Legal Conundrum Over Effective Date Of Share Transfer In Singapore

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Sometimes a very small change in the law can lead to big and unintended consequences.
Singapore Corporate/Commercial Law
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Sometimes a very small change in the law can lead to big and unintended consequences. Singapore's migration to digital may have inadvertently changed the way in which title passes in a share transfer.

In most cases, this will not be a big problem. However, there will be cases in which the date on which title transfers will mean an awful lot.

When share title transfers

Previously, it passed when the seller and buyer signed a document called the share transfer form. The date of the share transfer form was the effective date on which the share title passed.

Has that position changed with enactment of the Companies (Amendment) Act 2014 (No. 36 of 2014) (Amending Act)?

The Amending Act introduced new section 126(3), which reads: "A transfer of any share in a private company on or after 3 January 2016 does not take effect until the electronic register of members of the company is updated by the Registrar under section 196A(5)," (Amendment).

The Amending Act aimed to remove the requirement for private companies to maintain a register of members, improve public access to shareholding information, and enhance corporate governance.

This meant that for any share transfer in a private company to be effective, it had to be updated by the Accounting and Corporate Regulatory Authority (ACRA) through registering on the electronic Register of Members (eROM). This amendment, effective from 03 January 2016, remains unchanged to this day.

As such, to register an effective share transfer today, companies must pay stamp duty under section 45 of the Stamp Duties Act 1929 (2021 Rev Ed) before filing the transaction with ACRA via BizFile+ (Filing). Otherwise, a penalty is incurred under section 66(1) of the Stamp Duties Act 1929.

Prior to the Amendment, companies could indicate the effective date of a share transfer by writing the intended date in the share transfer form.

However, since the Amendment, the effective date of a share transfer is disputed.

Some may argue it's still the date written into the share transfer form. Others believe it's now the date on which the company's eROM is automatically updated by ACRA after the Filing.

To this end, the Ministry of Finance (MOF) has clarified in the General Company Administration Legislation that parties can indicate the effective date of transfer on the eROM.

This is similar to the previous practice of entering the date on the Register of Members. It means parties can still treat the effective date of transfer as the date written into the share transfer form.

However, in practice, when doing the Filing, there is a field on the ACRA website which permits the person doing the filing to type in the effective date of transfer, based on what is written into the share transfer form.

Even so, for reasons unknown and inexplicable, when extracting the eROM after the filing – oh horror! The "Date Entered as a Member" and "Date of Entry into the Register" both register as the date of Filing.

The effective date of transfer – which was painstakingly typed into the ACRA website during the Filing – has inexplicably vanished!

There is no electronic Register of Transfers. This must be produced manually by the company secretary – and hence looks like the 'old school' Register of Transfers that company secretaries have been maintaining for hundreds of years.

Possibility to change the date in the eROM

One way to rectify this is under section 12(C) of the Companies Act 1967 (2020 Rev Ed). This is subject to approval by ACRA, dependent on its discretion as to whether the error is typographical, clerical or unintended. ACRA's approach is further explained in Practice Direction No. 1 of 2017, illustrating its powers. However, considering the five illustrations provided in the Practice Direction and their respective explanations, the scope of ACRA deeming an error rectifiable is restrictedly narrow.

In illustration no. 3, Company X filed an annual return stating that its AGM date was on 30 Sep 2010 – when it was held on 16 Nov 2011. To correct this, X applied to rectify the AGM date from 30 Sep 2010 to 16 Nov 2011. In such a situation, ACRA decided it would not rectify the register, as the annual return should not have been filed when the AGM had not been held.

Conversely, in illustration no. 2, where Company X omitted to file the auditor's report when filing its annual return together with its audited financial statements, ACRA decided it may rectify the register since the audited financial statements filed together with the annual return were not in order. Therefore, X may file a Notice of Error attaching a complete set of financial statements with the signed auditor's report.

Through the illustrations, in our opinion it's unlikely that the date difference in the eROM will be regarded by ACRA as an error at all. This is because, in fact, no error has been committed by the individual who completed the Filing. All the correct information and documents have been provided in the course of the Filing. As such, it's unlikely that ACRA will change the date in the eROM to reflect the actual date written into the share transfer form.

As an alternative, companies can also apply to the Singapore Court under Section 12(B) of the Companies Act 1967 (2020 Rev Ed) to rectify – on the basis that it's an error in a document filed or lodged with the Registrar, or an error in the filing or lodgement of a document relating to the company. But again, it's not possible to show there is any error within this section.

In conclusion, ACRA needs to change the way eROM displays the effective transfer and filing date. Otherwise, the Register of Members cannot provide correct and accurate information.

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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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