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Articles 1 - 30 of 182
Full-Text Articles in Commercial Law
Insolvency Law In The Global South: Lessons For The Global North, Aurelio Gurrea-Martinez
Insolvency Law In The Global South: Lessons For The Global North, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
Despite the influence of the Global North in many insolvency laws and practices in the Global South, this article shows that the Global South has innovated in many aspects of insolvency law. In some cases, these innovations consist of solutions that, with certain adjustments, have been imported from the Global North. In others, they are really ‘autochthonous innovations’ from the Global South. This article identifies both types of innovations, providing examples from jurisdictions such as Brazil, Chile, China, Colombia, Dominican Republic, India, Malaysia, Mexico, Myanmar, Peru, Philippines, Thailand and Uruguay. More importantly, it will be shown how those innovations from …
Relevance Between Strict Liability Theory And Banking Crimes In The Transfer Of Customer Funds: Negligence And Intent, Astrid Athina Indradewi, Evi Kongres, Ananda Chrisna D. Panjaitan, Evelyn Hutami Gunawarman
Relevance Between Strict Liability Theory And Banking Crimes In The Transfer Of Customer Funds: Negligence And Intent, Astrid Athina Indradewi, Evi Kongres, Ananda Chrisna D. Panjaitan, Evelyn Hutami Gunawarman
Research Collection Yong Pung How School Of Law
This article discusses the relevance of the Strict Liability theory to banking crimes in the transfer of customer funds involving elements of negligence as well as intent committed by bank managers. Strict liability places responsibility on the perpetrator without the need to prove fault, but rather by establishing a causal relationship between the act and the harm. In the context of civil law, Articles 1365 and 1367 of the Indonesian Civil Code recognize a form of liability resembling this concept through the mechanism of vicarious liability, whereby the bank as employer may be held liable for the unlawful acts of …
The Law On Deposits In Singapore, Tiong Min Yeo
The Law On Deposits In Singapore, Tiong Min Yeo
Singapore Law Journal (Lexicon)
This article traces the development of the law of deposits in Singapore and reviews the restatement of the law in the 2024 landmark decision of the Court of Appeal in Li Jialin v Wingcrown Investments Pte Ltd, as well as some of the issues left open by the decision. It is argued that while the decision has clarified that deposits are not subject to the penalty rule but instead subject to the common law test of reasonableness—with the practical consequence that, with clear drafting, contracting parties can rely on the validity of reasonable deposit clauses without the complication of …
Revisiting Letters Of Credit And The Enforceability Of Sanctions Clauses: Case Comment: Kuvera Resources Pte Ltd V Jpmorgan Chase Bank, N.A., Bing Feng, Keith Law
Revisiting Letters Of Credit And The Enforceability Of Sanctions Clauses: Case Comment: Kuvera Resources Pte Ltd V Jpmorgan Chase Bank, N.A., Bing Feng, Keith Law
Singapore Law Journal (Lexicon)
This article is a case commentary on the recent Singapore Court of Appeal decision of Kuvera Resources Pte Ltd v JPMorgan Chase Bank, N.A. [2023] 2 SLR 389. It begins with a brief review of the structure of documentary credit transactions before setting out the judgments by the High Court and Court of Appeal. The commentary then examines how both courts rationalised letters of credit within the traditional framework of unilateral contracts, before scrutinising the current position of sanctions clauses within letters of credit. It disagrees with the Court of Appeal’s hesitance towards accepting such clauses, noting that the unilateral …
The New Framework For Directors’ Duty To Creditors And The Challenges Ahead – Foo Kian Beng V Op3 International Pte Ltd (In Liquidation) [2024] 1 Slr 361, Jonathan Ren Hao Cheong
The New Framework For Directors’ Duty To Creditors And The Challenges Ahead – Foo Kian Beng V Op3 International Pte Ltd (In Liquidation) [2024] 1 Slr 361, Jonathan Ren Hao Cheong
Singapore Law Journal (Lexicon)
In Foo Kian Beng v OP3 International Pte Ltd (in liquidation) [2024] 1 SLR 361, the Singapore Court of Appeal introduced a two-step, three-category framework for evaluating whether a director has breached his fiduciary duty to consider the interests of creditors. This decision not only affirms the traditional understanding of the duty in other common law jurisdictions but also provides directors with clearer guidance on managing the affairs of the company in times of financial distress. This article builds upon the discussion in Foo Kian Beng by evaluating the new framework established by the SGCA. It also identifies potential challenges …
