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Articles 1 - 30 of 90
Full-Text Articles in Law
Belt And Road Initiative: Legal Mechanism To Recover Stolen Assets, Veltrice Tan
Belt And Road Initiative: Legal Mechanism To Recover Stolen Assets, Veltrice Tan
Singapore International Dispute Resolution Academy
Purpose: This paper aims to determine the types of legal mechanisms that authorities can use to recover stolen assets for and from China. Design/methodology/approach: Newspaper articles and books are examined as are relevant reports by various regulatory authorities and academic institutions. Findings: The effectiveness of legal mechanisms in the recovery of stolen assets may be affected by issues such as the difficulties in tracing illicit funds, the ambiguous nature of “value” as well as the rise in technology. Research limitations/implications: There are limited data available in relation to the prevalence of corrupt officials along the Belt and Road Initiative and …
The Belt And Road Initiative: Conflict Of Laws And Dispute Resolution, Veltrice Tan
The Belt And Road Initiative: Conflict Of Laws And Dispute Resolution, Veltrice Tan
Singapore International Dispute Resolution Academy
Purpose: This paper aims to determine the adaptability of China’s legal system in recognizing and enforcing foreign judgements in China. Design/methodology/approach: Academic articles, case law and books are examined as are relevant reports by various regulatory authorities and organizations. Findings: Historically, Chinese courts have strictly adhered to “de facto reciprocity”, which made it difficult for foreign judgements to be recognized and enforced in China. Fortunately, Chinese courts have since abandoned their rigid adherence to de facto reciprocity, and have instead, used flexible tests of reciprocity such as de jure reciprocity, reciprocal commitment and reciprocal understand/consensus. Accordingly, this would facilitate the …
Effect Of Amended Claim On A Warrant Of Arrest In An Admiralty Action In Rem, Ming En Tor
Effect Of Amended Claim On A Warrant Of Arrest In An Admiralty Action In Rem, Ming En Tor
Research Collection Yong Pung How School Of Law
Suppose I have filed my statement of claim endorsing the writ in rem, and the Registrar has issued a warrant of arrest reflecting this claim. I then proceed to execute a warrant of arrest to arrest a vessel. Now, suppose, however, I later discover that the original claim stated in the warrant of arrest does not exist. I then substitute the original claim with a completely different claim altogether. Can the warrant of arrest be upheld based on the amended claim and/or cause of action, even if it was not so pleaded initially when the action in rem commenced? This …
Cyberoperations And Sovereignty In International Law, Joel Wei Xuan Fun
Cyberoperations And Sovereignty In International Law, Joel Wei Xuan Fun
Singapore Law Journal (Lexicon)
The cyberspace is sometimes seen as having no jurisdictional boundaries, given that no single state controls the entirety of the cyberspace. At the same time, given how pervasive the cyberspace has become today, many important interests of states now lie in the domain of cyberspace. This uneasy tension has led to many questions involving the intersectionality between the state’s sovereignty over its territory and the cyberspace, which is exacerbated when states use the cyberspace to conduct their myriad operations. This paper seeks to delineate permissible and impermissible cyberoperations and argues that the present international law on sovereignty is sufficiently robust …
The Geoeconomics Of Belt And Road Disputes: A Case Study On The China-Pakistan Economic Corridor, Mark Mclaughlin
The Geoeconomics Of Belt And Road Disputes: A Case Study On The China-Pakistan Economic Corridor, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
This article argues that the dovetailing economic, geopolitical, and security interests that underpin the Belt and Road Initiative demands a dispute resolution mechanism that focuses on broader interests and legal rights. Using the China-Pakistan Economic Corridor (CPEC) as a case study, it identifies the conditions in which Chinese investors could have initiated an investment arbitration but did not. This can be explained by the rights-based orientation of investment treaties failing to reflect the interests of multi-project initiatives. Instead, alternative methods of home state intervention, such as state-funded political risk insurance, are used to protect investors. In other words, the political …
Regulating Artificial Intelligence In International Investment Law, Mark Mclaughlin
Regulating Artificial Intelligence In International Investment Law, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
The interaction between artificial intelligence (AI) and international investment treaties is an uncharted territory of international law. Concerns over the national security, safety, and privacy implications of AI are spurring regulators into action around the world. States have imposed restrictions on data transfer, utilised automated decision-making, mandated algorithmic transparency, and limited market access. This article explores the interaction between AI regulation and standards of investment protection. It is argued that the current framework provides an unpredictable legal environment in which to adjudicate the contested norms and ethics of AI. Treaties should be recalibrated to reinforce their anti-protectionist origins, embed human-centric …
Service Out Under The New Rules Of Court, Ian Mah, Aaron Yoong
Service Out Under The New Rules Of Court, Ian Mah, Aaron Yoong
Research Collection Yong Pung How School Of Law
The new Rules of Court 2021 seek to provide a more accessible and efficient justice system. The extensiveness of the overhaul, however, brings with it as much unfamiliarity as excitement. This legislation comment examines the changes in the provisions governing service out of jurisdiction and argues that the textual changes also effect substantive changes to how the law is applied. This comment also explores the related issues on the grant of Mareva injunctions in aid of foreign proceedings under the new Rules of Court 2021.
