Singapore Court Research Articles

Lord Denning’s influence on contract formation in Singapore—an overdue demise?

ABSTRACTIn a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard to developments in English law and a comparative study of various approaches taken in international instruments and jurisdictions around the world, is to affirm the traditional approach as the default rule, subject to displacement in exceptional situations.

The Value of Fiduciary Duties: Evidence from En Bloc Sales in Singapore

We explore the causal relationship between the legal doctrine of fiduciary duties and market price response in the setting of collectively selling subdivided residential real estates, the en bloc sales, in Singapore. We used a unique legal shock in 2009, the Ng Eng Ghee v. Mamata Kapildev Dave case decided by the Singapore Court of Appeal, to identify the value of fiduciary duties to actual and potential sellers, i.e. subsidiary proprietors whose condominium units have been sold en bloc or could be sold through the same legal scheme in future. We find that the judicial establishment of fiduciary duties in the en bloc sale process raises the price of these sales. After considering both the increase in price premium and the decrease in deal probability, the new judicial position seems to do no harm to condominium prices. Furthermore, we observe evidence lending persuasive support to the proposition that fiduciary duties is a useful legal device to constrain agency problem which, in the context of en bloc transactions, manifests itself as lowball sales by investor owners at the expense of resident owners. Finally, the findings in this paper demonstrate that fiduciary duties are likely to have enhanced the overall welfare of both sides of en bloc transactions. Our study highlights the importance of judicial oversight in non-consensual land assembly mechanisms that have been contemplated or practiced in a number of jurisdictions. At the same time, it presents a rare piece of empirical evidence illustrating the practical impact of fiduciary duties, a long-standing and widely-adopted legal doctrine. As such, this study also sheds new light on the crucial issue of adapting fiduciary duties to a variety of areas of law including corporate M&A, shareholder activism and broker-dealer obligations.

Rationalising the burden of establishing defences at criminal law in Singapore: Reconsidering Jayasena, in the wake of Eu Lim Hoklai

The reversal of the burden of proof and the imposition of a mandatory death penalty for certain offences have left the Singapore criminal justice system the subject of much rights-based criticism. Case law hints that there exists a very real possibility of wrongful conviction, should the courts apply s. 107 of the Evidence Act (‘EA’) in its literal sense and shift the legal burden to the accused, irrespective of the defence he seeks to invoke. The Singapore courts have acknowledged that the ‘evidential burden’ of proof as a distinct legal concept on numerous occasions but have not reconciled it with Lord Devlin’s interpretation of s. 3(3) EA in Jayasena, which limits proof to the ‘legal burden’. This article argues that the time has come for the Singapore courts to expressly banish the Jayasena ghost. The fairer approach would be to examine whether the defence falls within the categories of (a) mental condition defences, namely insanity, insane automatism, diminished responsibility and intoxication causing abnormality of mind, and (b) other general defences. Reliance on a defence within the former category will cause the accused to bear the legal burden of proof; he should only bear the evidential burden for the latter.

2019. Securities and Financial Services Regulation

The over-financialisation of the world has come under serious attack since the Global Financial Crisis, perhaps justifiably so. We are increasingly reminded of Churchill’s desire to make “finance less proud and industry more content”. Many of us in academia have attempted to do so in the only way we can, arguing for the importance of, amongst other things, SME funding. But technology has perhaps intervened to increase the challenges in this respect through its role in finance services, including P2P lending, cryptocurrency, tokenization and trading platforms etc. Banks and other traditional financial intermediaries like financial advisers have sometimes been side-lined. This may be of little loss to SMEs, however, given that banks have not been lending enough to them, preferring instead to lend to households and indirectly inflating property values. But even exchanges or platforms have been set up less to channel finance to SMEs but to facilitate even more financial activity, often trading in non-standard financial products rather than shares and bonds. Disputes in relation to these technology-related financial activities have increasingly been litigated in Singapore courts. This survey discusses these cases as well as those in other parts of the capital markets, including the regulation of bonds and share buybacks.

