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Articles 151 - 180 of 182
Full-Text Articles in Commercial Law
The Company And Its Directors As Co-Conspirators, Pey Woan Lee
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 …
Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh
Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh
Research Collection Yong Pung How School Of Law
In recent times, the venerable principles relating to remoteness of damage in contract have undergone a period of sustained re-evaluation. Key amongst this exercise is the House of Lords’ decision in Transfield Shipping Inc v Mercator Shipping Inc—referred to as ‘The Achilleas’, which represents a fundamental shift in the understanding of remoteness principles. Caught in the winds of The Achilleas is the considered judgment of the Singapore Court of Appeal in Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd.In direct contrast with some of the speeches in The Achilleas, the judgment delivered by Andrew Phang JA in Robertson …
Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen
Information Disclosure, Risk Trading And The Nature Of Derivative Instruments: From Common Law Perspective, Christopher Chao-Hung Chen
Research Collection Yong Pung How School Of Law
This paper explores issues of pre-contractual disclosure for derivative instruments, of which this paper describes as contracts to trade risks, in the UK and US. While there is no general duty of disclosure in common law, this paper focuses on whether there should be a duty of disclosure for derivative instruments by comparing with securities law and insurance law. This paper argues that mandatory disclosure in the securities market cannot be extended to exchange-traded futures contracts (save where securities are involved) because of the nature of securities. In addition, this paper argues that derivative instruments, though similar to insurance in …
Compromising On Consideration In Singapore: Gay Choon Ing V Loh Sze Ti Terence Peter, Yihan Goh
Compromising On Consideration In Singapore: Gay Choon Ing V Loh Sze Ti Terence Peter, Yihan Goh
Research Collection Yong Pung How School Of Law
It is not often that a judgment contains a reference to Aristotle’s work or a coda at its conclusion. The recent Singapore Court of Appeal judgment of Gay Choon Ing v Loh Sze Ti Terence Peter (delivered by Andrew Phang JA) contained both, the latter of which an extensive judicial exposition on the difficulties (and tentative solutions) relating to the contractual doctrine of consideration. This re-evaluation of consideration at the slightest opportunity is unsurprising, given the conceptual problems that have afflicted the doctrine.There have been various judicial solutions, generally capable of classification into two distinct types: first, through an internal …
The Boundary Of Futures Regulation: From U.K. And U.S. Judgments Regarding Commodity Forward Contracts, Christopher Chao-Hung Chen
The Boundary Of Futures Regulation: From U.K. And U.S. Judgments Regarding Commodity Forward Contracts, Christopher Chao-Hung Chen
Research Collection Yong Pung How School Of Law
No abstract provided.
The Nature Of Torrens Indefeasibility: Understanding The Limits Of Personal Equities, Kelvin F. K. Low
The Nature Of Torrens Indefeasibility: Understanding The Limits Of Personal Equities, Kelvin F. K. Low
Research Collection Yong Pung How School Of Law
Torrens registration has revolutionised land law, in particular the law of conveyancing. However, the precise scope of Torrens indefeasibility — which lies at the heart of the system — remains poorly understood, especially in respect of its relationship to the so-called ‘personal equities’ exception. The key to disentangling this web of confusion lies in accepting that personal equities, properly understood, do not actually form an exception to indefeasibility at all. The two concepts operate on completely different planes. In practical terms, this means that three crucial points must be understood. First, the Torrens system is intended to prevent adverse claims …
The Relevance And Value Of Confucianism In Contemporary Business Ethics, Gary Kok Yew Chan
The Relevance And Value Of Confucianism In Contemporary Business Ethics, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
This article examines the relevance and value of Confucian Ethics to contemporary Business Ethics by comparing their respective perspectives and approaches towards business activities within the modern capitalist framework, the principle of reciprocity and the concept of human virtues. Confucian Ethics provides interesting parallels with contemporary Western-oriented Business Ethics. At the same, it diverges from contemporary Business Ethics in some significant ways. Upon an examination of philosophical texts as well as empirical studies, it is argued that Confucian Ethics is able to provide some unique philosophical and intellectual perspectives in order to forge a richer understanding and analysis of the …
