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Articles 1 - 30 of 68
Full-Text Articles in Law
The Fiduciary Doctrine As A New Pathway: An Alternative Approach To Analysing Native Customary Rights In Sarawak, Hang Wu Tang
The Fiduciary Doctrine As A New Pathway: An Alternative Approach To Analysing Native Customary Rights In Sarawak, Hang Wu Tang
Research Collection Yong Pung How School Of Law
This paper explores the use of the fiduciary doctrine whereby the state is conceived as a fiduciary vis-à-vis her native peoples and attendant equitable remedies are made available for the native customary rights over land in Sarawak. Thus far, most challenges to extinguishment of native customary rights in Sarawak have proceeded on constitutional grounds, with little success. This article draws on the jurisprudence of fiduciary law in other parts of the Commonwealth and argues that this is a viable alternative cause of action against the state.
Case Notes: Dealing With Divergences In Fundamental Rights Standards: Case C-399/11 Stefano Melloni V. Ministerio Fiscal, Maartje De Visser
Case Notes: Dealing With Divergences In Fundamental Rights Standards: Case C-399/11 Stefano Melloni V. Ministerio Fiscal, Maartje De Visser
Research Collection Yong Pung How School Of Law
No abstract provided.
The Pallant V Morgan Equity Reconsidered, Man Yip
The Pallant V Morgan Equity Reconsidered, Man Yip
Research Collection Yong Pung How School Of Law
This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of …
Punishment And Protection - The Disqualification Of Directors In Singapore, Pearlie M. C. Koh
Punishment And Protection - The Disqualification Of Directors In Singapore, Pearlie M. C. Koh
Research Collection Yong Pung How School Of Law
The ability to operate behind the shield of the corporate form, thereby benefiting from limited liability, is thought to be a privilege conferred by statute. This privilege is however, curtailed for certain individuals who are “proven misfits”. The removal, by disqualification, of these individuals from corporate management is intended to protect the shareholders and creditors of the companies concerned from the possibility of future instances of undesirable conduct by these same individuals. Thus, the Companies Act of Singapore provides for disqualification from holding directorships or from management of a company on a number of grounds. Disqualification may be automatic or …
Case Comment: A New Framework For The Implication Of Terms In Fact, Yihan Goh
Case Comment: A New Framework For The Implication Of Terms In Fact, Yihan Goh
Research Collection Yong Pung How School Of Law
In Sembcorp Marine Ltd v PPL Holdings Pte Ltd the Singapore Court of Appeal once again reaffirmed the Singapore courts’ rejection of the approach adopted by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd which characterised the implication of a term in fact as a process of contractual interpretation. What may be of interest to practitioners and academics of common law jurisdictions wrestling with the implications of the Belize approach is the Court of Appeal’s prescription of ‘a three-step process’ for the implication of terms in fact, which is accompanied by an in-depth discussion of various conceptual …
Public Law Theory And Judicial Review In Singapore: Jeyaretnam Kenneth Andrew V Ag [2013] Sgca 56, Benjamin Joshua Ong
Public Law Theory And Judicial Review In Singapore: Jeyaretnam Kenneth Andrew V Ag [2013] Sgca 56, Benjamin Joshua Ong
Research Collection Yong Pung How School Of Law
The Court of Appeal affirmed the High Court’s ruling that the applicant had no locus standito challenge the compatibility of a loan made by the Government to the InternationalMonetary Fund with Art 144(1) of the Constitution. On the interpretation of Art 144(1), therewas no prima facie case of reasonable suspicion that such incompatibility existed. Moreover,the applicant did not have sufficient interest in the matter.