New Investment Rulemaking In Asia: Between Regionalism And Domestication, Pasha L. Hsieh
New Investment Rulemaking In Asia: Between Regionalism And Domestication, Pasha L. Hsieh
Research Collection Yong Pung How School Of Law
The article analyses investment rulemaking in new Asian regionalism in the context of evolving national legislation and regional trade strategies. It argues that the Association of Southeast Asian Nations (ASEAN) and the Regional Comprehensive Economic Partnership (RCEP) represent Asia's pragmatic incrementalism in reforming the investment regime. The process reinforces the relationship between international economic law and domestic investment laws. In tandem with transforming international investment agreements, ASEAN expedited investment and services trade, and established the modern investor–state dispute settlement (ISDS) mechanism. The RCEP further buttresses the ASEAN centrality in regional frameworks by consolidating ASEAN Plus One agreements. Yet, the RCEP's …
Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong
Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong
Research Collection Yong Pung How School Of Law
Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …
Constitutional Traditions As Boundaries In Standardizing Administrative Rulemaking Through Trade Agreements, Han-Wei Liu, Ching-Fu Lin
Constitutional Traditions As Boundaries In Standardizing Administrative Rulemaking Through Trade Agreements, Han-Wei Liu, Ching-Fu Lin
Research Collection Yong Pung How School Of Law
Pioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.
Mapping Sustainable Development In Investment Treaties: An Analysis Of Asean States' Practice, Mark Mclaughlin
Mapping Sustainable Development In Investment Treaties: An Analysis Of Asean States' Practice, Mark Mclaughlin
Research Collection Yong Pung How School Of Law
The interaction between sustainable development and international investment treaties is of growing concern. Could investment protection stymie health regulation? Will States be sued for introducing measures to tackle climate change? A growing body of sustainability-related case law is evidence that arbitral tribunals balance investment obligations against States’ ability to regulate for national security, health, the environment, labour rights, transparency, and corporate social responsibility. Against this background, this paper maps sustainable development issues in 371 bilateral investment treaties (hereinafter “BITs”) concluded by the Association of Southeast Asian Nations (ASEAN) States. It finds that only 26% of these treaties make any reference …
The Inclusion Of Anti-Corruption Clauses In International Investment Agreements And Its Possible Systemic Implications, Yueming Yan
Research Collection Yong Pung How School Of Law
Empirical studies have demonstrated a recent trend of incorporating anti-corruption provisions into international investment and trade agreements. Some treaties, i.e. the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, include both substantive and procedural obligations such as establishing corruption as criminal offenses, promoting integrity among public officials, and raising public awareness of the threat of corruption. Others like Japan prefer to insert rather general and abstract provisions in its bilateral investment treaties, stating that they agree to take efforts to prevent and combat corruption without indicating specific measures. This article attempts to take a closer look at these anti-corruption provisions by …
Extraterritoriality Of Chinese Law: Myths, Realities And The Future, Zhengxin Huo, Man Yip
Extraterritoriality Of Chinese Law: Myths, Realities And The Future, Zhengxin Huo, Man Yip
Research Collection Yong Pung How School Of Law
While China strongly opposes the US practice of ‘long-arm jurisdiction’, it has decided to build its own legal system of extraterritoriality. This paradox reflects the crossroads at which China finds itself currently. Being a country weaker than the sole global superpower, it needs to stand firmly against the American ‘legal bullyism’ by invoking the shield of territorial sovereignty. Yet, as an emerging world power, it is in China’s interest to establish a legal system of extraterritoriality to safeguard its own national interests that extend globally. This article has two aims. First, it provides a comprehensive overview of the current model …
Covid-19 And The 2020/21 International Moots Season, Siyuan Chen
Covid-19 And The 2020/21 International Moots Season, Siyuan Chen
Research Collection Yong Pung How School Of Law
This is the seventh annual review of Singapore’s performance in international moot court competitions. While the previous season already felt the ravaging effects of the pandemic, it was more of the same this season, although this time round, all the major competitions were prepared to go online.
