Stretching separability to its yield point

It Is Time to Unseal Sealed Offers in International Arbitration: As a Negotiation Strategy or Pressure Tactics?

Singapore and the UK share the same common law heritage. English law was imported into Singapore through the colonisation of the island in the nineteenth‐century. Singapore law developed in a similar manner to English law, subject to exceptions to reflect the different ethnic and religious identity of Singapore. It is not true to say that English law and Singapore law are identical, despite their common law roots. Since the passing of the Application of the English Law Act in 1993, English statutes are no longer automatically followed in Singapore; however, English common law principles reflected in case law continue to be important. This paper looks at applications in contract law of key areas relating to building defects, such as materials, workmanship and design, in the context of contract law in Singapore.

Singapore law, which has its root in English law, has now evolved into a distinctive jurisprudence. It continues to absorb and modify the common law as well as best practices from other mature legal systems. The common law system in Singapore bears material differences from some Asian countries which have imbibed the civil law tradition such as the legal profession. The common law is one important strand of Singapore politico legal fabric. Singapore has inherited the English common law tradition as a part of Anglo Saxon countries and thus enjoys the attendant benefits of stability, certainty and internationalization inherent in the British system. Singapore shares similar English common law roots with some neighbours, such as Malaysia, Brunei, India and Myanmar through the details of the application and implementation will differ according to each country’s specific needs and policies, same goes to the legal professional they are adopted.

Anti-suit injunctions are typically treated differently in common law and civil law jurisdictions. While common law jurisdictions may favour anti-suit injunctions as enforcing the parties’ agreement to arbitrate, civil law jurisdictions are generally concerned that anti-suit injunctions risk interfering with the jurisdiction of foreign court proceedings. The United Arab Emirates (UAE), where common law and civil law jurisdictions intersect, presents a unique example. The on-shore UAE courts apply civil law while the off-shore Dubai International Financial Centre (DIFC) and Abu Dhabi Global Market (ADGM) Courts apply common law, bringing a new dynamic to the availability and enforcement of anti-suit injunctions. The interaction of these courts and the fine balance achieved has resulted in remarkable developments in the UAE. However, both in the UAE and further afield, certain challenging issues such as interim anti-suit injunctions, interim measures filed in parallel court proceedings, and anti-suit injunctions against third parties related to the dispute serve to test this balance. Nevertheless, with new developments in the region, a positive attitude appears to have emerged on the availability of anti-suit injunctions, opening it up to potential advancements as the jurisprudence continues to evolve. anti-suit injunctions, arbitration, foreign court proceedings, UAE, arbitration agreement, enforcement

Advocates’ immunity accords protection from civil liability, most notably claims in negligence, to advocates when undertaking tasks which are “intimately connected” with the conduct of a client’s case in court. The doctrine had a longstanding history in English law and was adopted in many common law jurisdictions such as New Zealand and Australia. Most recently, however, the House of Lords abolished the advocates’ immunity doctrine in England and Wales. The House of Lords held that the many factors upon which the immunity had been based were no longer sufficient to warrant its retention. A short time later, the High Court of Australia reached an entirely different view. The High Court declined to abolish advocates’ immunity and has, arguably, even extended its scope. When the issue arose before the Supreme Court of New Zealand, that court examined these recent developments in English and Australian law in detail and concluded that advocates’ immunity should be abolished. This thesis examines these differing international developments on advocates’ immunity. Given similarities in the development of the advocates’ immunity doctrine in Australia, New Zealand and England, an emphasis will be placed on these jurisdictions. An evaluation of the reasons enunciated by the High Court of Australia in support of retaining advocates’ immunity will reveal that “finality” of litigation will not be threatened by the abolition of the immunity. It will also be argued that the administration of justice would not be prejudiced by the abolition of advocates’ immunity. In order to provide a “solution” to the present dilemma existing within the Australian legal system, the thesis will also consider four possible law reform possibilities. These are: complete abolition of the advocates’ immunity doctrine; reduction of the scope of the advocates’ immunity doctrine; preservation of the status quo; or broadening of the advocates’ immunity doctrine. The thesis will also consider the soundness of the secondary arguments which were adopted by the High Court of Australia in support of the retention of the advocates’ immunity doctrine. It will be argued that none of the reasons accepted by the High Court to support the immunity do in fact provide a coherent basis for the immunity. Accordingly, the thesis will recommend the abolition of advocates’ immunity in Australia. At the very least, the advocates’ immunity doctrine should be revitalised and only be triggered under a narrower scope of conduct. The thesis will conclude that any substantive reform to advocates’ immunity should be taken by legislatures rather than the courts as this would lead to superior results. This thesis will also briefly discuss prospective developments and consider opportunities for further research into this area of the law.

