In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

Keith Wong and Choo Qian Ke

As a regional hub, Singapore remains an attractive location for both home-grown and international law firms. It comes as no surprise that RHTLaw Taylor Wessing has carved out a noticeable niche for itself in the Singapore market. As a law firm that delivers international capabilities with a network of more than 3300 legal professionals across 27 jurisdictions in Asia, the Middle East, Europe and the United States, the firm’s model is driven by its focus on helping clients succeed. RHTLaw Taylor Wessing’s ability to cater to the international needs of its clients is accentuated by its access to a wealth of international resources from the firm’s membership of the Interlex Group and the ASEAN Plus Group. For clients, RHTLaw Taylor Wessing provides a one-stop solution by operating as a single unit while delivering multi-jurisdictional and multi-disciplinary representation on complex transactions.

From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

RHTLaw Taylor Wessing offers a diverse range of tailor-made services. One example is the firm’s deep understanding of philanthropy as evidenced by its experience advising a suite of non-governmental organisations, international charitable organisations, charities and institutions of public character. In the same vein, RHTLaw Taylor Wessing is particularly established in the private-wealth sector, with particular expertise in advising entrepreneurs and business owners. The firm’s strong emphasis on issues of interest to clients, including an appreciation of art, reflects the firm’s commitment to understanding its client base. The result is a holistic Art Law Practice comprising lawyers who are passionate about the arts and armed with practical experience in dealing with the art world. With a suite of services in art financing, legacy planning and philanthropy, it comes as no surprise that RHTLaw Taylor Wessing’s achievements were recognised at the WealthBriefingAsia Awards 2018.

To better understand this sector, the Singapore Law Review spoke with Mr. Benjamin Szeto, partner and Deputy Head of RHTLaw Taylor Wessing’s private wealth industry group.

As a Registered Trust and Estate Practitioner of the Society of Trust and Estate Practitioners and an author for LexisNexis Practical Guidance Singapore on Trusts, Mr. Szeto has over 20 years of experience advising High Net Worth Individuals (“HNWIs”), entrepreneurs, financial institutions, listed entities and Fortune 500 corporations on a wide range of transactions. In the private wealth industry group, Mr. Szeto designs bespoke solutions, structures and strategies to assist clients with the key aim to separate business risks from family wealth.

The Secret Recipe Behind RHTLaw Taylor Wessing’s Impressive Achievements

At the Wealth Briefing Asia Awards 2018, RHTLaw Taylor Wessing was recognised as having demonstrated “innovation and excellence” in its business. As such, we started off our interview by seeking Mr Szeto’s views on what has set the firm’s work a tier above that of others to earn it its acolades.

Mr. Szeto highlighted RHTLaw Taylor Wessing’s industry group approach as one of the factors that contributes to the firm’s uniqueness. Unlike most other law firms that are typically organised according to practice areas such as litigation, corporate, intellectual property and conveyancing, RHTLaw Taylor Wessing adopts an industry group organisational structure. The wide range of industry groups span from consumer brands to energy and environment. Mr. Szeto himself helps helm the private wealth industry group. The advantage of having this approach lies in the partners’ ability to better serve the needs of clients from within each industry group. Clients from different industry groups have different sets of problems and issues that they need to address. By being attuned to the issues pertinent to the respective industry groups, lawyers at RHTLaw Taylor Wessing possess perceptive knowledge of the key concerns and considerations of clients specific to every industry group. Such an approach thereby allows lawyers to better understand their clients’ industries and tailor solutions that meet the clients’ needs.

Mr. Szeto also highlighted RHTLaw Taylor Wessing’s ASEAN-centric focus. Via the ASEAN Plus Group, which is a regional network of full-service and well-established law firms in ASEAN plus China, Taiwan, Hong Kong, Japan and Korea, RHT Law Taylor Wessing facilitates its clients' cross-border regional transactions, allowing them to navigate the region and its opportunities with confidence, providing an integrated suite of services across different practice areas and in different ASEAN jurisdictions. This is appropriate since the nature of private wealth is now very global, which alludes to the necessity to serve clients’ needs that may span across multiple jurisdictions. Being attuned to the nuances of working in Asia while also possessing the added perspective and expertise of an international firm has allowed RHTLaw Taylor Wessing to be very efficient in delivering bespoke and comprehensive legal services for clients and multi-disciplinary representation on complex cross-border transactions both in Singapore and on an international level.