Choice Of Law For Unjust Enrichment/Restitution And The Rome Ii Regulation, Adeline Chong
Choice Of Law For Unjust Enrichment/Restitution And The Rome Ii Regulation, Adeline Chong
Research Collection Yong Pung How School Of Law
After being considered as niche territory for a long period, conflicts of law and restitution has provided a fertile ground for exposition in recent times. Whilst some development on the jurisdictional front has occurred, choice of law has lagged behind somewhat as, in England at least, no one seemed to be quite sure what was or should be the choice of law rule for restitutionary claims. However, the Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (commonly known as the Rome II Regulation) has now entered into force and will apply from …
Settlement Agreements As Defences To Unjust Enrichment Claims, Hang Wu Tang
Settlement Agreements As Defences To Unjust Enrichment Claims, Hang Wu Tang
Research Collection Yong Pung How School Of Law
There is unanimity that where there is a contract of settlement, an unjust enrichment claim is barred. However, there is uncertainty in this area because it is sometimes quite difficult to determine whether a contract of settlement has been concluded between the parties. This essay will consider the various tests for determining the boundaries of a settlement contract. In the absence of an express settlement agreement, the argument made in this paper is that the most satisfactory and practical approach to deciding whether there is an implied settlement agreement is to focus on whether the payor was consciously aware of …
Unjust Enrichment Within A Valid Contract: A Close Look At Roxborough V. Rothmans Of Pall Mall Australia Ltd, Hang Wu Tang
Unjust Enrichment Within A Valid Contract: A Close Look At Roxborough V. Rothmans Of Pall Mall Australia Ltd, Hang Wu Tang
Research Collection Yong Pung How School Of Law
This paper examines the decision of the High Court of Australia, Roxborough v Rothmans of Pall Mall Australia Ltd. In particular, this paper interrogates the suggestion by some English commentators that the principle of unjust enrichment ought to apply in this case. This suggestion is controversial because this case is a situation where there was a valid contract between [*2] the parties. In this paper, the central argument advanced is a negative thesis: the unjust enrichment principle is inappropriate as a framework of analysis in the Roxborough context. In a situation like Roxborough, there are two hurdles before the unjust …
Rationalising Re Hastings-Bass: A Duty To Act On Proper Bases, Hang Wu Tang
Rationalising Re Hastings-Bass: A Duty To Act On Proper Bases, Hang Wu Tang
Research Collection Yong Pung How School Of Law
In recent times, the courts have increasingly invoked the power to undo the adverse consequences caused by a trustee's acts in certain circumstances. The basis for such an intervention is premised on the so-called rule in Re Hastings-Bass.1 This development has generated enormous interest in terms of case law and essays from the judiciary, legal academy and practising lawyers. Commentators are divided on whether Re Hastings-Bass has a sound jurisprudential foundation. The thesis of this paper is that Re Hastings-Bass is best understood as a doctrine based on a trustee's duty to act on proper bases and not one premised …
Unlawful Dividends, Unjust Enrichment, And The Defence Of Change Of Position, Cecil Duncan Macrae
Unlawful Dividends, Unjust Enrichment, And The Defence Of Change Of Position, Cecil Duncan Macrae
Research Collection Yong Pung How School Of Law
Economic analysis is applied to determining the effect of the change of position defense on the question of whether an innocent shareholder receiving an unlawful, mistaken dividend should be liable under English restitution law as the result of unjust enrichment. The analysis builds on and extends previous economics analysis of mistaken money transfers under restitution law. The conclusion of the analysis of the change of position defense is that unjust enrichment liability with the defense should not be extended to unlawful, mistaken dividends, even if the factors for unjust enrichment are present.
Restitution, Tiong Min Yeo
Restitution, Tiong Min Yeo
Research Collection Yong Pung How School Of Law
Little of significance was decided on the law of restitution in 2004. There was nevertheless a smattering of cases dealing with points relevant to the principles of the law of restitution, sometimes directly, and sometimes indirectly.
