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Articles 91 - 120 of 169
Full-Text Articles in Commercial Law
Restitution [2014], Man Yip
Restitution [2014], Man Yip
Research Collection Yong Pung How School Of Law
No abstract provided.
Good Faith: Helping Commercial Parties Or Creating An Unnecessary Burden?, Ee-Ing Ong
Good Faith: Helping Commercial Parties Or Creating An Unnecessary Burden?, Ee-Ing Ong
Research Collection Yong Pung How School Of Law
One of the challenges facing Asian legal systems in the coming years is whether the courts should impose a general duty of good faith in contracts. The doctrine of good faith has been making inroads in various common law jurisdictions, most recently in Canada where the Supreme Court held in Bhasin v. Hrynew, 2014 SCC 71 that there was a duty of honest performance in all contracts. The idea behind imposing a duty of good faith in all contracts is to ensure that parties essentially “play fair” in contract negotiations and/or performance. However, is such a duty really necessary for …
Does The Obligation To Obtain The Consent Of A Third Party Extend To Taking Further Steps After Rejection?, Yihan Goh
Research Collection Yong Pung How School Of Law
The question posed in the Court of Appeal case of The One Suites Pte Ltd v Pacific Motor Credit (Pte) Ltd [2015] SGCA 21 (“The One Suites”) was whether an obligation to use all reasonable endeavours to obtain the consent of a third party extends to taking further steps after the third party had refused to give such consent. To this, the Court, with Andrew Phang Boon Leong JA writing its grounds of decision, answered, “it depends but largely no”. More precisely, the Court said that while there almost invariably will be an implied obligation to use all reasonable endeavours …
Bilateral Investment Treaty Interpretation: An Internationalist Spirit Tempered By Context: Government Of The Laos People’S Democratic Republic V Sanum Investments Ltd, Mahdev Mohan
Research Collection Yong Pung How School Of Law
This commentary discusses the first Singapore court decision to have interpreted a BIT to which Singapore is not a party. The case concerns a dispute between the Laos People’s Democratic Republic (“Laos”) and Sanum Investments Limited (“Sanum”), a company in corporated in Macau. The Court had to determine whether a bilateral investment treaty (“BIT”) between Laos and the People’s Republic of China (the “PRC-Laos BIT”) extended to Macau, which was handed over to China after the conclusion of the treaty. The Court concluded that neither the PRC nor Laos had intended for the treaty to apply to Macau. Further, the …
Directors’ Defence Of Reliance On Professional Advisers Under Anglo-Australian Law, Wai Yee Wan
Directors’ Defence Of Reliance On Professional Advisers Under Anglo-Australian Law, Wai Yee Wan
Research Collection Yong Pung How School Of Law
This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is …
Taking Stock Of The Change Of Position Defence, Hang Wu Tang
Taking Stock Of The Change Of Position Defence, Hang Wu Tang
Research Collection Yong Pung How School Of Law
The change of position defence is a developing doctrine and debate continues as to its true rationale and various facets of the defence remain unclear. Many issues surrounding the following two fundamental questions await clarifications from the courts: (a) What constitutes change of position? (b) What kind of conduct disqualifies a person from relying on the change of position defence? This article attempts to map out the contours of the debate which would hopefully be useful in framing the debate when this matter next comes before the courts.