A Call For Clarity In Contractual Accessions To Shareholder And Partnership Agreements, Kwan Ho Lau
A Call For Clarity In Contractual Accessions To Shareholder And Partnership Agreements, Kwan Ho Lau
Research Collection Yong Pung How School Of Law
This paper explores understudied issues surrounding accessions to shareholder and partnership agreements: the process by which such accessions take effect; the survival of equities following an accession; and the enforcement of a condition for incoming shareholders to have to execute and deliver a deed of accession. Accessions happen extremely often in modern commercial life, which renders surprising the dearth of academic and judicial discussion, but more disconcerting is the unsettledness of some of the complex issues implicated. The repurposing of unilateral contracts to explain how deeds of accession operate is not fully tested in English law; the conception of partial …
The Overlooked Reality Of Shareholder Activism In China: Defying Western Expectations, Chun Zhou, Wei Zhang, Dan W. Puchniak
The Overlooked Reality Of Shareholder Activism In China: Defying Western Expectations, Chun Zhou, Wei Zhang, Dan W. Puchniak
Research Collection Yong Pung How School Of Law
Despite shareholder activism being in the global spotlight, shareholder activism in China – the world’s second largest economy – remains largely a black box. Using unique hand collected data, we reveal the overlooked reality that shareholder activism in China is thriving – with 156 major shareholder activist campaigns, over two-thirds of which have occurred in the last five years. Contrary to Western conventional wisdom, we find that whether the target company is a private owned enterprise (POE) or state-owned enterprise (SOE), has no statistically significant effect on the success of activist campaigns. Private shareholders have undertaken, and in over half …
Mareva Injunction And Crypto Fraud, Man Yip
Mareva Injunction And Crypto Fraud, Man Yip
Research Collection Yong Pung How School Of Law
Without a Mareva injunction, there is always a risk that any victory on the substantive merits would be rendered hollow in practice by the absence of assets against which the judgment may be enforced. Indeed, it is in cases concerning fraud that the risk of a nugatory judgment is most amplified because the defendant would have the propensity to engage in dishonest practices. Alarmingly, nearly 30 years aft er Mercedez Benz, the ‘black hole’ has enlarged because fraudsters can easily hide behind complex corporate structures and the anonymity of cyberspace. 2 Th is chapter focuses on the use of Mareva …
Negotiating A Brave New World: Fraud And Risk In Modern Commercial Law, Andrew B.L. Phang
Negotiating A Brave New World: Fraud And Risk In Modern Commercial Law, Andrew B.L. Phang
Research Collection Yong Pung How School Of Law
We live in a brave new world. Much of what was once the stuff of fiction has now become reality. In particular, we have witnessed technological advances the like of which we would not even have begun to contemplate even at the turn of the second millennium. No one has been exempt – not even this mid-sexagenarian. Now, almost a quarter of a century on, we have to take stock of the double-edged sword that is technology. Indeed, technology has – unfortunately – facilitated fraud in a manner and on a scale that we have never witnessed before. With technology …
Equity In Commerce: Too Much And Too Little?, Man Yip
Equity In Commerce: Too Much And Too Little?, Man Yip
Research Collection Yong Pung How School Of Law
The interaction and clash between equity and commerce have attracted much attention from judges and academics in recent years. Commercial lawyers may complain about equity introducing uncertainty into commercial endeavours and at times, (mis-)applying the ‘moral standards of the vicarage’ to actors in commercial dealings. However, the objections are not directed at all aspects of equity, but are usually addressed to some ‘disfavoured parts of it’, such as the creation of a new obligation or discretionary remedies. On the other hand, from the perspective of equity lawyers, equity’s interplay with commerce may lead to the contractualisation or commercialisation of equitable …
Novation And Advance Consent, Kwan Ho Lau
