About Professor Felicity Gerry KC Professor Felicity Gerry KC is Global Law Experts International Criminal Law Barrister 2023. She is admitted at the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in The Hague, to the Bar of England & Wales and the Victorian Bar, Australia. She has also had ad hoc admission in Hong Kong and Gibraltar. Felicity is a dedicated and experienced advocate who leads for the defence in serious, complex, and sensitive trials and appeals at every level of court. She specialises in terrorism, modern slavery, financial crime and war crimes (ICL) and has had several career-defining cases. Contact Professor Felicity Gerry Barrister Libertas Chambers 20 Old Bailey, London, EC4M 7AN, UK Tel: +44 07956 853737 E: fgerrykc@libertaschambers.com www.libertaschambers.com Mission on Myanmar (FFMM) report into the Myanmar military’s economic interests and ongoing atrocity crimes. We also raised 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 – a labelled terrorist organisation. The memo, drafted in 2021 and running to some 50 pages, answered specific questions as follows: (a) Under international law, do ETC’s 2018 and 2020 payments and future planned payments and asset transfers to the QMGO raise any concerns? (b) Do ETC’s payments amount to the company being “involved in or connected with... illicit activities” as per Practice Note 2B of the SGX? (c) Is there a legal risk for the SGX under international law if they continue to allow ETC’s listing? (d) Any other relevant matter arising. Our instructions were therefore broad and wide-ranging, but did not encompass advice on litigation. In seeking to encompass “any other relevant matter arising”, we considered any international law issues that may arise for SGX within the broader factual matrix, of which ETC’s 2018 and 2020 payments, future planned payments and asset transfers were only one part. The memo is therefore a broad overview of selected international law which we considered relevant to compliance issues. We considered state and corporate responsibilities, modern slavery reporting, OECD guidelines, investment treaties, sanctions, bribery and corruption risks and a range of other Articles and Conventions, much of which appeared not to have been considered before the listing was sought. We found that although some remedies may be elusive, due diligence failures create risks which should be of concern to corporations, states and state organs. It is not just about rebuffing external pressures, but 46 LAWYER MONTHLY OCTOBER 2023 recognising that the consequential cost implications of being connected to Golden City may be unquantifiable in terms of both human and financial costs. We focussed on the identification of issues that would most assist further investigations, should they become necessary, as well as decision-making on investment risk. ETC suspended trading on 23 March 2022, asking SGX for an extension of time to find an offer and seek shareholders’ approval for the proposed divestment, specifically citing the memo, which 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. The memo also found that Singapore has an international legal obligation “to investigate, prevent and cease transactions that amount to wrongful acts”, which is 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. Despite this, ETC’s latest annual report shows a “partial payment” of 2.33 billion kyat (S$1.68 million) to the Myanmar army in 2022. We acted pro bono for Justice for Myanmar, but this was more than 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. It demonstrates the legal minefield that requires expertise on international business and human rights compliance beyond consultancy at the early stages of every investment, including the international criminal law risks. Much of ‘The Big Short’ was taken up with the right time to sell. The law now requires significant reflection before buying in the first place.
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