E-Commerce Regulation: Necessity, Futility, Disconnect, Eliza Mik
E-Commerce Regulation: Necessity, Futility, Disconnect, Eliza Mik
Research Collection Yong Pung How School Of Law
Existing e-commerce regulations constitute a premature and unnecessary interference in the natural evolution of commercial practices and technologies. I question not just their quality, mainly attributable to the technological ignorance of the regulator, but their very necessity. I observe the practical futility of drafting effective regulatory instruments in areas subject to continuous and unpredictable technological change. I criticize the overly homogenous approach to "everything Internet" (i.e. everything involving the Internet requires new law) as well as the creation of new regulatory spheres and legal categories. Some might claim that it is too early for a critical retrospective of this subject. …
Autochthonous Constitutional Design In Post-Colonial Singapore: Intimations Of Confucianism And The Leviathan In Entrenching Dominant Government, Eugene K. B. Tan
Autochthonous Constitutional Design In Post-Colonial Singapore: Intimations Of Confucianism And The Leviathan In Entrenching Dominant Government, Eugene K. B. Tan
Research Collection Yong Pung How School Of Law
Does Singapore's approach to institutional design vis-avis political representation prioritize strong and effective government, or is the goal one that is geared towards a representative government as a means of enhancing political governance? his paper examines the series of amendments to Singapore's Constitution and related legislation, between 1984 and 1990, and in 2010, which relate to political representation in Singapore's electoral system and unicameral legislature. At one level, the changes are part of the endeavor to retain Parliament's standing as the focal point of Singapore's Westminstermodeled system of government. The constitutional changes reflect the political elites' abiding belief that institutional …
Guidance On Representative Actions: Koh Chong Chiah And Others V Treasure Resort Pte Ltd [2013] Sgca 52, Eunice Chua
Guidance On Representative Actions: Koh Chong Chiah And Others V Treasure Resort Pte Ltd [2013] Sgca 52, Eunice Chua
Research Collection Yong Pung How School Of Law
In Koh Chong Chiah and others v Treasure Resort Pte Ltd,1 the Court of Appeal issued acomprehensive judgment outlining when representative actions may be brought pursuant toO 15 r 12 of the Rules of Court,2 which provides that:Where numerous persons have the same interest in any proceedings, … theproceedings may be begun, and, unless the Court otherwise orders, continued, by oragainst any one or more of them as representing all or as representing all except oneor more of them [emphasis added].
Is The Invocation Of Inherent Jurisdiction The Same As The Exercise Of Inherent Powers? Re Nalpon Zero Geraldo Mario [Case Note], Siyuan Chen
Research Collection Yong Pung How School Of Law
In Re McC (A Minor), Lord Bridge of Harwich remarked that few words have been ‘used with so many different shades of meaning in different contexts’ and ‘have so freely acquired new meanings’ as the word ‘jurisdiction’. The definitional conundrum deepens when ‘jurisdiction’ is combined with the adjective ‘inherent,’ yet common law courts around the world routinely claim to invoke inherent jurisdiction for a wide array of purposes in civil and criminal matters, ranging from the reception of evidence to the ensuring of a fair trial, and this necessarily raises questions about the limits of such an exercise.
Which Road To The Past? - Some Reflections On Legal History, Andrew B.L. Phang
Which Road To The Past? - Some Reflections On Legal History, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
It is not customary to commence a keynote address with caveats and disclaimers. However, this is the rare occasion when such qualifications are necessary because—if I may be permitted a crude pun—of the lack of qualifications of the speaker himself. This is not false modesty. It is very real. I know that I have often been referred to in the Singapore context as a legal historian.