Covid-19 And The 2020/21 International Moots Season, Siyuan Chen
Covid-19 And The 2020/21 International Moots Season, Siyuan Chen
Research Collection Yong Pung How School Of Law
This is the seventh annual review of Singapore’s performance in international moot court competitions. While the previous season already felt the ravaging effects of the pandemic, it was more of the same this season, although this time round, all the major competitions were prepared to go online.
Choice Of Law Governing A Contract Where Its Existence Is In Dispute: Clarifications From The Singapore International Commercial Court In Lew, Solomon V Kaikhushru Shiavax Nargolwala, Shou Yu Chong
Research Collection Yong Pung How School Of Law
The Singapore International Commercial Court’s judgment in Lew, Solomon v Kaikhushru Shiavax Nargolwala [2020] 3 SLR 61 is noteworthy as it heralds a modest development in Singapore private international law, especially in respect to the not uncommon issue of disputes over cross-border contracts where its existence is challenged. This case represents one of the handful of Singapore precedents which directly addresses the difficult conundrum where both the governing law and the existence of the underlying contract are in dispute. Under this context, it articulates a default choice of law position – the lex fori – where it is impossible to …
What’S Happening In International Mediation In 2021? [Sidra Survey], Nadja Alexander, Samantha Clare Man Xin Goh, Ryce Lee
What’S Happening In International Mediation In 2021? [Sidra Survey], Nadja Alexander, Samantha Clare Man Xin Goh, Ryce Lee
Research Collection Yong Pung How School Of Law
The Singapore International Dispute Resolution Academy (“SIDRA”) issued the global International Dispute Resolution Survey: 2020 Final Report (the “SIDRA Survey”) on 3 July 2020, which studied the preferences, experiences, and perspectives of legal users (lawyers and legal advisers) and client users (corporate executives and in-house counsel) with regard to, among other mechanisms, international commercial mediation. Previous blogs have commented on the Survey findings. The SIDRA Survey was followed by a qualitative study conducted between November to December 2020, consisting of in-depth interviews held with 18 Legal Users and Client Users from 11 countries (“SIDRA Interviews”). This post focuses on some …
Form Or Substance? Excluding Liability For Misrepresentation, Zhi Jia Koh
Form Or Substance? Excluding Liability For Misrepresentation, Zhi Jia Koh
Singapore Law Journal (Lexicon)
Exclusion of liability for misrepresentation has long been controversial. There are many ways in which one could go about doing it, namely, through express exclusion of liability clauses, entire agreement clauses, non-reliance clauses, and maybe even basis clauses. The key question is whether such clauses are subject to s 3 of the Misrepresentation Act, which prevents a contracting party from escaping liability when it is unreasonable to do so. Notably, English jurisprudence has taken the view that any term that excludes liability for misrepresentation in effect would be subject to the test of reasonableness. Singapore appears to be moving in …
Governing Science And Technology Under The International Economic Order: Regulatory Divergence And Convergence In The Age Of Megaregionals By Shin-Yi Peng, Han-Wei Liu And Ching-Fu Lin, Henry S. Gao, Weihuan Zhou
Governing Science And Technology Under The International Economic Order: Regulatory Divergence And Convergence In The Age Of Megaregionals By Shin-Yi Peng, Han-Wei Liu And Ching-Fu Lin, Henry S. Gao, Weihuan Zhou
Research Collection Yong Pung How School Of Law
Trade and technology have a long history of interdependence. It was the trade along the ancient silk road that helped to spread the technologies of China – such as paper-making, gun power, compass, and moveable type printing – to Europe. These technologies helped to launch the Renaissance, the Reformation, and the Great Discoveries, which in turn set in motion globalization as we know today. As we enter the third decade of the twenty-first century, the role of science and technology grows even stronger in international trade. For example, the advancement of information and communications technology (ICT) has greatly facilitated the …
Two Decades Of Laws And Practice Around Screen Scraping In The Common Law World And Its Open Banking Watershed Moment, Han-Wei Liu
Two Decades Of Laws And Practice Around Screen Scraping In The Common Law World And Its Open Banking Watershed Moment, Han-Wei Liu
Research Collection Yong Pung How School Of Law
