Law Commons^™

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.

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 …

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.

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 …

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.

Fault Lines In Our “Garden Of Eden State”, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

No abstract provided.

From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The focus of Singapore's response to terrorism post 9/11 has been to reach out to the “moderate, mainstream” Muslims as a bulwark against societal implosion. This article examines the broad-based endeavor toward “religious moderation.” While coercive draconian legislation remain the mainstay against extremists and radicals, the mobilization of soft law, aspirational norms, and values are consciously woven into the state's endeavors to enhance society's resilience and cohesion. They also seek to regulate religious conduct at a time when the state wishes to entrench secularism as a cornerstone of the governance of a multi-racial, multireligious society. Rights and regulation are not …

A Missing Part In International Investment Law: The Effectiveness Of Investment Protection Of Taiwan's Bits Vis-À-Vis Asean States, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Taiwan, classified as an “unrecognized state” or an “entity sui generis” by most international law scholars, has been excluded from most major international organizations and agreements for decades. This diplomatic isolation has had a negative influence on the protection of Taiwan’s overseas investments. This Article explores the six bilateral investment treaties (“BITs”) that the Taiwanese government has reached with the Association of Southeast Asian Nations (“ASEAN”) States and compares the weaknesses of the Taiwanese agreements with the investment frameworks established within ASEAN States. This Article concludes that Taiwan’s BITs with six ASEAN Member States fail to serve the very aim …

Harmonizing The Internal Market Or Public Health? Revisiting Case C-491/01 (British American Tobacco) And Case C-380/03 (Tobacco Advertising Ii), Han-Wei Liu

Research Collection Yong Pung How School Of Law

According to settled ECJ case law, including Case C-376/98 (Tobacco Advertising I), Article 95 EC cannot be construed as conferring upon the Community a general power to regulate the internal market. Measures that the Community legislature adopts under this Article must rather have the specific objective of improving conditions for the establishment and functioning of the internal market; that is, they must be designed to remove genuine obstacles to free movement or distortions of competition, rather than purely abstract risk. [2] In some respects, however, Article 95 appears to provide a pretext for the Community legislature to implement other policy …

Report Of The Law Reform Committee On Ancillary Orders After Foreign Divorce Or Annulment, Aqbal Singh, Debbie Ong, Yock Lin Tan, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

A matrimonial order of divorce, nullity or legal separation is often followed by ancillary orders relating to division of matrimonial property, custody of children and maintenance. Under Singapore law, many of the court’s powers in respect of these types of orders depend on the court having jurisdiction to pronounce on the status of the marriage. If an order made by a foreign court is recognised to have annulled or dissolved the marriage, then it is not possible for the Singapore court to assume jurisdiction in respect of the marriage; there is no marriage to speak of anymore. The legal consequence …

Our Shared Stake, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

It's the time of the active citizen. Recent spurts of collective campaigning have mobilised surprising ground support. Eugene Tan analyses the coming age of civil society here through the passionate and visible advocacy of certain groups in recent events.