The Singapore Personal Data Protection Act And An Assessment Of Future Trends In Data Privacy, Warren B. Chik
The Singapore Personal Data Protection Act And An Assessment Of Future Trends In Data Privacy, Warren B. Chik
Research Collection Yong Pung How School Of Law
In the first part of this paper, I will present and explain the Singapore Personal Data Protection Act (“PDPA”) in the context of legislative developments in the Asian region and against the well-established international baseline privacy standards. In the course of the above evaluation, reference will be made to the national laws and policy on data privacy prior to the enactment of the PDPA as well as current social and market practices in relation to personal data. In the second part of this paper, I will decipher and assess the future trends in data privacy reform and the future development …
The Right To Appeal Against A Decision Made On An Interlocutory Application: The Immediate Aftermath Of The 2010 Amendments, Eunice Chua, Siyuan Chen
The Right To Appeal Against A Decision Made On An Interlocutory Application: The Immediate Aftermath Of The 2010 Amendments, Eunice Chua, Siyuan Chen
Research Collection Yong Pung How School Of Law
One of the main reasons for amending the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) in 2010 was to introduce a calibrated approach towards interlocutory appeals to the Court of Appeal. The amended s 34 and the newly introduced Fourth and Fifth Scheds were interpreted for the first time in two recent Court of Appeal decisions, providing much needed guidance on the general approach towards statutory interpretation, as well as specific direction in terms of interpreting the term “order” in para (i) of the Fourth Sched and para (e) of the Fifth Sched, and the term “interlocutory …
Discovering The Right To Criminal Disclosure: Lessons From Civil Procedure, Denise Huiwen Wong
Discovering The Right To Criminal Disclosure: Lessons From Civil Procedure, Denise Huiwen Wong
Research Collection Yong Pung How School Of Law
The amendments to the Criminal Procedure Code (Cap 68, 1985 Rev Ed) and subsequent case law developments have created a patchwork of rules governing the disclosure obligations of parties in criminal cases. This article argues that parties have thereby been endowed with a right that is exercisable in the courts to access the material to which the law says they are entitled. However, there are currently no proper procedural mechanisms in place for parties to make interlocutory applications to obtain such material. This article examines the competing values and ideals of a criminal discovery regime, and suggests that concepts such …
Australia's Proposed Exercise In Contract Law Reform: International Convergence And Regional Implications, Basil C. Bitas
Australia's Proposed Exercise In Contract Law Reform: International Convergence And Regional Implications, Basil C. Bitas
Research Collection Yong Pung How School Of Law
In July 2012, the Australian Attorney-General’s Department began soliciting comment regarding the best way to reform Australian contract law to render it more suitable for the demands of 21st century commerce. The effort marks an appreciation of the changing commercial environment and challenges the traditional common law preference for piecemeal, organic reform through case law. The proposed effort has implications for the global convergence of legal systems and further poses practical questions as to what form any such contractual reform should take. Codification in the European, civil law sense is a possible but unlikely outcome. A persuasive but non-binding restatement …
Go Beyond ‘Nudges’ In Tackling Discrimination, Tan K. B. Eugene
Go Beyond ‘Nudges’ In Tackling Discrimination, Tan K. B. Eugene
Research Collection Yong Pung How School Of Law
In this commentary, SMU Associate Professor of Law and NMP Eugene Tan shared his thoughts on the Fair Consideration Framework (FCF), which was describe by Acting Manpower Minister Tan Chuan-Jin as a “nudge” to employers to give Singaporean professionals, managers and executives (PMEs) – who constitute about a third of the workforce – a “fair chance” at job and development opportunities.