Screen scraping—a technique using an agent to collect, parse, and organize data from the web in an automated manner—has found countless applications over the past two decades. It is now employed everywhere, from targeted advertising, price aggregation, budgeting apps, website preservation, academic research, and journalism, to name a few. However, this tool has raised enormous controversy in the age of big data. This article takes a comparative law approach to explore two sets of analytical issues in three common law jurisdictions, the United States, the United Kingdom, and Australia. As the first step, this article maps out the trajectory of …
Us-China Trade War: A Way Out?, Weihuan Zhou, Henry Gao
Us-China Trade War: A Way Out?, Weihuan Zhou, Henry Gao
Research Collection Yong Pung How School Of Law
Recently, a group of eminent Chinese/US economists and legal scholars issued a thought-provoking Joint Statement on ‘US–China Trade Relations: A Way Forward’. However, the Joint Statement does not provide practical solutions to the real issues in the bilateral negotiations. Moreover, by granting excessive policy space to the two largest trading nations, it would encourage them to further deviate from WTO rules and undermine the multilateral trading system. Drawing on the Theory of Distortions and Welfare, we put forward an alternative framework for the parties to tackle protectionist and trade distortive policy instruments while leaving sufficient policy space for them to …
Can International Economic Agreements Combat Covid‐19?, Pasha L. Hsieh
Can International Economic Agreements Combat Covid‐19?, Pasha L. Hsieh
Research Collection Yong Pung How School Of Law
The COVID-19 pandemic has significantly disrupted the international economic order. According to the World Trade Organization (WTO), the unprecedented health crisis may sink global trade by 32% in 2020.236 As an island state highly dependent on trade, Singapore is expected to encounter a 5.8% contraction in gross domestic product, marking its “worst recession since independence.”237 The number of confirmed COVID-19 cases in Singapore surpassed the 45,000 mark on July 7, 2020.238 Most cases have occurred in foreign worker dormitories, whereas the spread of the disease in the rest of the community has been limited. To gradually resume economic activities and …
Sidra International Dispute Resolution Survey: 2020 Final Report, Nadja Alexander, Vakhtangi Giorgadze, Allison Goh
Sidra International Dispute Resolution Survey: 2020 Final Report, Nadja Alexander, Vakhtangi Giorgadze, Allison Goh
Research Collection Yong Pung How School Of Law
The International Dispute Resolution Survey: 2020 Final Report presents the findings of the Singapore International Dispute Resolution Academy’s inaugural examination into the preferences, experiences, practices and perspectives of international dispute resolution users around the globe. The survey examined three major international dispute resolution mechanisms: international commercial arbitration, international commercial mediation, international commercial litigation, as well as hybrid dispute resolution mechanisms such as mediation-arbitration and arbitration-mediation. The survey also inquired into the use of technology in international dispute resolution, such as predictive analytical tools and negotiation support systems, and asked the users to express whether they were satisfied with the use …
Book Review: The Uncitral Model Law And Asian Arbitration Laws: Implementation And Comparison, Darius Chan
Book Review: The Uncitral Model Law And Asian Arbitration Laws: Implementation And Comparison, Darius Chan
Research Collection Yong Pung How School Of Law
The project embodied by this book - a comparative survey of how every clause in the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration is implemented across 12 Asian jurisdictions - is as ambitious as it is breathtaking. Yet, if anyone can deliver on this scale, it would be Professor Gary Bell, an expert in arbitration law and practice based at the National University of Singapore (NUS) since 1996. Professor Bell is currently Director of the Asian Law Institute and Director of two NUS LLM programmes: Arbitration and Asian Legal Studies. He enjoys the …
Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals, Iris Ng, Melissa Ng, Andre Soh, Siyuan Chen
Five Recurring Problems In International Arbitration: The Relationship Between Courts And Arbitral Tribunals, Iris Ng, Melissa Ng, Andre Soh, Siyuan Chen
Research Collection Yong Pung How School Of Law