Novation And Advance Consent, Kwan Ho Lau
Research Collection Yong Pung How School Of Law
Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for, and the risks in adopting a pristine version of, the proposition, and considers possible safeguards that may be incorporated within the process of scrutiny, if in any case there arises concern over the effectiveness of …
The Future Of Insolvency Law In A Post-Pandemic World, Aurelio Gurrea-Martinez
The Future Of Insolvency Law In A Post-Pandemic World, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
The COVID-19 crisis has encouraged many countries to amend their insolvency laws. In most cases, these amendments took place temporarily, especially during the hibernation phase of the pandemic. In other countries, however, the pandemic has led to permanent changes in their insolvency legislation. More importantly, the COVID-19 crisis has accelerated the insolvency reforms that were already on the political agenda of many countries, and it has encouraged other jurisdictions to reassess the desirability of their insolvency and restructuring frameworks. This article analyses the current trends, reforms and policy discussions that are expected to reshape the future of insolvency law in …
Reflection On Wise Cities And Ai In Community: Sustainable Life Spaces And Kampung Storytelling, Mark Findlay, Li Min Ong
Reflection On Wise Cities And Ai In Community: Sustainable Life Spaces And Kampung Storytelling, Mark Findlay, Li Min Ong
Centre for Commercial Law in Asia
This short paper is a reflection following our presentation made at the ASEAN Law Research Network’s conference on Sustainable Development and Commerce in ASEAN Cities. We had wanted to introduce our thinking, given the strong interest in developing smart cities in the region. We want to emphasise the importance of multidisciplinary approaches in the sustainable development of cities, particularly the voice of social scientists which tends to get left out in discussions over technology. In the race towards “smart” urbanisation, there is a real risk that history and culture – things that give a city “life” – could get decimated …
Toward An Environmentally Sustainable City In The Light Of Industrial Revolution 4.0: A Case Study Of Ho Chi Minh City, Tran Viet Dung
Toward An Environmentally Sustainable City In The Light Of Industrial Revolution 4.0: A Case Study Of Ho Chi Minh City, Tran Viet Dung
Centre for Commercial Law in Asia
Like other large cities in ASEAN, Vietnamese cities have been facing serious urban environment problems such as air pollution, land degradation, weak water drainage and lack of green spaces. These problems are caused by unsustainable patterns of development. City governments have failed to coordinate and integrate city planning consistently. Trends show that governments prefer to take short-term economic profit rather than focus on environmental protection.
Legal Challenges And Opportunities For Peer-To-Peer Electricity Trading In Thailand, Piti Eiamchamroonlarp
Legal Challenges And Opportunities For Peer-To-Peer Electricity Trading In Thailand, Piti Eiamchamroonlarp
Centre for Commercial Law in Asia
Electricity is a critical resource for a country as it powers devices and enables modern living with digital transactions, crypto mining, deployment of electric vehicles (EV) etc. Given these emerging activities, electricity demand is forecasted to keep rising. The peak electricity load in Thailand for 2018, 29,969 MW, will likely increase to 53,997 MW by 2037. However, Thailand, as a party to the United Nations Framework Convention on Climate Change, must consider negative impacts on the environment from electricity generation. To meet these challenges, renewable resources are needed for cleaner electricity generation and ensuring security of electricity supply, while simultaneously …
Indonesia's Termination Of Bilateral Investment Treaties, Lucas Jun Hao Wong
Indonesia's Termination Of Bilateral Investment Treaties, Lucas Jun Hao Wong
Centre for Commercial Law in Asia
Indonesia holds a vast source of untapped potential in terms of its ability to influence global trade. While Indonesia has been a member of the World Trade Organization (WTO) since 1 January 1995, its integration into global value chains remains relatively weak, with the ratio of its trade in goods and services to GDP falling from 48.6% in 2013 to below 40% in 2019. Nonetheless, as Southeast Asia’s largest economy and a member of the G20, Indonesia possesses the capacity to become a key player on the world stage.
