Commercial Law Commons^™

The Commercialisation Of Equity, Man Yip, James Lee

Research Collection Yong Pung How School Of Law

This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the 'commercialisation' of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that …

Partnerships, Vincent Ooi

Research Collection Yong Pung How School Of Law

Partnerships and tax—overview: The statutory definition of a partnership is the “relation which subsists between persons carrying on a business in common with a view of profit”. Those persons could be natural persons, or other legal entities such as companies or trustees. However, a registered company under the Companies Act (Cap. 50) (2006 Rev. Ed.) is not a partnership.

Vicarious Liability, Non-Delegable Duty And The Ng Huat Seng Decision, Kee Yang Low

Research Collection Yong Pung How School Of Law

This article considers the evolving law relating to the delegability of the duty of care and the principle of vicarious liability, focusing particularly on the recent Singapore Court of Appeal decision in Ng Huat Seng v Munib Mohammad Madni.

Smart Contracts: Terminology, Technical Limitations And Real World Complexity, Eliza Mik

Research Collection Yong Pung How School Of Law

If one is to believe the popular press and many “technical writings,” blockchains create not only a perfect transactional environment but also obviate the need for banks, lawyers and courts. The latter will soon be replaced by smart contracts: unbiased and infallible computer programs that form, perform and enforce agreements. Predictions of future revolutions must, however, be distinguished from the harsh reality of the commercial marketplace and the technical limitations of blockchains. The fact that a technological solution is innovative and elegant need not imply that it is commercially useful or legally viable. Apart from attempting a terminological “clean-up” surrounding …

Lord Denning’S Influence On Contract Formation In Singapore: An Overdue Demise?, Chia Ming Lee, Kenny Chng

Research Collection Yong Pung How School Of Law

In a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard …

Extraterritoriality Of The Regulations And Interconnections Of The Derivatives Market: Legal Implications For East And Southeast Asia, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This article examines the legal implications of the interconnections of the global derivatives market, such as the exchange and over-the-counter (OTC) markets, in East and Southeast Asia. First, we introduce the interconnectedness of the global derivatives market. We then examine some legal implications of such interconnectedness from several angles, such as the extraterritoriality of relevant regulations (notably the reporting, clearing and trading mandates prescribed by the G20 and the new initial margin rule), standard product documentation, the effect of substituted compliance, the potential competition effect due to shifting OTC trades to exchange trading and the effect of consolidating exchanges and/or …

A Director’S Duty Of Loyalty And The Relevance Of The Company’S Scope Of Business: Cheng Wai Tao V Poon Ka Man Jason, Pearlie M. C. Koh

Research Collection Yong Pung How School Of Law

The Hong Kong Court of Final Appeal has utilised a ‘scope of business’ inquiry to delineate the boundaries of the no-conflict rule for the company director. Such an inquiry is directed at discerning the realistic ability of the company to exploit any particular business opportunity and a strict capacity approach is eschewed, at least where the no-conflict rule is concerned. The decision is premised on a bifurcation between the no-conflict and no-profit rules, suggesting that the tests to determine breach of these fiduciary rules are not necessarily the same, thus permitting a more nuanced consideration of directorial breaches.

Improving Connectivity Between Asean's Legal Systems To Address Commercial Issues, Locknie Hsu, Pearlie M. C. Koh, Man Yip

Research Collection Yong Pung How School Of Law

This interim report on legal barriers to doing business in ASEAN coincides with the 50th Anniversary of ASEAN’s founding and the first year of the ASEAN Economic Community (AEC). The team is privileged to be supported by, among others, the Canada-ASEAN Business Council (CABC), given that it is also the 40th anniversary of dialogue relations between Canada and ASEAN.

Despite occasional misgivings about the “ASEAN Way”, ASEAN economic integration has come a very long way. The number of member States has grown over the 50 years since ASEAN’s founding, and the joint efforts among these States driving economic growth and …

Restitution [2016], Man Yip

Research Collection Yong Pung How School Of Law

No abstract provided.

Legal Barriers To Supply Chain Connectivity In Asean, Locknie Hsu

Research Collection Yong Pung How School Of Law

This is an Interim Report published pursuant to a Tier 1 research grant from SMU, examining legal barriers to doing business in ASEAN countries. The Interim Report presents research material and findings on such barriers and a number of actionable preliminary recommendations for policy-makers to consider and utilise. The main areas of barriers examined are corporate, trade, investment, land use, dispute settlement and legal information barriers encountered in the region. The Final Report is expected to be published in March 2018.