Case Comment: Golden Season Pte Ltd And Others V Kairos Singapore Holdings Pte Ltd And Another [2015] Sghc 38, Gary Kok Yew Chan
Case Comment: Golden Season Pte Ltd And Others V Kairos Singapore Holdings Pte Ltd And Another [2015] Sghc 38, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
This 111-page judgement has highlighted a number of significant points of law relating to the treatment of Facebook postings, emails and SMS texts in the tort of defamation. They relate primarily to the legal requirements of establishing defamatory meaning, reference to the plaintiff and defences. In addition, the case examines the awards of general and special damages as well as the viability of awarding aggravated damages to corporate plaintiffs. Apart from the plaintiff’s actions in defamation and malicious falsehood, the defendant successfully counterclaimed for copyright infringement but failed in the action based on passing off. This brief case comment focuses …
Is A Contractual Clause Excluding A Right Of Set-Off Subject To The Requirement Of Reasonableness In The Unfair Contract Terms Act?, Yihan Goh
Research Collection Yong Pung How School Of Law
The Court of Appeal in Koh Lin Yee v Terrestrial Pte Ltd [2015] SGCA 6 (“Koh Lin Yee”) has decided that a contractual clause excluding a right of set-off is subject to the requirement of reasonableness in the Unfair Contract Terms Act (Cap 396, 1994 Rev Ed) (“UCTA”). In doing so, it also laid down some general guiding principles relating to the application of the UCTA, namely, when a party is considered to be dealing “as consumer” under s 12(1), when a contract contains standard terms of business under s 3(1) and the application of the requirement of …
Equity And Trusts [2014], Hang Wu Tang
Equity And Trusts [2014], Hang Wu Tang
Research Collection Yong Pung How School Of Law
No abstract provided.
Equity And Trusts [2014], Hang Wu Tang
Equity And Trusts [2014], Hang Wu Tang
Research Collection Yong Pung How School Of Law
No abstract provided.
Alternative Investment Markets Under Criticism: Reasons To Be Worried? Lessons From Gowex, Aurelio Gurrea-Martinez
Alternative Investment Markets Under Criticism: Reasons To Be Worried? Lessons From Gowex, Aurelio Gurrea-Martinez
Research Collection Yong Pung How School Of Law
The recent financial scandal of Gowex in the Spanish Alternative Investment Market (MAB) has reopened the debate about the dangers of lightly regulated markets and their optimal level of regulation. This article argues that Gowex’s collapse was not a failure of these markets but a failure of the gatekeepers in charge of overseeing Gowex’s activities. Therefore, we propose that regulators should focus on providing mechanisms to encourage gatekeepers to do their work in an effective and credible way. Namely, we propose that regulators should enhance the role and effectiveness of Nominated Advisers, since these players have been created precisely for …
Contract Law Update 2014, Yihan Goh
Contract Law Update 2014, Yihan Goh
Research Collection Yong Pung How School Of Law
With the end of 2014 almost upon us, it is apposite to take stock of the more important developments in Singapore contract law in the year. This entry examines four cases that straddle important developments across various fields in contract law, namely, formation, terms, breach and illegality. In each case, it can be seen that the Singapore courts are anxious to consolidate existing law, and to chart new courses where relevant and appropriate.
Corporate Claims Against Director For Paying Bribes On Company's Behalf: Ho Kang Peng V Scintronix (Formerly Ttl Holdings), Wai Yee Wan
Research Collection Yong Pung How School Of Law
Can a company recover the value of the bribe from a director who has paid the bribe, on behalf of the company, to a third party to secure certain benefits for the company, and where it is not alleged that the director had personally benefitted from the bribe? This question raises several complex issues relating to directors’ standard of care, corporate authorisation and corporate illegality, which were considered by the recent decision of the Singapore Court of Appeal in Ho Kang Peng v Scintronix Corp (formerly known as TTL Holdings).
Default Standards For Non-Absolute Obligation Clauses: Ks Energy V Br Energy Electricity Generation V Woodside Energy, Man Yip, Yihan Goh
Default Standards For Non-Absolute Obligation Clauses: Ks Energy V Br Energy Electricity Generation V Woodside Energy, Man Yip, Yihan Goh
Research Collection Yong Pung How School Of Law
A “reasonable endeavours” undertaking, and its variants, are common features of commercial contracts. These clauses might be inserted into agreements to balance the interests of the parties where the achievement of the contractual object involves conditions beyond the obligor’s control, for example, the procurement of a third party’s performance. Equally common is the insertion of these clauses into contracts to resolve a negotiation stalemate where one party refuses to promise the absolute achievement of the contractual objective.