Mr Szeto also shared that one of RHT Law Taylor Wessing’s strengths is in the areas of art and philanthropy. Art and philanthropy are very aspirational areas that a lot of private clients are most interested and passionate about. As such, having capabilities and expertise in these areas allow the firm to put together solutions that are not just about meeting legal needs but also about addressing the passions and aspirations of some of these private wealth clients.

Unravelling RHTLaw Taylor Wessing’s International and Regional Practice

Apart from engaging in legal work, Mr. Szeto also looks at regional business development aspects for the private wealth industry group. RHTLaw Taylor Wessing is extremely regional in their private wealth industry outlook. For example, the firm has a strong Indonesian client base, a strong foothold in Hong Kong and good dealings with clients from China. Additionally, they are looking at expanding to other ASEAN countries, especially markets like the Philippines and Vietnam.

RHTLaw Taylor Wessing also has a strong regional focus in its other industry groups and practice areas. They have established regional clients ranging from listed entities to top tier Fortune 500 companies and international banks. To address the various needs of its clients, RHTLaw Taylor Wessing advises on a variety of matters directly from the Singapore office, or will work with its partners in the ASEAN Plus Group on international matters. For example, a client seeking to complete a cross-border M&A transaction can deal with the firm without the need to separately seek advice across multiple jurisdictions. This is one of the forms of cross border support that the firm can provide for its clients. As noted by Mr. Szeto, these days, lawyers have to go beyond just doing the legal work, and must instead provide clients with an experience that is as seamless and efficient as possible.

What Is Private Wealth?

To gain deeper insight into Mr. Szeto’s line of work, we asked him to share certain challenges and points to note when working with private wealth clients. In dissecting the term “private wealth”, we were directed to two sub-groups, namely, the private client and the intermediaries.

In the first group, the private client includes HNWIs, the families, and the family offices. Generally, such clients tend to be the businessowners themselves. As for the second group, intermediaries include corporate parties such as private banks, trust companies and insurance groups.

A key point during our conversation was the importance of context and understanding the values, position, and internal dynamics of each group. Mr. Szeto highlighted the importance of understanding each client’s unique needs, business model and their long-term concerns. In the process, rapport is also developed, strengthening the long-term partnership between the client and the firm.

For lawyers engaged in this field, business development is paramount. Outside of Singapore, Indonesia and the People’s Republic of China are still key drivers of growth. While demand for lawyers in the private wealth sector is strong, the competitive climate demands effective solutions delivered through a seamless network.

As our conversation developed, the world of private wealth seemed all the more attractive. Amid the glitz and glamor often associated with the private wealth sector however, Mr. Szeto quickly pointed out the inevitable overlap with corporate work which one should be prepared to face. This stems from having to assist clients in fulfilling various objectives. Take for example, mergers and acquisitions between companies, purchasing of property in various regions, and the incorporation of new entities. One must also be well-versed in trust structures.

Additionally, the nature of a family business may have implications not often found in other areas. From his experience, a common issue is the tendency to not draw a clear line between the family business and the family fortune. In the long-run, this leads to complications with wealth preservation, legacy planning, and asset protection. Ideally, the two should be kept distinct, given the cyclical nature of businesses and its potential impact on the family fortune.

In areas like these, RHTLaw Taylor Wessing offers solutions to address the needs of clients irrespective of the region or jurisdiction concerned, where necessary liaising with other foreign counsel.

Multiplying Experiences and Perspectives

Impressed by Mr. Szeto’s wide array of experiences ranging from a Master of Science (Real Estate) from the National University of Singapore to a Diploma in Financial Management from the Association of Chartered Certified Accountants, as well as being a Trust and Estate Practitioner of the Society of Trusts and Estate Practitioners, we had to ask him for his thoughts on the insights that his multitude of experiences have rendered to his practice.