Cross Border Public Offering Of Securities In Fostering An Integrated Asean Securities Market: The Experiences Of Singapore, Malaysia And Thailand, Wai Yee Wan

Research Collection Yong Pung How School Of Law

In 2015, the Association of South-East Asian Nations (ASEAN) Economic Community was formally established and its aim was to achieve, among other things, an integrated securities market within ASEAN.

Before the formal establishment of the ASEAN Economic Community, in 2009, with a view towards achieving the objective of securities integration, Singapore, Malaysia and Thailand adopted the ASEAN Disclosure Standards, a set of harmonized disclosure standards for issuers making cross-border initial public offerings (IPOs). These participating Member States also entered into a framework for the expedited review for cross-listings. However, more than 5 years later, there is no documented use of …

Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher C. H. Chen

Research Collection Yong Pung How School Of Law

This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for directors. With more …

Some Reflections On The Willem C Vis And Vis East International Commercial Arbitration Moots: Negotiating And Bridging The Civil-Common Divide, Siyuan Chen, Bethel Ruiyi Chan, Eden Yiling Li

Research Collection Yong Pung How School Of Law

This article draws from the co-authors’ personal experiences of competing in the Willem C. Vis and Vis East International Commercial Arbitration Moots and highlights the importance of awareness of diversity in legal traditions. The article focuses on points of divergence between the civil and common law jurisdictions in three main aspects: substantive law, procedural rules and advocacy techniques. Specifically, the article discusses the doctrine of good faith in the United Nations Convention on Contracts for the International Sale of Goods, the group of companies doctrine, and the concept of discovery and disclosure in the International Bar Association Rules on the …

From Apathy To Multi-Stakeholder Action For Our Biodiversity, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

SMU Associate Professor of Law Eugene Tan highlighted that the public consumption of sharks’ fin in Singapore has declined in recent years as a result of successful "say no to shark fin" campaigns. However, Singapore was the third largest importer of shark fin between 2005 and 2013. Shark conservation is not about sharks alone but about sustainability, oceanic health, and robust commercial fisheries. It's also about enlightened self-interest at its core. As a major food source, the oceans are critical to our food supply and security. As a maritime nation, commercial fisheries are important to us as well. Much more …

Convergence Between Australian Common Law And English Common Law: The Rule Against Penalties In The Age Of Freedom Of Contract, Man Yip, Yihan Goh

Research Collection Yong Pung How School Of Law

This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand Bank Group Limited on the rule against penalty clauses and situates its importance in light of the UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi and Beavis v ParkingEye Ltd.
It compares the analytical frameworks laid down in the two cases and
points out some unresolved issues in this area of law even following
these cases.

Mergers & Acquisitions: The Asian Way, Singapore Management University

Research@SMU: Connecting the Dots

Professor Wan Wai Yee studies the laws that govern mergers and acquisitions in Asia’s fast-changing landscape.

See the related publications:

• Mergers and Acquisitions in Singapore: Law and Practice
• Independent financial advisers' opinions for public takeovers and related party transactions in Singapore
• Regulating squeeze-out techniques by controlling shareholders: The divergence between Hong Kong and Singapore

Asia’S Legal Tiger, Singapore Management University

Research@SMU: Connecting the Dots

The growing globalisation of Singapore’s legal profession presents both opportunities and challenges, says Professor Goh Yihan.

See his books:

• Singapore Chronicles: Law;
• Singapore Law: 50 years in the making

Who’S Wrong, Whose Liability, Singapore Management University

Research@SMU: Connecting the Dots

Determining who is legally answerable for a wrong in the civil context can be complicated, but research being done by Professor Lee Pey Woan is helping to clear the air.

See the papers:

• Accessory liability in tort and equity
• The enigma of veil-piercing
• The company and its directors as co-conspirators

Making Sense Of Virtual Assets, Singapore Management University

Research@SMU: Connecting the Dots

Professor Kelvin Low’s research shows that the legal rights of people who own some intangible assets are sometimes remarkably ill-defined and poorly studied.

See the papers:

• Carbon credits as EU like it: Property, immunity, tragiCO2medy?
• Legal risks of owning cryptocurrencies

Understanding The Law Of Torts In China: A Political Economy Perspective, Wei Zhang

Research Collection Yong Pung How School Of Law

In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with …

Unauthorised Fiduciary Gains And The Constructive Trust, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article challenges the traditional assumption that all cases of unauthorised fiduciary gain warrant the same legal treatment, in particular the imposition of a constructive trust as a disgorgement remedy. It proposes a method of categorising the cases and ranking them based on the strength of the principal’s interest. It is suggested that in cases where the principal’s interest is not particularly strong, there is room for taking into account the interests of innocent third parties and affording them the necessary protection. For this purpose, the remedial constructive trust supplies the needed flexibility.