Psychology and psychiatry in Singapore courts: A baseline survey of the mental health landscape in the legal arena

Despite the increasing prevalence and involvement of mental health professionals in local courts, there has been no systematic study of the role played by these expert witnesses in Singapore courtrooms. An empirical study of all existing recorded cases on Lawnet (Singapore's legal database of all court trial cases) from 1975–2014 involving psychologists and psychiatrists was conducted. Results revealed that, not only were these mental health experts increasingly dotting the landscape of the legal arena, the variety of their contributions has also been gradually growing. Furthermore, there were marked differences across criminal, civil and custody cases with regards to the issues of how these experts were consulted and how their inputs utilized and appreciated by judges. Differences between psychology and psychiatry were also apparent. A future with more assistance rendered by these professions to courts, as well as greater synergy between law and mental health, was predicted for Singapore courts.

Insulating the Constitution: <i>Yong Vui Kong v. Public Prosecutor </i> [2010] SGCA 20

In May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v. PP. This article does not deal with the propriety of mandatory death penalty laws, or of the death penalty broadly, but instead focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but that it is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only if it has been “translated” by statute or judicial decision. Second, that the Singapore Constitution does not provide for a right against inhuman treatment or cruel punishment. The judgment thus effectively insulates the Singaporean legal sphere from developments occurring outside – by which is meant customary international law, as well as from Singapore’s colonial past.

THE LAW APPLICABLE TO THE ARBITRATION AGREEMENT: TOWARDS TRANSNATIONAL PRINCIPLES

AbstractThis article examines the problem of the law governing the validity of the arbitration agreement. The cases ofSulaméricain the English Court of Appeal and ofFirstLinkin the High Court of Singapore demonstrate that leading arbitration jurisdictions around the world can come to diametrically opposite results. In particular, there are currently diverging views as to whether the law applicable to the arbitration agreement should be the law chosen by the parties to govern their substantive legal relationship or the law of the seat of the arbitration. The issue is unlikely to be settled soon at international level. However, without embracing extreme approaches that purport to determine the validity of the arbitration agreement without reference to any national legal system, a more ‘transnational’ approach should be encouraged. This may emerge, based on three structured principles which would be desirable for international convergence, namely the non-discrimination principle, the estoppel principle and the validation principle. These principles can be developed without conflicting with the conventional conflicts-of-laws approach which was adopted by the English Court of Appeal inSulamérica.

Between Judicial Oligarchy and Parliamentary Supremacy: Understanding the Court's Dilemma in Constitutional Judicial Review

This article considers the dilemma that constitutional judicial review presents to the most well-meaning of judges — that of navigating the narrow and difficult road between parliamentary supremacy and judicial oligarchy. It examines the Singapore Court of Appeal’s delineation of legal and extra-legal considerations in view of Ronald Dworkin’s theory of adjudication in determining the constitutionality of section 377A of the Penal Code in Lim Meng Suang v. Attorney General. It proposes an alternative natural law approach to constitutional judicial review based on Radbruch’s formula, which helps courts to avoid the pitfalls of judicial idiosyncrasies and usurpation of legislative mandate while staying true to constitutionalism.

Daiichi wins $525 million for Ranbaxy deal fraud

An arbitration court in Singapore has ordered former shareholders of India’s Ranbaxy Laboratories to pay $525 million to Daiichi Sankyo. The Japanese company claimed that when it acquired Ranbaxy in 2008, the large shareholders with whom it negotiated had concealed the severity of regulatory issues that Ranbaxy was facing with the U.S. FDA. The award was leveled against New Delhi’s RHC Holding, an investment firm led by Malvinder Mohan Singh, the former CEO of Ranbaxy who had negotiated the sale to Daiichi Sankyo on behalf of his family. In a statement, RHC Holding said it would explore “further legal options to challenge the majority award.” The RHC Holding statement noted that one judge in the Singapore court, a former chief justice in India, had issued a dissenting opinion dismissing all claims. Daiichi took over Ranbaxy for $4.6 billion in June 2008 after agreeing to pay a premium for the 31%