An Issue Of Absolution: Section 391 Of The Companies Act, Pearlie Koh
An Issue Of Absolution: Section 391 Of The Companies Act, Pearlie Koh
Research Collection Yong Pung How School Of Law
There is an obvious tension in the imposition of directors’ duties. Whilst directors being the management, and therefore the eyes, ears and brain of the corporate person, must be given sufficient discretion to take on entrepreneurial (and hence risky) ventures with a view to profit maximisation, there is also the need to curb excesses, as the potential or opportunity for mismanagement, negligence and fraud is omnipresent. [T]his short article considers section 391 of the Companies Act (Cap 50), arguably the statutory nemesis of directors’ duties. Section 391 gives jurisdiction to the court hearing the case to relieve an officer from …
Once A Director, Always A Fiduciary?, Pearlie Koh
Once A Director, Always A Fiduciary?, Pearlie Koh
Research Collection Yong Pung How School Of Law
The corporate director is subject to duties of good faith and loyalty. As he stands in a fiduciary position vis-a-vis the company on whose board he sits, he is subject to strict obligations of self-denial. Indeed, ensuring adherence to an absolute rule in this regard is justified by the need to control, albeit in a necessarily imperfect and arguably ineffective manner, the exercise of discretion by the director who stands in an undoubted position of power with respect to the company. A director therefore is obliged to avoid a conflict of interests and is prohibited from profiting from his office. …
The Director's Fiduciary Obligations: A Fresh Look?, Pearlie Koh
The Director's Fiduciary Obligations: A Fresh Look?, Pearlie Koh
Research Collection Yong Pung How School Of Law
It is a pillar of equity that a person in a fiduciary position must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict (per Lord Upjohn in Phipps v. Boardman [1967] 2 A.C. 46, 123). The House of Lords in Regal (Hastings) v. Gulliver [1942] 1 All E.R. 378 demonstrated the unrelenting nature, and some have argued inequitable severity (see, e.g., Jones, (1968) 84 L.Q.R. 472), of the director-fiduciary’s obligations to his company. Such absolutism (Lowry …
The Law Of Guarantees In Singapore & Malaysia, Kee Yang Low
The Law Of Guarantees In Singapore & Malaysia, Kee Yang Low
Research Collection Yong Pung How School Of Law
No abstract provided.
The Executives Guide To Business & The Law, Kee Yang Low, Benny Tabalujan
The Executives Guide To Business & The Law, Kee Yang Low, Benny Tabalujan
Research Collection Yong Pung How School Of Law
No abstract provided.
The Role Of Boards And Stakeholders In Corporate Governance, Victor C. S. Yeo, Pearlie M. C. Koh
The Role Of Boards And Stakeholders In Corporate Governance, Victor C. S. Yeo, Pearlie M. C. Koh
Research Collection Yong Pung How School Of Law
This paper was written specifically for the OECD Third Asian Roundtable on Corporate Governance, held in Singapore in April 2001, the theme of which was "the Role of Boards and Stakeholders in Corporate Governance". It goes without saying that a significant part of corporate governance is about managerial control and accountability. The duties imposed on directors, how Board members are chosen, Board composition, the interaction between members, the roles and responsibilities that Boards undertake, both as a whole and by their individual members, all have significant impact on the efficacy and propriety of the Board in fulfilling its functions. This …
The Statutory Derivative Action In Singapore: A Critical And Comparative Examination, Pearlie Koh
The Statutory Derivative Action In Singapore: A Critical And Comparative Examination, Pearlie Koh
Research Collection Yong Pung How School Of Law
As a mechanism for shareholder control of corporate wrongs and thus as a tool of corporate governance, the statutory derivative action has had much international attention given to it, particularly in the last 10 years. Singapore introduced its statutory derivative action in 1993 and since then, there have been two reported cases in which the action was invoked. In this paper, I consider the Singapore derivative action as contained in sections 216A and 216B of the Singapore Companies Act. The approach taken is a comparative one as I also look at the statutory derivative actions in Australia and other common …
Commentary On 'The Renegotiation Of Contracts', Howard Hunter
Commentary On 'The Renegotiation Of Contracts', Howard Hunter
Research Collection Yong Pung How School Of Law
Professor John Carter has identified a theme of growing importance in commercial transactions, especially as the number of those that are long in duration and that cross political or cultural lines increases. It is difficult under the best of circumstances ex ante to negotiate for all contingencies in a dynamic economy. Allowing, or requiring, post hoc renegotiations every time there is a change in circumstances could reduce substantially the utility of contract as a risk allocation device that provides some measure of privately ordered certainty unless the use of post hoc renegotiation is carefully circumscribed.
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Comment On 'Profits Derived From Breach Of Contract Or Restitution', Howard Hunter
Research Collection Yong Pung How School Of Law
There is little with which to disagree in Professor Waddams' paper on the categorisation of damage recoveries in the cases posited, viz, those involving a breach which results in benefit to the breaching party but no loss of any consequence to the nonbreaching party. If the goal of contract remedies is to compensate the plaintiff for loss, then, presumably, there should be no recovery at all in such cases. At most there might be nominal damages to compensate for some transaction costs or perhaps as a ’declaration of rights’. In some of the cases considered by Waddams, breach might be …
Remedies Available For Breach Of Contract Under The Un Convention On Contracts For The International Sale Of Goods, Locknie Hsu
Remedies Available For Breach Of Contract Under The Un Convention On Contracts For The International Sale Of Goods, Locknie Hsu
Research Collection Yong Pung How School Of Law
This article, which is complementary to the previous one [(1996) 8 SAcLJ 104], examines in detail the remedies available under the UN Convention on Contracts for the International Sale of Goods, which recently came into force in Singapore. Where appropriate, brief comparisons are made with the remedies available under the Sale of Goods Act.