In recent years, five recurring problems regarding the relationship between courts and tribunals have gained prominence due to case law developments. These run the gamut from preliminary issues with the arbitration agreement to disputes at the enforcement stage. This article examines these problems in detail, with a view to shed new light on the question of what it means for a jurisdiction to be “pro-arbitration”. The authors argue that the oft-repeated binary categorisation of “pro-arbitration” and “anti-arbitration” jurisdictions is too broad-brush. Instead, there is no easy answer to what constitutes a truly “pro-arbitration” approach, and no one-size-fits-all approach to being …
Moving Towards Harmonisation In The Recognition And Enforcement Of Foreign Judgment Rules In Asia, Adeline Chong
Moving Towards Harmonisation In The Recognition And Enforcement Of Foreign Judgment Rules In Asia, Adeline Chong
Research Collection Yong Pung How School Of Law
This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation in the region given the plans for closer economic integration in the region. …
In Whose Best Interests? Regulating Financial Advisers, The Royal Commission, And The Dilemma Of Reform, Han-Wei Liu, Toan Le, Weiping He, Michael Duffy
In Whose Best Interests? Regulating Financial Advisers, The Royal Commission, And The Dilemma Of Reform, Han-Wei Liu, Toan Le, Weiping He, Michael Duffy
Research Collection Yong Pung How School Of Law
Following the Future of Financial Advice reforms, the ‘suitability’ and ‘appropriateness’ focus for financial advice has been relocated and supplemented by a ‘best interests’ focus in s 961B of the Corporations Act 2001 (Cth). Yet, as the Australian Government’s Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry has pointed out, structural issues may often work against best interests being paramount. Further, moves to make the statutory obligation replicate a fiduciary obligation have been resisted in the consultative process that developed s 961B and related obligation sections and any replication is far from clear. Another key issue …
Asia’S Response To The Us Indo-Pacific Strategy: Building The Rcep: Legal And Political Implications, Pasha L. Hsieh
Asia’S Response To The Us Indo-Pacific Strategy: Building The Rcep: Legal And Political Implications, Pasha L. Hsieh
Research Collection Yong Pung How School Of Law
The Trump administration declared the “Free and Open Indo-Pacific” (FOIP) strategy as the new U.S. policy on Asia in 2017. This new strategy will have far-reaching implications for U.S.-Asia relations and global governance. The FOIP is conventionally perceived to focus on security dimensions. By “free,” the United States expects all countries “to exercise their sovereignty free from coercion by other countries.”1 The qualifier, “open,” is meant to refer to regional connectivity, in particular including freedom of navigation.2 Notably, the economic dimensions of this component also envision “fair and reciprocal trade” and “transparent agreements.”
The Chinese (Taiwan) Yearbook Of International Law And Affairs: Contributing To The Grotian Moment In Asia, Ying-Jeou Ma, Chun-I Chen, Pasha L. Hsieh
The Chinese (Taiwan) Yearbook Of International Law And Affairs: Contributing To The Grotian Moment In Asia, Ying-Jeou Ma, Chun-I Chen, Pasha L. Hsieh
Research Collection Yong Pung How School Of Law
The contribution examines critical developments of the Chinese (Taiwan) Yearbook of International Law and Affairs and its contribution to the ‘Grotian moment’ in Asia. The Yearbook is the first publication specialized in international law in Greater China, a Chinese-speaking region that includes Mainland China, Taiwan, Hong Kong and Macau. The founding of the Yearbook in 1981 was a response to the unique status of the Republic of China (ROC) rendered after its loss of representation in the United Nations under General Assembly Resolution 2758 of 1971. Over the past 40 years, the Yearbook has become an intellectual depository of research …
Reform Of Singapore's Foreign Judgment Rules, Adeline Chong
Reform Of Singapore's Foreign Judgment Rules, Adeline Chong
Research Collection Yong Pung How School Of Law
On 3rd October, the amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) came into force. REFJA is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933, but in this recent round of amendments has deviated in some significant ways from the 1933 Act. The limitation to judgments from “superior courts” has been removed. Foreign interlocutory orders such as freezing orders and foreign non-money judgments now fall within the scope of REFJA. So too do judicial settlements, which are defined in identical terms to the definition contained in the Choice of Court Agreements Act 2016 (which enacted the …