THE RESOLUTION OF DISPUTES BEFORE THE SINGAPORE INTERNATIONAL COMMERCIAL COURT

AbstractThe jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developments—key to establishing Singapore as the regional hub for dispute resolution—requires careful working out and an evaluation is needed of the jurisdictional regime that applies to the SICC and the internal allocation of jurisdiction as between the SICC and the Singapore High Court sans the SICC, as well as the impact of the Hague Convention. This article focuses on explaining the in personam jurisdictional rules of the Singapore High Court that now includes the SICC division. Its chief objective is to offer the international community an overview of the working framework of Singapore's version of an ‘international’ commercial court.

RATIONALISING ANTICIPATORY BREACH IN EXECUTED CONTRACTS

RATIONALISING the doctrine of anticipatory breach is notoriously difficult. This may explain the complete lack of attempt by the UK Supreme Court to address its conceptual difficulties in its recent judgment in Bunge SA v Nidera BV [2015] UKSC 43; [2015] 3 All E.R. 1082. It is therefore of interest that the Singapore Court of Appeal in The “STX Mumbai” [2015] SGCA 35; [2015] 5 S.L.R. 1 explained why the doctrine of anticipatory breach can be applied to executed contracts (in the sense of being fully executed by the innocent party). Whilst anticipatory breach applies similarly under English law, the English courts have never considered the underlying justification, save to say in a case with a partially executed contract that “it would be very strange and hardly unworkable” if the innocent party had to wait until the time for performance (Moschi v Lep Air Services Ltd. [1973] A.C. 331, 356, per Lord Simon).

W(h)ither adversarial commercial dispute resolution?

International commercial arbitration is part of a wider tapestry of transnational commercial dispute resolution which encompasses both adversarial and consensual forums. While arbitration is pre-eminent in the field today, the increasing discontent directed at the international commercial arbitration industry, and adversarial commercial dispute resolution more generally, cautions us that the status quo cannot remain. This article will hence focus on the challenge to adversarial commercial dispute resolution posed by consensual forums like mediation, and the future of transnational commercial dispute resolution in this changing world. Singapore Rules of Court, Order 110 (2015) Rio Tinto PLC v Vale SA US District Court (SDNY) (2015) Emirates Trading Agency LLC v Prime Mineral Exports Private Limited, English High Court (2014) International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd, Singapore Court of Appeal (2014) HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore Pte Ltd, Singapore Court of Appeal (2012) SIAC (Singapore International Arbitration Centre)-SIMC (Singapore International Mediation Centre) Arb-Med-Arb Protocol (2014) IBA (International Bar Association) Guidelines on Party Representation in International Arbitration (2013) AQZ v ARA, Singapore High Court (2015)

Equality and Singapore’s First Constitutional Challenges to the Criminalization of Male Homosexual Conduct

In 2013, in Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General1 and Tan Eng Hong v Attorney-General,2 the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of ‘gross indecency’ between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court of Appeal in Lim Meng Suang and another v Attorney-General3 with slight differences in the reasoning. This article examines the courts’ analysis of equality law, and submits in particular that the courts ought to re-evaluate whether they should apply a presumption of constitutionality, refuse to assess the legitimacy of the object of the impugned provision, and rely on a standard of mere reasonableness or lack of arbitrariness when determining if a rational relation exists between the provision’s object and the differentia underlying a classification used in the provision.

