessel [B] Document Claim was a tortious claim and, consequently, held that the assignment of the Vessel [B] Document Claim was outside the ambit of, and did not breach, the Non-Assignment Clause.

In reaching its conclusion, the HC considered the judgment of the English High Court in  Burleigh House (PTC) Ltd v Irwin Mitchell LLP  (“ Burleigh House ”) [1]   which held that the non-assignment clause in that case prohibited both assignments of contractual  and  tortious rights.  However, the HC declined to follow  Burleigh House  for the following reasons:

• first,  Burleigh House  concerned assignments in the context of a former client’s claim against a law firm for professional negligence. The HC was of the view that the implications that such an assignment would have on the solicitor-client relationship were a significant consideration for the English High Court in its interpretation of the non-assignment clause in the law firm’s retainer. The HC was quite clear that this concern did not apply in the context of the case before it and, accordingly, distinguished  Burleigh House ;
• second,  Burleigh House  sought to apply the approach taken towards the construction of  arbitration  clauses, as set out in  Fiona Trust & Holding Corp v Privalov [2]  (“ Fiona Trust ”). That case held that rational businesspeople who agree to such clauses, regardless of whether they refer to disputes “arising under”, “in connection with” or “under” a contract, intend  any   dispute  arising out of their relationship to be decided by the same tribunal. While noting that  Fiona Trust  had been found by the Singapore Court of Appeal to apply to jurisdiction clauses generally [3] , the HC did not agree that the approach towards the interpretation of arbitration clauses as set out in  Fiona Trust  should  ipso facto  apply to other clauses in a contract or to non-assignment clauses generally. In the HC’s view, a non-assignment clause is not a dispute resolution clause and is intended to perform a very different function.

Implications for the drafting of non-assignment clauses

Ocean Tankers  illustrates the potential limits of a non-assignment clause under Singapore law and provides valuable guidance as to what type of rights and obligations parties can assign – or can prohibit the assignment of.

The judgment does, however, indicate that appropriate drafting  can  extend non-assignment clauses to prohibit or restrict the transfer of non-contractual rights. Such a prohibition on the assignment of non-contractual rights would work in tandem with the prohibition of an assignment of contractual rights under the agreement, such that  any  rights related to the agreement can be prevented from being assigned.

Ocean Tankers  has practical implications. For example, some industry standard form documents use language which is similar to that of the Non-Assignment Clause, in prohibiting assignments of rights or obligations “under” certain specifically identified documents.  Ocean Tankers  indicates that a Singapore court would construe this as applying only to contractual rights, and not to non-contractual/tortious ones.

Prior to  Ocean Tankers , parties to a contract would not have considered that such a clause would treat contractual and non-contractual rights differently and would have assumed that such drafting would apply to both categories of rights; there now appears to be a need to re-look and re-draft these clauses to reflect the contracting parties’ intentions.

Having expended considerable effort to explain why the assignment of the Vessel [B] Document Claim did not breach the provisions of the Non-Assignment Clause, the HC ultimately found that the assignment of the Vessel [B] Document Claim was a “ champertous assignment of a bare right to litigate and therefore void and/or ineffective against the Company, the JMs and the liquidators  [of the Company]”.

This, however, does not have any bearing on (and should not distract us from) the HC’s conclusion that the Non-Assignment Clause did not prohibit the assignment of non-contractual rights.

Link to the full article: Assigning rights where a contract contains a non-assignment clause (cms-lawnow.com)

Co-authored by: Kerith Cheriyan, Practice Trainee, Holborn Law LLC

[1]   Burleigh House (PTC) Ltd v Irwin Mitchell LLP  [2021] EWHC 834

[2]   Fiona Trust & Holding Corp v Privalov  [2007] Bus LR 1719

[3]   Bunge SA and another v Shrikant Bhasi and other appeals  [2020] 2 SLR 1223

More from CMS

Assignment and Novation Difference

Published on 13th August, 2016 by Benjamin Li Yong Le

Many people even lawyers are confused by the difference between assignment and novation. This article will discuss and clarify any doubts between the two legal concepts.

Everyday I see people "assigning" contracts and other rights without knowing what assignment entails. Today I will discuss what an assignment actually is and whether novation should be a more appropriate option.

An assignment involves the transfer of an interest or benefit from one person (“Assignor”) to another (“Assignee”). However, the “burden”, or obligations, under a contract cannot be transferred.