This article considers, from an English law perspective, the question of which law should govern the arbitrability of a dispute. The focus of the article is on the position preaward as opposed to postaward, which is expressly addressed by the New York Convention. The article analyses this question in light of the decision of the Singapore Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings, the only authoritative treatment of the relevant issues by a common law jurisdiction. In Anupam, the court concluded that a composite approach to the law applicable to the arbitrability of a dispute should apply, requiring a dispute to be arbitrable under both the law of the seat of arbitration and the law applicable to the arbitration agreement. The authors suggest that a composite approach to the issue of arbitrability should not be followed in England. Instead, English law should apply the more orthodox approach of looking to the law of the seat. An approach that looks to the law of the arbitration agreement would be particularly detrimental to English arbitration law given the decision of the UK Supreme Court in Enka v Chubb. It underlines the need for reform of the Arbitration Act 1996 to address some of the well-known problems caused by Enka and which could be expanded by the additional focus on the law applicable to the arbitration agreement provided by Anupam.

This paper examines why Singapore law has not followed English law in the area of beneficial ownership of family property. It points out that the landmark cases in the two jurisdictions are underpinned by different family paradigms.The English landmark cases are based on the unmarried cohabitants paradigm and the legal rules that have emerged from these cases are aimed at, whether successfully or not, ensuring a fair division of the family home upon the breakdown of these relationships. In contrast, the Singapore seminal judgments are underlaid by contests between children over their parents’ property which raised questions as to the parties’ true intentions and the legal techniques to determine that. In the main, this paper argues that the legal rules that emerge in a society are shaped by the conditions of that society: these rules are purpose-built to resolve the specific types of disputes that come through the judicial system, which are in turn moulded by the distinctive conditions of that society. The discussion also shows that whilst the courts in the two jurisdictions differ in the legal techniques which they apply to determine these disputes, they do not appear to differ greatly in their understanding of human interactions and complex family relationships.

This chapter opens with a discussion on the local system of Singapore. It underscores that Singapore is a common law jurisdiction, and demonstrates the three primary acts that govern substantive succession law in Singapore: the Intestate Succession Act, the Probate and Administration Act, and the Wills Act. The chapter then jumps to provide a brief description of formalities for different types of will under Singapore law. Under Singapore law, for a will to be valid, it must meet these cumulative requirements: the testator must be above 21 years of age; the will must be made in writing; and signed by the testator at the foot or end of the will or by some other person in the testator’s presence and by his or her direction in the presence of two or more witnesses; and with these witnesses also signing the will in the testator’s presence. In cases of intestacy, the chapter unfolds that the deceased’s estate will be distributed according to the rules set out in the Intestate Succession Act. This chapter ultimately concludes by addressing the concepts of compulsory shares, contracts of inheritance, partition, anticipation, or successor or family settlement. It also considers the concept of community of property and the right of survivorship or doctrine of survivorship.

The field of comparative administrative law has developed less extensively than comparative constitutional law. While it is experiencing a recent growth in interest, there remain gaps in the depth and extent of study, especially across common law systems. This Chapter evaluates common law studies to date, with a view to highlighting the relatively small catchment of common law systems in those studies, with the focus typically being on key Anglo-American systems. As common law systems increasingly diversify, there is much to be gained in exploring the diversity of common law approaches to administrative law. The comparative conversation will be assisted with input from a broader range of common law jurisdictions, especially those outside the traditional focus of comparative administrative law, in particular systems from Asia. This Chapter proposes that one avenue to do this is to compare the origins and adaptations of English law principles of judicial review across common law systems that traditionally imported, or were modelled on, English law. Such a conversation will help develop a much more robust understanding of different approaches to judicial review that is not skewed towards an English or ‘Westminster- system’-based understandings. This is the ambition of this Volume. This is especially for the benefit of ‘newer’ common law jurisdictions that are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. This more refined understanding of ‘common law’ approaches to judicial review will also provide a better launch pad for studies of common law versus civil law systems, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics.