Restitution Of Mistaken Enrichment Under Section 73 Of Malaysia's Contracts Act 1950: Pouring New Wine Into An Old Bottle?, Alvin W. L. See
Restitution Of Mistaken Enrichment Under Section 73 Of Malaysia's Contracts Act 1950: Pouring New Wine Into An Old Bottle?, Alvin W. L. See
Research Collection Yong Pung How School Of Law
This article makes two main suggestions regarding the interpretation of s 73 of Malaysia's Contracts Act 1950, which sets out the right to recover a mistaken enrichment. The first suggestion is that the courts should have regard to the historical background against which the section was enacted, especially because the pre-enactment common law was a historical curiosity. This will dispel certain misconceptions about the nature of the statutory right by shedding light on its supposed affinity with contract and its relationship with the obsolete forms of action and the principle of unjust enrichment. The second suggestion is that the content …
Judicial Inactivitism In Protecting Financial Consumer Against Predatory Sale Of Retail Structured Products: A Reflection From Retail Structured Notes Lawsuits In Taiwan, Chao-Hung Chen
Research Collection Yong Pung How School Of Law
This article analyzes 310 structured note lawsuits in Taiwan between 2000 and 2013 to examine courts’ attitude in dealing with claims of misselling retail structured notes. We find that courts were generally not favorable to retail investors. This provides a contrast with the financial regulator’s efforts to improve financial consumer protection since 2008. By examining plaintiffs’ key arguments and courts’ rulings, we find that it was difficult for investors to fulfill their burden of proof and courts were reluctant to award remedies when investors did sign on a contractual document confirming his knowledge on a few matters. While regulators are …
Agency And Partnership Law [2013], Pearlie M. C. Koh, Stephen Noel Henry Bull
Agency And Partnership Law [2013], Pearlie M. C. Koh, Stephen Noel Henry Bull
Research Collection Yong Pung How School Of Law
The laws relating to the creation of an agency, implied authority, holding out and apparent authority, duties of the agent in relation to Agency law are discussed. The laws relating to partnership law and issues such as relationship of partners to third parties, relationships of partners between themselves and capacity to be a partner are highlighted.
Recognition Of Foreign Judgments And Cross-Border Insolvencies, Adeline Chong
Recognition Of Foreign Judgments And Cross-Border Insolvencies, Adeline Chong
Research Collection Yong Pung How School Of Law
In the joined appeals of Rubin v Eurofinance and New Cap Reinsurance v Grant, the Supreme Court held that first, the traditional rules on recognition and enforcement of foreign judgments applied to judgments in insolvency proceedings, and secondly, the act of lodging proof in foreign insolvency proceedings by a creditor meant that he had submitted to the jurisdiction of the supervising court. This article considers these decisions and suggests that the ruling in Rubin is sound while that in New Cap is unfounded. Further, assuming instead that the law is ripe for reform, this article considers what might be appropriate …
A Wrong Turn In History: Re-Understanding The Exclusionary Rule Against Prior Negotiations In Contractual Interpretation, Yihan Goh
Research Collection Yong Pung How School Of Law
A reason justifying the exclusionary rule against prior negotiations in the interpretation of contracts is its longevity. Yet, the authorities commonly cited in support of the exclusionary rule are mostly traceable to Lord Wilberforce’s speech in the relatively recent case of Prenn v Simmonds. This article suggests that the law took a wrong turn in that case and caused later courts to support the exclusionary rule by recourse to policy-oriented justifications, instead of principle-based ones. The emphasis on policy-oriented justifications, and the recantation of Prenn v Simmonds as reason enough for the exclusionary rule, support an independent rule against prior …
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 …
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 …
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.