Developing Brunei Darussalam As An Asean Hub For International Islamic Finance Dispute Resolution: Opportunity Or Over-Ambition?, Nobumichi Teramura
Developing Brunei Darussalam As An Asean Hub For International Islamic Finance Dispute Resolution: Opportunity Or Over-Ambition?, Nobumichi Teramura
Centre for Commercial Law in Asia
International dispute resolution is only at an early stage of development in Brunei. Although the government established the Brunei Darussalam Arbitration Centre (BDAC) in 2014 to provide domestic and international users with arbitration and mediation services, the institution has yet to attract a significant caseload. This is in contrast with neighbouring countries such as Singapore (a regional hub for international dispute resolution) and Malaysia (an active and rising centre of dispute settlement). Their flagship arbitration institutions, the Singapore International Arbitration Centre (SIAC) and the Asian International Arbitration Centre (AIAC) (formerly known as the Kuala Lumpur Regional Centre for Arbitration), handle …
No Oral Modification Clauses: Autonomy, Certainty Or Presumption?, Kwan Ho Lau
No Oral Modification Clauses: Autonomy, Certainty Or Presumption?, Kwan Ho Lau
Research Collection Yong Pung How School Of Law
By a judgment of Lord Sumption with which a majority of the court agreed, the Supreme Court in MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2018] UKSC 24, [2019] A.C. 119 ruled that a contractual term which prescribed that the contract was not amendable save in writing signed by or on behalf of the parties (a No Oral Modification or “NOM” clause) was effective to invalidate subsequent oral variations to the contract. Lord Burrows later suggested extrajudicially (in P.S. Davies and M. Raczynska (eds.), Contents of Commercial Contracts (London 2020), 49) that Rock Advertising might not find traction …
Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez
Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
This article analyses the legal, market and institutional features needed to become an international hub for debt restructuring. For that purpose, it explores the strategy followed by Singapore, as well as the market and institutional factors generally found in other leading centres for legal and financial services such as the United States, the United Kingdom and Hong Kong. In jurisdictions traditionally having creditor-oriented insolvency systems, such as the United Kingdom, Hong Kong and Singapore, one of the primary challenges for the improvement of the restructuring framework for debtors consists of making sure that the insolvency system remains protective of the …
Insolvency Law In Emerging Markets, Aurelio Gurrea-Martinez
Insolvency Law In Emerging Markets, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
A well-functioning corporate insolvency system can serve as a valuable tool to promote entrepreneurship, innovation, access to finance and economic growth. Therefore, if having an efficient insolvency framework is essential for any country, it becomes even more important for emerging economies due to their potential for growth and their greater financial needs. Unfortunately, the academic literature has generally paid more attention to the regulation of corporate insolvency in developed countries. Thus, with some notable exceptions, it has largely omitted the debate about the optimal design of insolvency law in jurisdictions that, in addition to requiring a more active policy debate, …
Implementing An Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Implementing An Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
Micro-, small-, and medium-sized enterprises (MSMEs) represent the vast majority of businesses in most countries around the world. Despite the economic relevance of these firms, most insolvency jurisdictions do not provide adequate responses to MSMEs. Moreover, with a few exceptions, the academic literature on insolvency law has not traditionally focused on the treatment of MSMEs in insolvency. This article seeks to contribute to the debate by exploring the primary features and problems of MSMEs in insolvency as well as the weaknesses of the ordinary insolvency framework to deal with MSMEs. It also provides a general overview of the primary reforms …
The Rise Of Pre-Packs As A Restructuring Tool: Theory, Evidence And Policy, Aurelio Gurrea-Martinez
The Rise Of Pre-Packs As A Restructuring Tool: Theory, Evidence And Policy, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
The use of pre-packs as a restructuring tool has been traditionally popular in the United Kingdom and the United States. In recent years, however, several jurisdictions around the world, including Singapore, India, Spain, the Netherlands and the Philippines have promoted the use of pre-packs. By shortening the length of insolvency proceedings, pre-packs have the ability to reduce the costs of financial distress—especially those associated with the loss of reputation, employees, suppliers, consumers and goodwill. Thus, pre-packs can help maximise the value of the firm for the benefit of debtors, creditors, and society as a whole. However, the conflict of interests, …
Towards An Optimal Model Of Directors' Duties In The Zone Of Insolvency: An Economic And Comparative Approach, Aurelio Gurrea-Martinez
Towards An Optimal Model Of Directors' Duties In The Zone Of Insolvency: An Economic And Comparative Approach, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
When a company becomes factually insolvent but it is not yet subject to a formal insolvency proceeding, the shareholders - or the directors acting on their behalf - may engage, even in good faith, in various forms of behaviour that can divert or destroy value at the expense of the creditors. For this reason, many jurisdictions impose special directors’ duties in the zone of insolvency. From a sample of more than 25 countries from North America, Europe, Latin America, Africa, Middle East, and the Asia-Pacific, this article seeks to explore the most common regulatory models of directors’ duties in the …
A New Structuring Option For Funds: The Singapore Variable Capital Company, Vincent Ooi
A New Structuring Option For Funds: The Singapore Variable Capital Company, Vincent Ooi
Research Collection Yong Pung How School Of Law
The Singapore Variable Capital Company (“VCC”) offers a new structuring option for funds. This article considers the features of the VCC in terms of structure, operational aspects and commercial considerations, against the backdrop of similar structures in the BVI and Labuan. It submits that, with statutory modifications, opportunities exist to use the VCC for insurance, captive insurance and family offices.