An uncertain shield—res judicatain arbitration

Ending disputes is an important objective of international arbitration. Most arbitration awards are voluntarily respected, so the protection offered by the res judicata doctrine is rarely tested. As a result, the nuances of its application are not always well understood. This article explores the scope of cause of action estoppel, issue estoppel, and the abuse of process doctrine in the context of international arbitration proceedings. The article provides practical guidance in the scope and limits of these principles before UK, Singapore, and Australian courts. Ultimately, the author concludes that practitioners need to be aware of the significant limitations of the res judicata doctrine to accurately evaluate the risk that an arbitral award may not fully determine a dispute.

THE OPPRESSION REMEDY—CLARIFICATIONS ON BOUNDARIES

The impetus behind the introduction of the statutory provision was the perceived need to protect the vulnerable minority shareholder against the unfair manipulation of the majority rule. Its raison d’être is clearly personal. And, as it is an important tool in the minority shareholder's arsenal, it is necessary that the scope of its application be sufficiently wide. The provision is therefore couched in expansive terms. This has led to questions being raised as to the scope of its application. Specifically, can a shareholder attempt to vindicate corporate claims through the provision? This short paper considers this issue against the background provided by the recent Singapore Court of Appeal decision of Ng Kek Wee v Sim City Technology Ltd.

Investor-State Arbitration before the High Courtof Singapore: Territoriality, Nationality andArbitrability

This case note analyses the recent jurisdictional decision of the High Court of Singapore in Laos v Sanum Investments, concerning an alleged expropriation by the Laos government of an investment made by an entity incorporated in Macau. The Court's key finding was that the bilateral investment treaty between China and Laos was not intended to extend to Macau. This note questions the Court's focus on the territorial scope of the bilateral investment treaty, as opposed to the nationality of the investor, and appraises whether this case represents a departure from the ‘pro-arbitration’ reputation of Singaporean courts in international investment disputes.

Protecting Human Rights: The Approach of the Singapore Courts

Constitution is the supreme law of Singapore, but have the courts unnecessarily limited their role of upholding the Constitution? This article is based on a speech delivered at an event at the Conrad Centennial Singapore on 4 December 2014 entitled The Role of the Judiciary in the Promotion and Protection of Human Rights, organized by the Delegation of the European Union to Singapore to commemorate Human Rights Day.

Of Links and Legal Merits––Good Faith in the Statutory Derivative Action in Singapore

ABSTRACTAn applicant for leave to bring a statutory derivative action in Singapore is required to satisfy the court as to, inter alia, his good faith. Although the statutory language places the burden of doing so on the applicant, Singapore courts have tended to assume the presence of good faith if the claim is a legitimate one. This approach, which denigrates the requirement of good faith, was recently disapproved by the Singapore Court of Appeal. This notwithstanding, subsequent cases have reverted to the earlier position, casting doubt on the utility of the requirement. This paper considers good faith, and argues that it was included to address a distinct concern that cannot be met by a consideration of the viability of the claim and the company's interests in pursuing the same, a concern that arose out of the peculiar function of the statutory derivative action in opening up shareholder access to corporate litigation.

Interpreting the United Nations Security Council Resolutions by the Domestic Courts: The Judgment of the High Court of Singapore on the Iranian Nuclear Program

Interpreting the United Nations Security Council Resolutions by the Domestic Courts: The Judgment of the High Court of Singapore on the Iranian Nuclear Program

RESULTING TRUSTS: A VICTORY FOR UNJUST ENRICHMENT?

WHEN do resulting trusts arise, and why? These questions were the subject of serious inquiry in the 1990s, following influential work by Peter Birks and Robert Chambers, which argued that resulting trusts arise to reverse unjust enrichment. The House of Lords in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] A.C. 669 remarked that the Birks/Chambers thesis was “avowedly experimental, written to test the temperature of the water”, but that “the temperature of the water must be regarded as decidedly cold”. Following Westdeutsche, the issue has received little consideration, although academic interest in the debate remains. The recent decision of the Singapore Court of Appeal in Chan Yuen Lan v See Fong Mun [2014] SGCA 36 considered this issue in detail and is therefore worth examining.