Law Commons^™

When Foreigners Influence Domestic Change: A Case For Transnational Advocacy, Knowledge@Smu

Knowledge@SMU

Like it or not, socio-environmental issues extend beyond geopolitical boundaries. Southeast Asians might remember the Indonesian haze that had affected the region's air quality, for instance – an issue that was eventually addressed with the help of foreign groups; or the recovery efforts of the 2004 tsunami, which also involved many international entities. According to Yooil Bae, a political science professor at SMU, foreign groups can bring new insights and methods. But while there are benefits to knowledge-sharing and cooperation, the process can be tricky, especially when such advocacy groups clash with the state.

Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson

Research Collection Yong Pung How School Of Law

In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.

Why Egregious Errors Of Law May Yet Justify A Refusal Of Enforcement Under The 'New York Convention', Seng Wei, Edward Ti

Research Collection Yong Pung How School Of Law

Parties on the losing side in international arbitration have long argued that an error of law is a defence to the enforcement of foreign awards. Citing article V(2)(b) of the New York Convention, such parties have argued that a manifest error of law is a violation of public policy. While national courts have generally paid little heed to this line of argument, this article seeks to raise the possibility that there may yet be the exceedingly rare instance in which a court should preclude enforcing an award marred by a hideous error of law. Limited review of an arbitrator's application …

An Entity Sui Generis In The Wto: Taiwan's Wto Membership And Its Trade Law Regime, Han-Wei Liu

Research Collection Yong Pung How School Of Law

As one of the founding members of the General Agreement on Tariffs and Trade (GATT), Taiwan (the Republic of China or ROC) - the 17th largest economy, was granted accession to the World Trade Organization (WTO) in November 2001 after its observer status of eleven years. Taiwan, classified by most commentators as an "unrecognized state" or an "entity sui generis", has been excluded from most of the major international organizations. Taiwan's accession to the WTO, therefore, is considered to be an important breakthrough in diplomacy for the past decades. Notwithstanding its WTO membership, the Taiwanese Government has employed numerous trade …

China’S Strategy For Free Trade Agreements: Political Battle In The Name Of Trade, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

Compared with Europe and America, East Asia is a latecomer in the new gold-rush of Free Trade Agreements (FTAs). In this process, China has played a significant role. This is not only due to the growing economic clout of China, but also because China has taken a conscious strategy to push for economic integration in the region. Thus, for the benefits of the countries in the region, it is very important to understand China’s FTA strategy. This article starts with the evolving picture of China’s FTA web, then discusses the key components of China’s FTA strategy, and concludes by noting …

The Use And Misuse Of Well-Known Marks Listings, Kung-Chung Liu, Eric Wang, Xinliang Tao

Research Collection Yong Pung How School Of Law

The continual strengthening of the protection for well-known marks has been one of the features of international trademark development in the post-TRIPS era. In many countries well-known marks can now be granted full trademark right and protection merely from the fact that they are well-known; well-known marks can also be protected against dilution or even the likelihood thereof, and against comparative advertising that is discrediting or denigrating. However, for market late-comers seeking a new trademark, there is no clear way to determine if a particular mark is well-known. Without this certainty the applicant cannot calculate the risk of having the …

Effective Use Of Non-Reliance Clauses: Satisfying Lowe V Lombank, Kee Yang Low

Research Collection Yong Pung How School Of Law

The inclusion in contracts of “non-reliance” clauses, as a means of pre-empting assertions of misrepresentation, has become commonplace. The validity and effectiveness of such clauses is another matter. This article discusses how a non-reliance clause may act as an evidential estoppel.

Donald Tsang's Vision For An Integrated Asia, Knowledge@Smu

Knowledge@SMU

Stem protectionism, step-up education, reduce our reliance on the West, emphasize strong Asian values, integrate currencies and promote trade partnerships – these are items that show up on Donald Tsang's wish list of things by which Asia might be united. What's more, he believes his vision of an Asian bloc will likely take shape within this very century. Speaking at SMU's Ho Rih Hwa Leadership in Asia public lecture series, the Hong Kong Chief Executive explained why Asian countries must forge closer links with one another, and how the region can eventually present itself to be a foundation of stability …

Tea Leaves Of The Economy: General Elections In 2010?, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Incumbent governments with good economic track records would typically capitalise on economic downturns to seize a political advantage by calling for early elections. Will the ruling People's Action Party do so nect year in view of the strong economic perormances in recent months?

A Scorecard For The P4: Full Or Fail?, Henry S. Gao

Research Collection Yong Pung How School Of Law

Since its inception in 2005, the Trans-Pacific Strategic Economic Partnership Agreement (the ‘P4 Agreement’) has been hailed as a ‘high standard’ free trade agreement (FTA). However, there has never been any official explanation as to how the assessment of the Agreement is conducted. Now it’s exam time again, let’s see how the Agreement performs in ‘Free Trade 101’.