Mr. Szeto wisely propounded that lawyers have to understand that they are working with clients in a context. Client advice is multi-disciplinary in nature. Lawyers cannot look at issues in a silo. Moreover, clients these days expect lawyers to not just give good legal advice, but also to understand, comprehend and have a good grasp of the other commercial issues. To quote Mr. Szeto, “Now as lawyers, we are expected to be a jack of all trades, and a master of one”. In short, lawyers have to be good at law, but conversant in other areas as well.

Mr. Szeto shared that his training in real estate and finance have really given him the ability to have a much more rounded conversation with his clients. The width and depth of knowledge that he possesses help him to understand issues much better. In addition, there is no excuse or reason for him to feel intimidated when people talk about foreign non-legal concepts such as balance sheets or income statements. Furthermore, the real estate background is very important especially in the area of private wealth and in dealing with Asian-based families as real estate is a favourite asset class among high net worth clients. To be able to connect with them on a non-legal level and discuss about their real estate investments really goes a long way. Thus, Mr. Szeto personally feels that having skills outside law will help one to become a more rounded person, allowing one to have a more holistic view of various fields. Having qualifications, whether at a rudimentary level or at a more formal level, will definitely help any lawyer in practice.

Parting Advice

In response to our request for his advice and recommendations to aspiring lawyers and students, the first piece of advice that Mr. Szeto gave is to read more widely. While acknowledging the pressure and stress in law school, Mr. Szeto stressed that it would be ideal if law students had the opportunity and time to read beyond our core competencies in law. For instance, students interested in the private wealth space can go a bit deeper into the industry. There are many issues such as common reporting standards, investments, and diverse asset classes. Developments are vast and rapid, and for any student keen on pursuing a career in any particular space, it is good to start to have a feel of what is happening in that space, to explore and to keep abreast of developments by reading widely.

Mr. Szeto’s second piece of advice is to sharpen one’s people skills. Mr. Szeto encourages young lawyers and students to hone client development skills, interaction skills and interview skills, given that people skills are definitely one aspect of practice that cannot be neglected. For example, in the private wealth space, people skills are especially important as clients may not be so direct in their communications, so lawyers would need to figure out what exactly clients are trying to convey.

As concluding remarks, Mr. Szeto recommends young lawyers in their early years of practice to seize every networking opportunity possible. Ultimately, there is value in having a wide network of people that you can turn to for support, as the nature of lawyering is very people-oriented.

Indeed, a timely reminder that as service providers, we as lawyers and lawyers-to-be must always keep abreast with the human aspect of law.

The Singapore Law Review would like to thank Mr. Benjamin Szeto and RHTLaw Taylor Wessing for accommodating our members, Keith Wong and Choo Qian Ke. We are very appreciative of the opportunity to engage and share in such an inspiring and insightful conversation with Mr. Benjamin Szeto.

Considerations in an Autonomous Era

The PDF version of this article can be found here.

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Considerations in an Autonomous Era

Keith Wong

Enter the autonomous age. Once the far-flung conception of a childhood storybook, the entry of autonomous technology into our daily lives is now becoming a common reality. Amid the dazzle of such innovative wonder, prudence warrants that we consider how to manage liability and ethics when things turn awry. With increasing adoption of autonomous technology, is the law capable of contending with a shift to this age? In this article, an assessment of potential manufacturer’s liability will be examined.

The accepted taxonomy for the classification of autonomous vehicles has been categorized into six different stages.¹ This is outlined in the diagram below:²

As reproduced from Mr. Brian Buntz's article on the Internet of Things Institute. All rights in this photograph belong to him.

At the highest level, vehicles operate at full automation, with limited to no driver intervention required in moving from point A to point B. Most vehicles presently on the road function at the lower end of this operating spectrum instead, requiring significant driver intervention.

However, an increasing range of vehicles available for sale have crept up the spectrum, offering assistance to drivers at Levels 1 and 2. For example, some vehicles are able to rely on radar sensors to navigate into parallel parking lots, while others offer adaptive cruise control and automatic emergency braking.

In the past few months, videos of vehicles equipped with highly autonomous functions have surfaced. They depict consumers, who purchased these vehicles from a particular American manufacturer, taking leisurely naps at the wheel, or in some cases leaving the driver’s seat vacant while the car is in operation. It invariably begs the question – what happens when an accident occurs?