Implementing An Efficient Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Implementing An Efficient Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
Micro, small and medium-sized enterprises (MSMEs) represent about 90% of businesses and more than 50% of employment worldwide. Despite the economic relevance of MSMEs in most countries around the world, and even more in emerging markets, most insolvency jurisdictions do not address adequately the insolvency of MSMEs. In a recent article, entitled ‘Implementing an Insolvency Framework for Micro and Small Firms’ (International Insolvency Review, forthcoming), I seek to contribute to the existing literature on the insolvency treatment of MSMEs. After analysing the particular problems and features of MSMEs, as well as the insolvency reforms for MSMEs recently implemented in various …
Towards An Optimal Model Of Directors’ Duties In The Zone Of Insolvency: An Economic And Comparative Approach, Aurelio Gurrea-Martinez
Towards An Optimal Model Of Directors’ Duties In The Zone Of Insolvency: An Economic And Comparative Approach, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
In a recent article, I analyse the primary regulatory models of directors’ duties in the zone of insolvency observed internationally. From a sample of more than 20 countries from Asia, Australia, Europe, Latin America, Africa, and North America, I distinguish six primary regulatory models: (i) the imposition of a duty to initiate insolvency proceedings, generally found in Europe; (ii) the imposition of a duty to recapitalise or liquidate the company, typically existing in Europe and Latin America; (iii) the imposition of duties towards the company’s creditors, including the duty to minimise losses for the creditors existing in the United Kingdom; …
Modernizing Corporate Law In Latin America: Lessons From Ecuador, Aurelio Gurrea-Martinez, Esteban Ortiz-Mena, Paul Noboa-Velasco
Modernizing Corporate Law In Latin America: Lessons From Ecuador, Aurelio Gurrea-Martinez, Esteban Ortiz-Mena, Paul Noboa-Velasco
Research Collection Yong Pung How School Of Law
In the past decades, several countries in Latin America, including Argentina, Colombia, Mexico and Uruguay, have implemented significant corporate law reforms. In the meantime, the regulatory framework for companies in Ecuador has remained virtually intact since 1964. This situation, however, has dramatically changed in 2020. In one of the most ambitious corporate law reforms observed in Latin America in the past decades, Ecuador has recently modernized its corporate law.
The Future Of Reorganization Procedures In The Era Of Pre-Insolvency Law, Aurelio Gurrea-Martinez
The Future Of Reorganization Procedures In The Era Of Pre-Insolvency Law, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
Several countries and regions around the world, including Singapore, the United Kingdom, and the European Union, are amending their restructuring framework to implement a pre-insolvency mechanism that includes most of the features that exist in the US Chapter 11 reorganization procedure. However, unlike what happens in the United States, where unsuccessful reorganizations lead to Chapter 7 liquidations, companies using this ‘de facto Chapter 11’ (DFCH11) are still allowed to use formal reorganization procedures. This article argues that, while the rise of the DFCH11 is not necessarily undesirable provided that various protections are put in place, jurisdictions implementing this restructuring tool …
Towards An Optimal Model Of Directors' Duties In The Zone Of Insolvency: A Comparative Assessment, Aurelio Gurrea-Martinez
Towards An Optimal Model Of Directors' Duties In The Zone Of Insolvency: A Comparative Assessment, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
In a recent article, I analyse the primary regulatory models of directors’ duties in the zone of insolvency observed internationally. From a sample of more than 20 countries from Asia, Australia, Europe, Latin America, Africa, and North America, I distinguish six regulatory models: (i) the imposition of a duty to initiate insolvency proceedings, generally found in Europe; (ii) the imposition of a duty to recapitalise or liquidate the company, typically existing in Europe and Latin America; (iii) the imposition of a duty to minimise losses for the creditors, existing in the United Kingdom; (iv) the imposition of a duty to …
Artificially Low Salaries And Tax Dodging, Hern Kuan Liu, Vincent Ooi
Artificially Low Salaries And Tax Dodging, Hern Kuan Liu, Vincent Ooi
Research Collection Yong Pung How School Of Law
In the recent case of Wee Teng Yau v Comptroller of Income Tax, the Singapore Supreme Court considered the issue of tax avoidance by professionals for the first time. The case involved a dentist, Dr Wee, who was initially employed by Alfred Cheng Orthodontic Clinic Pte Ltd (ACOC). Subsequently, he incorporated Straighten Pte Ltd (SPL), of which he was the sole director and shareholder. Dr Wee continued to provide the same dental services to ACOC's patients as he had done before. However, instead of paying Dr Wee directly for his services, ACOC paid for his services to SPL, which in …