Freedom Of Speech And Contempt By Scandalizing The Court In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

The offence of scandalizing the court, a form of contempt of court, is regarded as obsolete in the United Kingdom. However, it continues to be imposed in other Commonwealth nations and remains very much alive in Singapore, having been applied in a crop of cases between 2006 and 2009. This short commentary examines one of these cases, Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103, which has generated worldwide interest as it arose out of articles published in the Wall Street Journal Asia. In Hertzberg, the High Court of Singapore held that utterances by an alleged contemnor …

Thio Li-Ann On Free Speech, Social Values And Sustainable Democracy, Knowledge@Smu

Knowledge@SMU

It has been two years since Thio Li-ann delivered the parliamentary speech that would thrust her into the epicentre of a nationwide debate. Her arguments for the continued criminalisation of homosexual acts in Singapore earned her both praises and death threats. And it was perhaps this incident that first led her to scrutinise, more deeply than before, the notion of free speech in society. "Equality is a fundamental tenet that we all have, as citizens of a democracy. But what happens if you have a bigger amplifier or a louder voice than I do? Can speech kill speech?" she asked …

The Effectiveness Of Acceptances Communicated By Electronic Means, Or – Does The Postal Acceptance Rule Apply To Email, Eliza Mik

Research Collection Yong Pung How School Of Law

The ‘traditional’ classi?cation into ‘instantaneous’ and ‘non-instantaneous’ methods of communication must be abandoned. As all Internet transmissions are instantaneous, the choice between the principle of receipt and the postal exception must be based on other criteria. The focus must be shifted from communication devices to the characteristics of the communication process. The latter resembles either dealings face-to-face or dealings at a distance. This simple division should remain the basis for all analyses. Instantaneity and control are two of many characteristics of face-to-face dealings and are not the only factors to be taken into account when making the choice between the …

In Re Sigma Finance Corporation (In Administrative Receivership) And In Re The Insolvency Act 1986 [2009] Uksc 2 (29 Oct 09): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other shortterm creditors.

Sigma Finance Corporation And In Re The Insolvency Act 1986 [2009] Uksc 2 (Contract, Contractual Terms): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp1 was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other short-term creditors.

Inter-Disciplinary Approaches To International Law: Legal & Non-Legal Rituals For Genocide Survivors, Knowledge@Smu

Knowledge@SMU

Legal processes, however powerful and authoritative they might be, are not cure-alls. Case in point: victims of the Khmer Rouge regime in Cambodia are still seeking healing and closure thirty years on. While the international tribunal might be able to hold the perpetrators accountable, there is a disconnect between what this international legal procedure can achieve, and what the victims want, notes SMU law professor Mahdev Mohan. To help the victims, he said non-legal actions are needed.

Negotiation And Mediation In 3d: Completing The Models For Practice And Education, Jill Howieson, Nadja Alexander

Research Collection Yong Pung How School Of Law

Reflecting on two major conferences held in September 2009 at the LEADR conference, Kongress, and the 36th Australian Legal Convention around the same time, it appears that ADR in Australia might be going ‘back to the future’. Discussion of the 1970s concept of the ‘multi-door courthouse’ as a model for Australian courts in the 21st century and an acknowledgment of the enduring essence of the 1980s interest-based negotiation model at both conferences, created a curious sense of déjà vu — and raised the question: where do we go from here?

The Trans-Pacific Strategic Economic Partnership Agreement: High Standard Or Missed Opportunity?, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

When the Trans-Pacific Strategic Economic Partnership Agreement (P4 Agreement) was signed in 2005, it was hailed as a “high-standard” agreement that could serve as a model within the Asia-Pacific region and attract other countries in the region to join as members. This claim seems to have received support from recent events, such as the launch of the accession negotiation by the US and the expression of interests from Australia, Peru and Vietnam.

This article provides a critical analysis on whether the P4 Agreement is a “high-standard” agreement as its members have claimed. In the view of the author, the P4 …

Pluralism In Singapore: Something To Talk About, Knowledge@Smu

Knowledge@SMU

Diverse societies may offer richer experiences and perhaps, higher creativity. Cities like Tokyo, New York and London are often held up as shining examples of how diversity can live alongside affluence. But diversity, in and of itself, does not guarantee a cosmopolitan society – especially when differences between groups go unresolved. Such issues were raised at Singapore’s National Day Rally 2009, where examples of inter-group tensions were spelt out. How can Singapore, with her multicultural, multi-ethnic and multi-religious inhabitants, inculcate a wider appreciation for pluralism? And is it possible for groups that disagree fundamentally on contentious issues, to co-exist peacefully?