The Use Of Experts In Legal Proceedings In Singapore Involving Intellectual Property Rights, David Llewelyn
The Use Of Experts In Legal Proceedings In Singapore Involving Intellectual Property Rights, David Llewelyn
Research Collection Yong Pung How School Of Law
In intellectual property (IP) cases decided in recent years in Singapore, the use of expert evidence is commonplace. Weaknesses in that expert evidence are commonplace too; sometimes the weaknesses are such that the evidence should be excluded, on other occasions they render the evidence of little value. However, in all cases the reliance on expert evidence will have increased the cost of the litigation for both sides (and rarely does the costs award make that increase good for the successful party). Aside from the more general policy concerns regarding expert evidence, this is an important reason why the courts must …
Contractual Interpretation In Indian Evidence Act Jurisdictions: Compatibility With Modern Contextual Approach, Yihan Goh
Research Collection Yong Pung How School Of Law
This paper examines the approaches towards contractual interpretation taken by Commonwealth jurisdictions governed by the Indian Evidence Act. While some of these jurisdictions import the modern contextual approach into their domestic approaches, it will be argued that it is largely compatible with the Indian Evidence Act. In particular, it will be shown that a limited adoption of the modern contextual approach is permissible, namely one involving the limited admissibility of extrinsic evidence to interpret contracts, subject to the requirement of ambiguity. An integrated approach may represent the best way of following the modern contextual approach, while remaining faithful to the …
Asean's Liberalization Of Legal Services: The Singapore Case, Pasha Li-Tian Hsieh
Asean's Liberalization Of Legal Services: The Singapore Case, Pasha Li-Tian Hsieh
Research Collection Yong Pung How School Of Law
This article examines the liberalization of legal services in the Association of Southeast Asian Nations (“ASEAN”) within the framework of the ASEAN Economic Community and ASEAN’s free trade agreements. Although trade in legal services is important to ASEAN’s goal as a “single market and production base,” the article challenges the weaknesses of ASEAN’s legal services liberalization. It then explores Singapore’s experiment on the regulations of foreign law firms and foreign lawyers, which have become substantially liberalized in the past decade. The article argues that while Singapore may serve as a positive example, ASEAN countries should be cautious of the gap …
The Future Of The Similar Fact Rule In An Indian Evidence Act Jurisdiction: Singapore, Siyuan Chen
The Future Of The Similar Fact Rule In An Indian Evidence Act Jurisdiction: Singapore, Siyuan Chen
Research Collection Yong Pung How School Of Law
In yet another attempt to bridge the gap between the rules of an antiquated statute and the modern realities of practice, Singapore’s Evidence Act was amended in 2012. Certain relevancy provisions were amended to allow greater admissibility of evidence. While new provisions were introduced to act as a check against abuse, oddly some similar fact provisions were left intact. This paper explains why the 2012 amendments have rendered the future of these enactments very uncertain. This paper also suggests a number of tentative recommendations as regards future legislative change or judicial interpretation. To the extent that Singapore’s Evidence Act was …
Chief Justice Of Samoa Launches Mediation Rules, Nadja Alexander
Chief Justice Of Samoa Launches Mediation Rules, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this post on the Kluwer Mediation Blog, the launch of Samoa’s Mediation Rules 2013 by His Honour Patu Tiava’asue Falefatu Sapolu is presented.
Developments In The Law On Constitutional And Statutory Interpretation: Vellama D/O Marie Muthu V Ag [2012] Sghc 155; [2013] Sgca 39, Benjamin Joshua Ong
Developments In The Law On Constitutional And Statutory Interpretation: Vellama D/O Marie Muthu V Ag [2012] Sghc 155; [2013] Sgca 39, Benjamin Joshua Ong
Research Collection Yong Pung How School Of Law
Following the expulsion of Mr Yaw Shin Leong, MP for Hougang Single MemberConstituency (SMC), from his party, the applicant in Vellama d/o Marie Muthu v AttorneyGeneral[2012] SGHC 155, [2012] 2 SLR 1033 (“Vellama (HC)”); [2013] SGCA 39 (“Vellama(CA)”), a resident of Hougang SMC, sought a declaration that the Prime Minister did nothave unfettered discretion in deciding whether and when to call a by-election to fill thevacant seat in Parliament, given that art 49(1) of the Constitution provides that “Wheneverthe seat of a Member, not being a non-constituency Member, has become vacant for anyreason other than a dissolution of Parliament, the …
Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee
Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee
Research Collection Yong Pung How School Of Law
The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …
A Psychology Of Choice Of Laws, Gary Low
A Psychology Of Choice Of Laws, Gary Low
Research Collection Yong Pung How School Of Law
There is certainly a lot of choice going around in the market for contract law. This is a good thing, since choice is key to self-determination and may help improve our laws. Yet there may be such a thing as choice overload, and the introduction of the Common European Sales law is a timely reminder to consider its effect for the market for contract law. This article does just that. It explains what choice overload is, why it comes about, and what can be done to ameliorate its effects. The conclusion is that CESL will not cause choice overload but …
Engineering Peace: Achieving The Promise Of Mediation In The World’S Most Difficult Conflicts, Nadja Alexander
Engineering Peace: Achieving The Promise Of Mediation In The World’S Most Difficult Conflicts, Nadja Alexander
Research Collection Yong Pung How School Of Law
The first of a series of four blog postings on the Kluwer Mediation Blog calls for more use of mediation for conflict avoidance and prevention purposes on the global level.