In 2016, a nuTonomy driverless vehicle collided into a lorry at one of the firm’s testing grounds. This was headlined as the first accident in Singapore involving an autonomous vehicle. In a report, the Straits Times pointed to software glitches which affected how the vehicle detected and responded to other vehicles in the vicinity.³ As this issue was subsequently resolved, there was no need for a case to be raised.

Given the complex nature of such technology and its current, limited commercial availability, such a concern has yet to be highlighted by our local courts. In due time however, a number of considerations are likely to arise in regard to this field.

I. HOLDING A MANUFACTURER LIABLE FOR NEGLIGENCE

From a consumer’s standpoint, a selling point for autonomous technology lies in the data collected by the manufacture and the software developed for each product. What distinguishes one manufacturer’s product from the next is the sophistication and unique qualities offered. In other words, an autonomous vehicle is only as good as the manufacturer has programmed it to be.

The concept of a duty of care can be traced back to Donoghue v Stevenson⁴ [Donoghue], as well as the earlier case of Heaven v Pender⁵ [Heaven]. The cases themselves are black letter, but what is significant in Heaven lies in Brett MR’s assessment⁶ that established an obligation between persons in the absence of a contract between them. Lord Atkin built upon this proposition in Donoghue with the notion of the neighbour principle. This cemented the existence of a duty of care between a manufacturer and a consumer, premised on the concept of persons who are so closely and directly affected by the act that the manufacturer ought reasonably to have them in contemplation. Clearly, the same principles are likely to apply to the relationship between manufacturers and purchasers of autonomous vehicles.

In Singapore, the landmark decision of Spandeck Engineering v Defence Science & Technology Agency⁷ establishes the local approach in determining whether a duty of care exists. At the threshold stage, factual foreseeability of harm arising from the defendant’s negligence is first evaluated. This is followed by an assessment of proximity and nexus between parties. In the subsequent case of Anwar Patrick Adrian v Ng Chong & Hue LLC⁸, the Court expanded the range of proximity factors to recognize knowledge, control, vulnerability, assumption of responsibility and reliance, as suggested by Professors David Tan and Goh Yihan.⁹ Finally, policy concerns have a determinative role in whether the imposition of a duty of care is negated.

In assessing the local position on a duty of care in relation to a consumer’s claim against a manufacturer, the presence of a proximate relationship is likely uncontentious. However, the position on policy is likely to be probative with reasons both in favour of and against imposing a duty of care on manufacturers of autonomous vehicles.

At present, Singapore takes a favourable position toward research and innovation. This is reflected by strong investment in innovation from both the public and private sector, such that “Singapore’s [Research and Development] efforts have led it to be consistently ranked in the top 10 in the Global Innovation Index.”¹⁰ Given this stance, policy may negate the imposition of a duty of care on manufacturers, in order to encourage innovation in a sandbox environment.

However, a comparative examination illustrates a variance in legislative attitudes toward liabilities arising from autonomous vehicles. Europe has launched several initiatives relating to Connected and Automated Driving.¹¹ In Belgium, liability on the part of the car manufacturer may be civil or even criminal, such that both the company and its directors may be prosecuted.¹² A contrasting approach to liability has been taken on the other side of the globe. Recent amendments to the California Department of Motor Vehicles removed Section 227.38(b), which originally read:

“The manufacturer certifies that, to the extent the manufacturer’s autonomous technology causes the autonomous vehicle to be at fault in a collision, the manufacturer shall assume liability for damages caused by the autonomous vehicle in such collision, but subject to applicable law.”¹³

The subsequent amendment to excise part of this clause suggests that existing liability laws in California will apply instead, as no indication is given as to whether manufacturers assume liability for damages caused by autonomous vehicles. However, it is key to note that this regulation applies to driverless testing and public use rules for developing autonomous vehicles. As the focus is on the testing and development stage, it is thus appropriate to consider what may apply to products already available for purchase. Consequently, the lack of a global standard and its various ambiguities, raises the need to consider what may develop in our local environment.

Even with a duty present, the standard of care expected of makers of autonomous vehicles is also open at law. Typically, the standard of care is an objective assessment of what a reasonable person would do in the circumstance. This applies well in cases of negligence arising from human error or oversight. However, the multiplicity of benchmarks for the performance of autonomous vehicles suggests that unanimity on the applicable standard is yet settled.