Thus, an assignment usually applies to assignments of tenancies or debts whereby the Assignor still retains responsibility of the contractual obligations, and only gives away the benefits.

The Assignor still owes obligations to the other contracting party, and will remain liable to perform any part of the contract that still has to be fulfilled since the burden cannot be assigned.

In practice, what usually happens is that the assignee takes over the performance of the contract with effect from assignment and the assignor will generally ask to be indemnified (contractual obligation whereby one party agrees to pay any losses or damage suffered by the other party) against any breach or failure to perform by the assignee. The assignor will remain liable for any past liabilities incurred before the assignment.

Usually when people say they want to "assign" something, they are actually referring to the concept of novation.

Novation is a legal mechanism whereby one party can transfer ALL its obligations under a contract and ALL its benefits arising from that contract to a third party. The third party effectively replaces the original party as a party to the contract. A novation requires the agreement of all THREE parties involved - the assignor, the assignee and the third party to whom the rights are being transferred.

About the Author - Benjamin Li Yong Le

Benjamin Li Yong Le (“Ben”), is an Advocate & Solicitor of the Supreme Court of Singapore. Ben is currently running his own boutique corporate and commercial law firm under the name and style of L’Avocat Law.

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Singapore Prohibition Against Assignment Of Receivables – A Charge As An Alternative?

October 26, 2018 by Conventus Law

26 October, 2018

Jurong Aromatics Corp Pte Ltd (receivers and managers appointed) and others v BP Singapore Pte Ltd and another matter [2018] SGHC 215 (“Jurong Aromatics”)

The Singapore High Court recently considered the effect of a prohibition against assignment clause on assets subject to a charge. The decision confirms that, while such a prohibition is effective to prevent an assignment of assets, it did not restrict a charge on the asset.

The High Court also held that there was no required mutuality of debts for insolvent set- off to occur, if the debt was charged to another party.

Facts of Jurong Aromatics

The joint venture Jurong Aromatics Corporation (“JAC”) was tasked with the development of the Jurong Aromatics Plant on Jurong Island (“Plant”). Glencore Singapore Pte Ltd (“Glencore”) and BP Singapore Pte Ltd (“BP”) were suppliers to JAC under their respective feedstock supply agreements, and also customers of JAC under their respective product offtake agreements. Glencore also entered into an agreement with JAC, to set-off Glencore and JAC’s mutual claims (“Set-Off Agreement”) under their feedstock supply agreement and product offtake agreement.

JAC was financed by a syndicate of banks and financial institutions (“Senior Lenders”), whose loans to JAC were secured by way of a debenture entered between JAC and the Senior Lenders’ security agent, BNP Paribas Singapore Branch (“BNP Paribas”), comprising:

(a)  a first fixed charge over JAC’s present and future book debts; and

(b)  a first floating charge over all of JAC’s present and future assets.

There was also an assignment between JAC and BNP Paribas, under which receivables payable to JAC under the Glencore feedstock supply agreement and product offtake agreement (among other agreements) were assigned to the Senior Lenders.

Subsequently, when JAC encountered financial difficulties, receivers and managers were appointed by BNP Paribas, who took control of and managed the assets of JAC. Thereafter, JAC entered into a tolling agreement (“Tolling Agreement”) with the defendants, to enable the Plant’s operations to resume while a buyer was sought. When a buyer, ExxonMobil Asia Pacific Pte Ltd, was found, it entered into respective agreements with JAC and the defendants (“Transition Agreement” and “Transitional Supplemental Agreement”) to enable the Plant to be sold without shutting it down. The Tolling Agreement, Transition Agreement and Set-Off Agreement contained prohibition against assignment clauses.

JAC, with its receivers and managers, then sought to claim the charged receivables due from Glencore and BP (collectively the “Defendants”). The Defendants sought to set-off these claimed amounts against debts owed by JAC under their respective feedstock supply agreements with JAC (“feedstock debt”).

Apart from the High Court’s statements on the nature of a charge and decrystallisation, its findings on the following issues are particularly noteworthy:

(a) does a prohibition against assignment clause preclude a charge?;

(b) what is the impact of a prohibition against assignment clause on an encumbrance created before the prohibition, and on an encumbrance created after the prohibition?; and

(c) is there a right of insolvent set-off against debts which are charged?