For Better Of For Worse: The Statutory Derivative Action In Singapore, Pearlie Koh
For Better Of For Worse: The Statutory Derivative Action In Singapore, Pearlie Koh
Research Collection Yong Pung How School Of Law
Managerial accountability (or the lack of it) to shareholders has been described as “one of the major socio-legal problems of the twentieth century”. That such a comment has come to be made seems inevitable given the fact that common law courts have consistently upheld, in the absence of fraud, the managerial authority of the Board against the shareholders in general meeting. The Directors have almost absolute authority to decide what is, in their opinion, in the commercial interests of the company. The concerns of shareholders are obvious in public companies where, for the sake of economic efficiency and as a …
The Duty Of Good Faith And The Security Of Performance, Howard Hunter
The Duty Of Good Faith And The Security Of Performance, Howard Hunter
Research Collection Yong Pung How School Of Law
John Carter's paper provides a good discussion of many fundamental problems associated with the satisfactory enforcement of contractual obligations. In reviewing the various subtopics of the conference, he posits a scale of 'security' for performance that runs from simple reliance on the promisor's word to that of the chattel or real property mortgage with maximum rights of self-help in the promisee. In this commentary on his paper, I will argue that the greatest security for any promisee remains the word of the promisor and that this is so for reasons beyond those of honour. First, the duty of good faith …
Sales Of Goods Issues: Introduction, Howard Hunter
Sales Of Goods Issues: Introduction, Howard Hunter
Research Collection Yong Pung How School Of Law
No abstract provided.
Good Faith In English Law, Howard Hunter
Good Faith In English Law, Howard Hunter
Research Collection Yong Pung How School Of Law
'Good faith' is a term often used but rarely defined or analysed with care. In this short volume O'Connor has undertaken a formidable task: the development of a general principle of good faith that is applicable throughout English law. He begins with a proposed definition and then proceeds through brief analyses of the good faith concept in six areas of the law (administrative law, contracts, company law, criminal law, torts, trusts and property). He makes a quick excursion across the Channel to consider the civil law approach to the principle of good faith and then concludes with a chapter devoted …
Commentary On Pitfalls Of Force Majeure Clauses, Howard Hunter
Commentary On Pitfalls Of Force Majeure Clauses, Howard Hunter
Research Collection Yong Pung How School Of Law
Professor Yates has covered in considerable detail the major problem areas in the use of force majeure clauses. His work is admirable in its technical details as well as in its use for the practitioner. I wish to add but a few brief comments about 2 chronic difficulties with the enforcement of force majeure clauses. To some extent these difficulties are common to all cases that involve excuse by way of frustration, impossibility, or commercial impracticability. The first has to do with foreseeability and the second has to do with post-excuse remedies. It has become a truism that a force …
Quantum Meruit And Building Contracts: Part Ii Does The Contract Price Put A Ceiling On A Recovery Via A Quantum Meruit?, Howard Hunter, J. W. Carter
Quantum Meruit And Building Contracts: Part Ii Does The Contract Price Put A Ceiling On A Recovery Via A Quantum Meruit?, Howard Hunter, J. W. Carter
Research Collection Yong Pung How School Of Law
The question posed by the title of this part of the article has been the subject of a substantial amount of commentary by American legal scholars and has been a central issue in a number of cases, almost all of them involving building contracts. The problem is easy to state: P and D have an agreement for P to construct a building for a total consideration of $X. When P is partially finished, D breaches. If the contract price and the value of the work to date roughly coincide, there is usually little problem in determining P's recovery. The standard …
Quantum Meruit And Building Contracts: Part I The Quantum Meruit Concept, Howard Hunter, J. W. Carter
Quantum Meruit And Building Contracts: Part I The Quantum Meruit Concept, Howard Hunter, J. W. Carter
Research Collection Yong Pung How School Of Law
The aim of this article is to discuss the restitutionary principles applicable to quantum meruit claims in building contracts. In the first part we consider the concept itself and identify the contexts in which such a claim is pursued. In the second part of the article, to be published in the next issue of the JCL, attention is directed, principally, to one issue, namely whether the contract price constitutes a ceiling on the amount recoverable under a quantum meruit claim following breach by the defendant.