Across the board, imposing a high standard of care for operators of vehicles has been a relevant policy consideration. From the traditional position reflected in Nettleship v Weston¹⁴ to the more recent case of Ng Keng Yong v PP,¹⁵ factors such as inexperience have failed to reduce the requisite standard of care. In Singapore, this posture has been further emphasized in Public Prosecutor v Hue An Li¹⁶. In his written judgment, Sundaresh Menon CJ reiterated the high standard of care expected,¹⁷ stressing determinedly that “[t]he starting point for sentencing in a s 304A(b) traffic death case is a brief period of incarceration for up to four weeks.”

Admittedly, the lack of global unanimity begs the question as to what standard manufacturers of autonomous vehicles should be subject to. Manufacturers might prefer a subjective standard as it allows for a more flexible approach to product development, but this tugs against the generally-accepted benchmark of an objective, reasonable manufacturer. Even this objective benchmark is left open for determination: while features such as reliability and functionality would generally be expected of traditional automobiles in the eyes of consumers, there is no global industry standard for autonomous vehicles on this front. This is likely to span a host of future dispute between policy makers and manufacturers. It probes at an incipient tension between protecting consumers by way of a higher objective standard, against a more relaxed approach which encourages innovation. As suggested by this article, one solution to address such ambiguity in the law, may be to draft legislation tailored to address such concerns.

II. CONTRACTUAL LIABILITIES OF A MANUFACTURER

A duty to take care in programming is likely to arise alongside other implied contractual warranties provided for by legislation in the Sale of Goods Act.¹⁸ Attempts to hold manufacturers liable will also likely be met with attempts to reduce or exclude liabilities, which also raise concerns as to whether statutes such as the Unfair Contract Terms Act¹⁹ [UCTA] apply. For example, dealers with Level 1 and Level 2-type vehicles for sale often require buyers to sign an exclusion of liability form, absolving them from liability in the event that the technology fails to act as it should. In determining whether a term of the contract has been breached, it is also appropriate to look for any warranties given by the manufacturer on how their product is meant to operate. Should negligent programming on the part of the manufacturer result in the causing of death or personal injury however, UCTA, as well as the contra proferentem rules suggest that such liability cannot be indemnified against.

III. POSSIBLE DEFENCES

What then happens, when a driverless vehicle operating at the higher end of the autonomous spectrum meets with an accident due to its own erroneous calculations?

From a manufacturer’s point of view, this raises a possible defence of novus actus interveniens on the part of the driver in the law of tort. It is, for instance, at least arguable that a consumer’s recklessness by sleeping in the driver’s seat while the vehicle functions in autonomous mode on a congested expressway is so wholly unreasonable that it amounts to a novus actus interveniens. Admittedly, this is a slippery slope, given that the trajectory of autonomous vehicles aims to be less dependent on human intervention. Hence, this area of the law is certainly one to watch, given the impending arrival of this technology and the inevitability of such a claim.

IV. CRIMINAL LIABILITIES OF THE MANUFACTURER AND OTHER ETHICAL CONSIDERATIONS

Shifting back to the scene of an accident, matters become more complicated when the circumstance develops to value human life. How would an autonomous vehicle contend with ethical choices, such as the dilemma of saving many at the expense of the few? In response to this trolley problem,²⁰ Professor Reich has questioned whether autonomous vehicles will “[o]ptimize for overall human welfare” when faced with the need to prioritize one human life over the other.²¹

Separately, this raises an interesting question in relation to the provisions of the Penal Code.²² As indicated by the preliminary section of the wording and scope of the Penal Code, the provisions criminalize the acts of natural and legal persons. In an extreme scenario that an autonomous vehicle runs over a pedestrian, applying many provisions of the Penal Code would stretch the realm of reality. This prompts for future development of the Penal Code, and encourages the drafting of more statutes pertaining to advanced technology.

Outside of the Penal Code, one such example has been the development of the Cybersecurity Bill,²³ in response to concerns brought about by the Fourth Industrial Revolution. As technology continues to disrupt the traditional world we know, the spill-over effects into the legal system demands changes that keep pace with the steep learning curve. This is especially in light of the progressively symbiotic relationship that autonomous technology and artificial intelligence will share with human beings.