The Tricky Business Of Copying, Stealing And Protecting, Knowledge@Smu

Knowledge@SMU

People click “yes” and “agree” on pop-up windows on their computer screens without much thought and without really knowing what they are agreeing to. But does the act of clicking bind a person, contractually? Terms and conditions presented on electronic devices have been known to be lengthy and dreary, thereby unappealing to the masses. Most people do not have the patience to read the entire list of items, so they choose, instead, to turn in their rights altogether – blindly. Why have people become indifferent and what are the implications for businesses? Andrea Matwyshyn, a speaker at the Wharton-SMU Research …

Inducing Breach Of Contract, Conversion And Contract As Property, Pey Woan Lee

Research Collection Yong Pung How School Of Law

This article seeks to understand contractual rights through an examination of the possible ‘property’ content in contracts in the context of the inducement tort and conversion. It argues that, contrary to popular perception, contracts and property are different shades of a similar phenomenon. Not being a reified ‘thing’ with stable features and structure, property is a relative rather than an absolute concept. To determine whether the holder of an intangible resource ought to be conferred with ‘property’ or exclusive control of access to such resource, one has to evaluate the relevant practical, legal and moral considerations. Applied to the context …

Remarks, More Remarks And A Grounds Of Decision: One Judgment Too Many? Tt Durai V Public Prosecutor, Unreported Magistrate's Appeal, S. Chandra Mohan

Research Collection Yong Pung How School Of Law

In May 2008, the High Court dismissed the appeal of former NKF CEO, T T Durai, against his conviction and sentence. What is little known is that one of Durai's six grounds of appeal was in fact upheld. The appellate judge subsequently devoted nine out of 12 paragraphs of his four-page Grounds of Decision, to explain is reasons for doing so. Although this ruling did not affect the final outcome of the Durai appeal, it has to some extent helped to settle a question that has vexed criminal law practitioners in recent years. This concerns the legality and propriety of …

Good Faith As The Absence Of Bad Faith: The Excluder Theory In Mediation, Nadja Alexander

Research Collection Yong Pung How School Of Law

Views vary as to the behaviour necessary to constitute good faith — or equivalent concepts such as genuine and reasonable attempts — in mediation and as to behaviour which falls below the standard.

The Networked Electorate: The Internet And The Quiet Democratic Revolution In Malaysia And Singapore, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This paper is intended to be a contribution to the literature on claims of the democratising effect of the Internet. The paper begins by setting out the arguments and also critiques of claims of the democratising power of the Internet. In order to test the validity of these arguments, the author will undertake a comparative study of the impact of the Internet on recent general elections in Malaysia and Singapore. The study will demonstrate that in the case of Singapore, the Internet has merely exerted some pressure on the pre-existing laws and state-imposed norms governing free speech; in contrast, in …

China-United States Trade Negotiations And Disputes: The Wto And Beyond, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines trade negotiations and disputes between China and the United States. It begins by ascertaining the unique political aspects of China-U.S. bilateral economic ties and explains the historical background underlying the relations. The article then argues that trade frictions between China and the United States are unlikely to repeat the Depression-era trade wars. The article observes that both the Chinese and U.S. governments are aware that the adoption of WTO-inconsistent measures may result in retaliatory actions from the other side. Hence, the two governments have attempted to resolve potential disputes through high-level official talks. Even when certain issues …

The Company And Its Directors As Co-Conspirators, Pey Woan Lee

Research Collection Yong Pung How School Of Law

In Nagase Singapore Pte Ltd v Ching Kai Huat and Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd, the High Court of Singapore affirmed the proposition that a company may, like a natural person, conspire with its director to inflict harm on a third person even if the latter is its “directing mind and will”. In both cases, the courts’ focus was directed at a conceptual enquiry, ie, whether a company, whose “mind” is the same as that of its director, could properly be said to have “combined” or “agreed” to conspire. This article argues, however, that …

Mediation And The Myth Of Universality, Nadja Alexander

Research Collection Yong Pung How School Of Law

In his essay entitled ‘Mediation: Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. To a large extent I agree with what the author has to say about the scope and potential for mediation. In particular I support his view that professional mediators need to be made aware of the cultural limitations of the model in which they are trained. As I write …

Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb Bank Bhd V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Adeline Swee Ling Chong

Research Collection Yong Pung How School Of Law

This note examines the Singapore Court of Appeal’s judgment in CIMB Bank Bhd v Dresdner Kleinwort Ltd, focusing specifically on what role, if any, should be played by a choice of law clause contained in a void contract in relation to the restitutionary aftermath of voidness.

Recent Developments In Common Intention: Lee Chez Kee V Pp [2008] 3 Slr 447 [Case Note], Nathaniel Yong Ern Khng, Siyuan Chen

Research Collection Yong Pung How School Of Law

The Court of Appeal recently delivered an important judgment on liability for common intention. This criminal law doctrine has demanded clarification for some time, especially in regards to what is commonly known as “twin crime” situations, ie, situations where there is a primary criminal act as well as a collateral criminal act incidental to the main goal of the participants to the primary crime. In the “twin crime” situation, the participants would have intended to commit the primary criminal act but not all would have shared in the intention of one or more unidentified members of the group to also …

‘Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Swee Ling Adeline Chong

Research Collection Yong Pung How School Of Law

This note examines the Singapore Court of Appeal’s judgment in CIMB Bank Bhd v Dresdner Kleinwort Ltd, focusing specifically on what role, if any, should be played by a choice of law clause contained in a void contract in relation to the restitutionary aftermath of voidness.