A Psychology Of Choice Of Laws, Gary Low
A Psychology Of Choice Of Laws, Gary Low
Research Collection Yong Pung How School Of Law
There is certainly a lot of choice going around in the market for contract law. This is a good thing, since choice is key to self-determination and may help improve our laws. Yet there may be such a thing as choice overload, and the introduction of the Common European Sales law is a timely reminder to consider its effect for the market for contract law. This article does just that. It explains what choice overload is, why it comes about, and what can be done to ameliorate its effects. The conclusion is that CESL will not cause choice overload but …
Moulding The Nascent Corporate Social Responsibility Agenda In Singapore: Of Pragmatism, Soft Regulation, And The Economic Imperative, Eugene K. B. Tan
Moulding The Nascent Corporate Social Responsibility Agenda In Singapore: Of Pragmatism, Soft Regulation, And The Economic Imperative, Eugene K. B. Tan
Research Collection Yong Pung How School Of Law
This paper seeks to examine the putative growth of corporate social responsibility (CSR) in Singapore. A key impetus for the nascent CSR movement in twenty-first century Singapore is the economic imperative. As a trade-dependent industrializing economy, the economic development drive coupled with the need for international expansion has made it necessary for Singapore businesses to be cognizant of the growing CSR movement in the western, industrialized world. The government supports the CSR endeavour with an instrumental bent, where CSR ideas and concepts are adapted, incorporated, and promoted in various sectors of the economy. This paper assesses the state’s active encouragement …
Following English Footsteps? An Empirical Study Of Singapore's Reported Insurance Judgments And Disputes Between 1965 And 2012, Christopher C. H. Chen
Following English Footsteps? An Empirical Study Of Singapore's Reported Insurance Judgments And Disputes Between 1965 And 2012, Christopher C. H. Chen
Research Collection Yong Pung How School Of Law
This article presents an empirical study of the development of Singapore’s insurance contract law in relation to English law. The gene of Singapore’s insurance law is very English. The empirical data show a lack of momentum in driving insurance law forward by case law. This may justify further legislative reform to address not only the known doctrinal issues inherited from English law but also the specific problems facing consumer insurance. Singapore’s competitiveness in the global insurance market will be an instrumental factor to determine how far Singapore continues to follow English law in the future.
India International Adr Association Off To An Exciting Start, Nadja Alexander
India International Adr Association Off To An Exciting Start, Nadja Alexander
Research Collection Yong Pung How School Of Law
In this post on the Kluwer Mediation Blog, the launch of the India International ADR Association (IIADRA) is analysed.
Let Us Not Centralise Town Council Services, Tan K. B. Eugene
Let Us Not Centralise Town Council Services, Tan K. B. Eugene
Research Collection Yong Pung How School Of Law
With the Government accepting the findings and recommendations of the Ministry of National Development (MND) Town Council Review Report, the focus has now shifted to a “strategic and comprehensive review of town councils (TCs)”. SMU Assistant Professor of Law Eugene Tan was of the opinion that such a move is timely and needed. He said that Singapore should not revert to the pre-1989 situation in which the management and maintenance of public housing estates was HDB’s sole responsibility. Apart from commenting on suggestions raised in the reviews, he also added what he thought should be included in this comprehensive review …