V. REGULATION

One response to increasing developments in this field has been in regulation via the Road Traffic Amendment in 2017.²⁴ This amendment addressed the testing of autonomous vehicles in Singapore, and paves the path toward future regulation and development governing the operation of autonomous technology. With Singapore poised as a technologically adept society, continued emphasis in this area of the law can encourage local growth in this field, while placing Singapore as an attractive hub for future innovation.

VI. REFLECTION

While this article merely scratches the tip of the iceberg, such concerns are likely to become increasingly prevalent. With the rise of autonomous technology and a growing global investment in artificial intelligence, the time is ripe to re-assess traditional areas of the law. On the cusp of the Fourth Industrial Revolution, the opportunities and need to be familiar with changing technology are certainly pressing. Appropriately, this encourages lawyers (and lawyers-to-be) to address and to understand the growing demands in this area.

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[1] On-Road Automated Driving Committee, “Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles”, SAE International (30 Sep 2016), online: < http://standards.sae.org/j3016_201609/> (accessed 2 Jan 2018).

[2] Brian Buntz, “What are the 5 Levels of Autonomous Driving?”, Internet of Things Institute (22 Aug 2016), online: <http://www.ioti.com/transportation/what-are-5-levels-autonomous-driving> (accessed 2 Jan 2018).

[3] Zhaki Abdullah, “‘Software Anomalies’ to Blame for Driverless Car Accident”, The Straits Times (25 Nov 2016), online: <http://www.straitstimes.com/singapore/software-anomalies-to-blame-for-driverless-car-accident> (accessed 2 January 2018).

[4] M’Alister (or Donoghue) (Pauper) v Stevenson [1932] AC 562.

[5] (1883) 11 QBD 503.

[6] Ibid, at p 507.

[7] [2007] 4 SLR(R) 100.

[8] [2014] 3 SLR 761.

[9] In “The Promise of Universality: The Spandeck Formulation Half A Decade On” [2013] 25 SAcLJ 510.

[10] Lim Chuan Poh, “From Research to Innovation to Enterprise: The Case of Singapore” in Soumitra Dutta, Bruno Lanvin, and Sacha Wunsch-Vincent, eds, The Global Innovation Index 2016 (World Intellectual Property Organization) 133 at 138.

[11] Matthieu Relange, “At a Glance: Autonomous Vehicles, EU”, Bird & Bird (25 July 2017) < https://www.twobirds.com/en/news/articles/2017/global/at-a-glance-autonomous-vehicles> (accessed 04 March 2018)

[12] Jaward Aadel, “At a Glance: Autonomous Vehicles, Belgium”, Bird & Bird (25 July 2017) < https://www.twobirds.com/en/news/articles/2017/global/at-a-glance-autonomous-vehicles> (accessed 04 March 2018)

[13] Cal. Code Regs. tit. 13, § 227.38(b), as indicated in the Second Modified Express Terms (California: Department of Motor Vehicles) at p 11, online: <https://www.dmv.ca.gov/portal/wcm/connect/aa08dc20-5980-4021-a2b2-c8dec326216b/AV_Second15Day_Notice_Express_Terms.pdf?MOD=AJPERES> (accessed 4 March 2018)

[14] [1971] 2 QB 691.

[15] Ng Keng Yong v Public Prosecutor and another appeal [2004] 4 SLR(R) 89.

[16] [2014] 4 SLR 661.

[17] Ibid, at [61].

[18] Cap 393, Rev Ed 1999.

[19] Cap 396, Rev Ed 1994.

[20] As raised by Professor Taylor Reich in Alex Shashkevich, “Stanford Scholars, Researchers Discuss Key Ethical Questions Self-Driving Cars Present”, Stanford University (22 May 2017), online: <https://news.stanford.edu/2017/05/22/stanford-scholars-researchers-discuss-key-ethical-questions-self-driving-cars-present/> (accessed 2 January 2018)

[21] Ibid.

[22] Cap 224, Rev Ed 2008.

[23] Bill No. 2 of 2018.

[24] Road Traffic Act (Cap 276, 2004 Rev Ed Sing), as amended by the Road Traffic (Amendment) Act No. 10 of 2017.

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