This handbook examines various aspects of the criminal process, including the role of prosecutors in common law and civil law jurisdictions, the rights and duties of experts, victim rights in civil law jurisdictions, surveillance and investigation, criminal prosecution and its alternatives, evidence discovery and disclosure in common law systems, evidence law as forensic science, common law plea bargaining, appeals and post-conviction review, and procedure in international tribunals. The book is organized into eight parts covering topics ranging from criminal process in the dual penal state to interrogation law and practice in common law jurisdictions, empirical and comparative approaches to criminal procedure, prosecution-led investigations and measures of procedural coercion in the field of corruption, international corporate prosecutions, special procedures for white-collar and corporate wrongdoing in Europe, and trial procedure in response to terrorism. Also discussed are the roles of the European Convention on Human Rights and the European Court of Human Rights as guardians of fair criminal proceedings in Europe, double jeopardy or ne bis in idem in common law and civil law jurisdictions, plea bargaining vs. abbreviated trial procedures, restorative justice as an alternative to penal sanctions, and the pluralistic nature of international criminal procedure.

The concept of a company as a separate entity from its shareholders is well known and recognized in many common law and civil law jurisdictions. Generally, it is regarded as a fundamental aspect of corporate law and for this reason courts are loath to depart from it. Nevertheless, the principle of separate personality is not absolute and in both common law and civil law countries the courts have the power to depart from it. Where this occurs, it is often said that the courts “pierce” or “lift” the corporate veil. This will usually, but not inevitably, lead to liability being imposed on another person, perhaps in addition to the corporate vehicle. This paper aims to compare and critically examine the circumstances under which veil piercing takes place against the objectives of incorporation. The countries examined are England, Singapore and the United States (US) which are common law jurisdictions, as well as the civil law countries of China and Germany. The main purpose of this comparison is to offer a reasonably comprehensive and thorough examination of how the principle of veil piercing, which has been formally adopted either through case law or legislation, is doctrinally applied by the courts in these jurisdictions. The functional method in comparative law is inevitably employed in this paper, but we also consider other aspects. It will be seen that there are many parallels between the countries being compared, whether common law or civil law, in part because the historical circumstances leading to the rise of corporate personality were very similar, and also because the corporations laws in Asian countries referred to in this paper are legal transplants. The paper argues that in almost all the jurisdictions examined, some cases of veil piercing ought not to have been decided as such because doing so gives rise to suboptimal outcomes. Instead other legal tools should have been used particularly those in the law of torts. We believe this paper fills a gap in the literature of comparative corporate law as the doctrine of veil piercing has been frequently misapplied and there is also a paucity of academic commentary in this area.

The English origin of the law in the Common law jurisdictions in Canada makes it mandatory to study common law and English statutory law. It is through those that we can follow the development of a family property law in English Canada. Starting from an individualistic view of the spouses' property, we shall witness the emergence of the idea of « family assets » which has been « enshrined » in recent legislation. The law of Québec has evolved differently. Though of Trench origin, it has not kept as near its mother-country as its neighbour's has done with English law. Turthermore, due to its civilian character, its principles of private law are to be found in the Civil Code. This favours a different approach. That is why we will generally confine our study to those rules which are to be found in the Code civil du Bas-Canada and to the newly adopted Code civil du Québec. We will see what has become of the original community of property and compare the present law of Québec with recent legislation in English Canada.

This Article seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a slowly changing, historically binding tradition; the custom view sees the authority of the common law as derived from its correspondence to contemporaneous norms and values; and the will view sees the authority of the common law (like that of all other law) as derived from the acts of a sovereign. These competing views imply different answers to various questions (such as the relationship between statutes and the common law, or the role of judges in the legal system). They also lead to very different attitudes towards the idea of a single, supranational common law: generally speaking, the first two approaches are more sympathetic to common law convergence than the latter two. I argue that these days English common law is close to the second, practice-based conception of common law authority, whereas American law adopts a combination of the third and fourth conceptions. This explains why American common law is largely uninterested in maintaining commonality with other common law jurisdictions, as well as many other differences between American and English common law.

This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.

This chapter explores and amplifies the themes of this work by some comparative reflections from Australia, a common-law jurisdiction with roots in English law, but an idiosyncratic history of collective labour market regulation. Australian courts have developed the common law of the employment contract, in response to doctrinal developments in English law and under similar socio-economic conditions, but also within the peculiar context of Australia’s own political and industrial history. In Australia, a well-developed legislatively mandated system of industrial conciliation and arbitration (including unfair dismissal arbitration) administered by industrial tribunals exercising administrative but not judicial power, has given rise to a disjunction between statutory workplace law and the common law of the contract of employment. The common-law courts’ concern to maintain coherence between these separate forms of regulation has led to the maintenance of a strongly traditional form of employment contract law, largely indistinguishable from general commercial contract law.