On the first issue, the High Court confirmed that a contractual prohibition against assignment of assets did not, on its own, prevent a party from taking a charge over these assets, subject to the actual text of the prohibition and contrary intentions of parties in the context of the transaction. As the plain meaning of the prohibitions did not preclude a charge, and there was insufficient evidence that parties intended for charges to fall within the prohibitions, the fixed charge and crystallised floating charge held by the Senior Lenders were not precluded by the prohibitions.

On the second issue, it appears that even if a prohibition were construed to cover a charge, it would only affect encumbrances created after the prohibition, and not the ones already operating against the asset. In Jurong Aromatics, the charges were already operational by the time the prohibition came into being – as soon as the receivables were due to JAC, they were subject to the fixed charge and crystallised floating charge; there was no point at which the prohibition could operate. The receivables which arose out of the Tolling Agreement (“tolling fee debt”), Transitional Supplemental Agreement (“final payment amount debt”) and Set-Off Agreement (“Set- Off Agreement debt”), which were concluded subsequent to the debenture, were already caught by the fixed charge and crystallised floating charge, which were expressed to include future assets of JAC.

On the third issue, the High Court held that there was no required mutuality of debts for insolvent set-off to occur if the debt was charged to another party. The Defendants did not have a right to set-off against the charged assets (ie the tolling fee debt, the final payment amount debt, and the Set-Off Agreement debt) as the mutuality requirement of insolvent set-off was not satisfied – the Defendants’ claims (ie the feedstock debt) were qua JAC, whereas the equitable interest of the charged assets (against which the feedstock debt was sought to be set-off) lay with the Senior Lenders (qua debenture holders of JAC’s assets).

Jurong Aromatics confirms that a prohibition against assignment clause did not, on its own, restrict the creation of security by way of a charge over those assets. While an assignment is a stronger form of security compared to a charge, the charge is still a security interest which will improve the position of the lender, especially in an insolvency.

Further, while Jurong Aromatics suggests that a prohibition against assignment clause affects only encumbrances created after the prohibition, lenders would do well to exercise caution, and give effect to the prohibition whether or not it came before or after creation of the security.

Finally, the High Court did not find that there was the required mutuality of debts for insolvent set-off to occur, as the debt was charged to another party. This is a curious angle, given that the High Court recognised that a charge, unlike an assignment, did not transfer ownership rights in an asset, but vested beneficial interest of the asset to the satisfaction of a debt. Based on the reasoning of Jurong Aromatics, vesting of such equitable interest in the debt by way of a charge (and not transfer of ownership by way of an assignment) was sufficient to destroy mutuality of debts required for insolvent set-off to occur. While this finding would be welcomed by lenders, as a charge may now potentially shield debts from insolvent set-off, it bears noting that this proposition remains to be tested in the Court of Appeal. 

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On March 12, 2024, the Judicial Conference of the United States  announced new guidance  applying to case assignments in federal district courts, with the intent to curb “judge-shopping” by limiting litigants’ ability to pre-select a specific judge by filing in a division where only a single judge sits. Officially titled  Guidance for Civil Case Assignments in District Courts , the new guidance recommends that courts randomly assign certain civil actions to any judge within a district rather than only the judge(s) in the division where the case is filed.

Under the guidance, district courts are encouraged to apply district-wide assignment to all civil actions that seek to bar or mandate statewide enforcement of a state law or the nationwide enforcement federal law, including a rule, regulation, policy, or order of the executive branch, a state agency, or a federal agency. The guidance includes all civil actions seeking declaratory judgment and/or any form of injunctive relief, but it does not currently apply to criminal and bankruptcy cases. 

In recent years, concerns about litigants intentionally selecting preferred judges based on their perceived leanings, abilities, or positions on legal issues that could have a nationwide impact have gained national prominence as litigants on divisive issues such as abortion medication challenges, environmental issues, and immigration policies have commenced their actions in specific single-judge divisions. 

It is currently unclear how district courts across the United States will interpret and implement the guidance, if at all. This guidance does not have the force of law as do general rules of practice and procedure or rules of evidence that have been passed pursuant to the rulemaking function under the Rules Enabling Act, 28 U.S.C. § 2071-2077. The guidance requests that courts “consider incorporating case assignment practices into rules and orders as opposed to internal plans or policies,” to promote transparency and public confidence in the case assignment process. Practically speaking, any such changes will likely only significantly impact divisions where only a single judge sits. Moreover, district courts opting to adopt measures pursuant to the guidance, and disclose their revised case assignment policies, will need time to update their official rules and orders.

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