A Renewed Consideration Of Consideration: Mwb Business Exchange Centres Ltd V Rock Advertising Ltd [2016] Ewca Civ 553, Kenny Chng, Yihan Goh

Research Collection Yong Pung How School Of Law

This note argues thatthe English Court of Appeal decision of MWBBusiness Exchange Centres Ltd v Rock Advertising Ltd is a significantmodification of the present understanding of consideration with respect toagreements to accept part-payments of a debt and to perform pre-existing duties,and that the preferred way forward for the development of the law should be judicialintervention by the Supreme Court to reconcile the logical inconsistenciesbetween Foakes v Beer and Williams v Roffey Bros & Nicholls(Contractors) Ltd.

A Harmonized System Of International Commercial Arbitration Within The Aec And Beyond?, Locknie Hsu

Research Collection Yong Pung How School Of Law

No abstract provided.

Civil Conspiracy In The Corporate Context, Pey Woan Lee

Research Collection Yong Pung How School Of Law

This article examines the issues that arise when the tort ofconspiracy by unlawful means is used, as an alternative to veil-piercing,either to extend a company’s liability to its controllers, or to enable acontroller’s creditors to reach the assets of company under his or her control.It observes that the tort of conspiracy is a particularly potent mechanism forthese purposes because of its potentially broad reach. A liberal application ofconspiracy liability to companies and their insiders would therefore underminethe company’s separate legal status as well as the benefits of incorporation.For that reason, the application of the tort, and of private law principles …

Exploring A New Frontier In Singapore's Private International Law: Im Skaugen Se V Man Diesel & Turbo Se [2016] Sghcr 6, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The establishment of the Singapore International Commercial Court (“SICC”) marks a significant development in Singapore’s private international law. This note leverages on the Singapore High Court decision of IM Skaugen SE v MAN Diesel & Turbo SE [2016] SGHCR 6 to discuss two key issues raised by the SICC: the relationship between the Singapore High Court’s and the SICC’s jurisdictional rules, and the applicable test for the exercise of the SICC’s jurisdiction. This note argues that the possibility of a transfer to the SICC should influence the High Court’s exercise of its international jurisdiction, and that the SICC should not …

Restitution Of Non-Gratuitously Conferred Benefit In Malaysia: A Case For Sowing The Unjust Enrichment Seed, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article draws on the common law of unjust enrichment to rationalize and develop the right to recover a non-gratuitously conferred benefit set out in section 71 of Malaysia’s Contracts Act 1950. This attempt at legal transplant and modern restatement is made in the hope of injecting principle and clarity into the antique section with the eventual goal of reviving it for practical and modern use.

Restitution [2015], Man Yip

Research Collection Yong Pung How School Of Law

No abstract provided.

Restitution [2015], Man Yip

Research Collection Yong Pung How School Of Law

No abstract provided.

The Application Of The Morton Principles In Canada Steamship Lines Ltd V The King In Singapore Reconsidered, Wee Ling Loo

Research Collection Yong Pung How School Of Law

For the interpretation of clauses that purportto allow a contracting party, the proferens, to exclude or limit, or beindemnified against, liability that arises by reason of his or his agents’negligence, certain principles were laid down by the Privy Council in 1952 inCanada Steamship Lines Ltd v The King. Famously known as the ‘Mortonprinciples’ (named after Lord Morton who delivered the judgment of the PrivyCouncil) or the ‘Canada SS rules’ or guidelines, they prescribe a three-steptest to determine if these clauses effectively provide the protection sought bythe proferens. In Singapore, the Court of Appeal in Marina Centre Holdings PteLtd v Pars …

El Ineficiente Diseño De La Legislación Concursal Española: Una Propuesta De Reforma A Partir De La Experiencia Comparada Y De Un Análisis Económico Del Derecho Concursal [The Inefficient Design Of The Spanish Bankruptcy Act: A Proposal To Enhance The Attractiveness Of The Spanish Bankruptcy Regime Based On An Economic And Comparative Analysis Of Insolvency Law] In Spanish, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Spain has one of the world´s lowest business bankruptcy rates (that is, number of business bankruptcies per firm). Some authors have argued that the low usage of bankruptcy procedures in Spain is due to a ‘cultural’ problem faced by Spanish entrepreneurs. According to this hypothesis, the lack of a ‘bankruptcy culture’ makes Spanish entrepreneurs to be afraid of the use of the bankruptcy system. In this paper, however, I advocate for a totally different hypothesis. In my opinion, the low rate of business bankruptcies in Spain is not due to a ‘cultural’ problem but to an institutional one. Namely, I …