Book Review: The Construction Of Commercial Contracts By J. W. Carter, Yihan Goh
Book Review: The Construction Of Commercial Contracts By J. W. Carter, Yihan Goh
Research Collection Yong Pung How School Of Law
The Construction of Commercial Contracts by Professor J.W. Carter is an ambitious book. Its stated aim is to "explain as a coherent whole the principles which regulate the construction of commercial contracts". As will be seen, it more than meets this lofty aim, and is a valuable contribution to an area of work that is not only difficult, but also of immense practical importance. The book achieves its aim by explaining construction as constituting three separate stages: the identification of context (and terms), the determination of the meaning (and legal effect) of a contract, and, finally, the application of a …
A Reconsideration Of The Shareholder's Remedy For Oppression In Singapore, Pearlie Koh
A Reconsideration Of The Shareholder's Remedy For Oppression In Singapore, Pearlie Koh
Research Collection Yong Pung How School Of Law
The statutory remedy for oppression plays an important role in minority shareholder protection in Singapore. Both the scope of its application and the court's jurisdiction to make remedial orders must necessarily be wide in order for the remedy to be effective. Nevertheless, the remedy is not without limits. Indeed, it is crucial that the boundaries of the remedy be made clear so that legitimate rule of the majority is not too often, and erroneously, equated with tyranny by the majority. This paper considers a number of issues as to the scope of the oppression remedy in Singapore through a careful …
Regulation Of Over-The-Counter Derivatives: A Comparative Study Of Proposals In Singapore And Hong Kong, Chao-Hung Christopher Chen
Regulation Of Over-The-Counter Derivatives: A Comparative Study Of Proposals In Singapore And Hong Kong, Chao-Hung Christopher Chen
Research Collection Yong Pung How School Of Law
This chapter identifies some of the potential legal and policy issues involved in the future regulation of over-the-counter (OTC) derivatives. First, regulators must be cautious in the regulation and solvency of some mammoth clearing- houses. Second, Singapore and Hong Kong both face challenges in the areas of global regulatory cooperation and extra-territorial regulatory effects. Third, the exact scope of a clearing obligation determines whether there is any regulatory competition or room for regulatory arbitrage in the future. Fourth, there are legal definition problems with the term ‘derivative’ and its sub-categories that must be addressed. Fifth, there are potential privacy and …
Book Review: Remedies For Breach Of Contract By Solene Rowan, Howard Hunter
Book Review: Remedies For Breach Of Contract By Solene Rowan, Howard Hunter
Research Collection Yong Pung How School Of Law
No abstract provided.
Causation, Remoteness, Scope Of Duty And The Rubenstein Decision, Kee Yang Low
Causation, Remoteness, Scope Of Duty And The Rubenstein Decision, Kee Yang Low
Research Collection Yong Pung How School Of Law
Oftentimes, based on the facts of a case, what justice requires is reasonably clear; yet, when the clever arguments of the defendant’s lawyers have to be dealt with, the Judge faces difficult, even insurmountable obstacles as he seeks the legal justification for the result which he knows (or feels) is the correct one. Rubenstein v HSBC1is such a case. The Rubensteinjudgment is not easy to digest, for several reasons. First, the claims traversed statutory duty, tort of negligence and contract and, along with that, the perennial vexed question of whether different paths should lead to the same result. Second, the …
Irregularities In Procedure – Reconsidering Section 392, Pearlie M. C. Koh
Irregularities In Procedure – Reconsidering Section 392, Pearlie M. C. Koh
Research Collection Yong Pung How School Of Law
In corporate administration, procedures, and their due compliance, are often of as much significance as the outcomes of the proceedings they regulate. The consequence of a failure to comply with procedures, whether laid down statutorily or in the company's constitution, is often the invalidation of the subject proceeding. Such invalidation may perhaps be justified on the basis that faithful compliance does much to foster a perception that the outcomes determined at the proceedings so held are fair, a perception that is vitally important to the acceptability of the outcome by all concerned. Nevertheless, it is also the case that corporate …
Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh
Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh
Research Collection Yong Pung How School Of Law
This paper explores the divide between the law of contract and the law of restitution in dealing with the different situations that arise from one party commencing work prior to the conclusion of a formal contract. It argues that contract and unjust enrichment each have a proper role to play in dealing with such cases. First, it argues against a purely contractarian view that such cases should be exclusively resolved by the law of contract, through an implied collateral contract. Such a technique, applied vigorously, would result in nullifying the concept of “essential terms” and an artificial construction of parties …
Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen
Structured Notes Fiasco In The Courts: A Study Of Relevant Judgments In Taiwan Between 2009 And 2010, Christopher Chao-Hung Chen
Research Collection Yong Pung How School Of Law
The purpose of this article is to analyse relevant judicial decisions in Taiwan regarding structured notes sold to retail investors. Regarding pre-sale disputes, one issue was that investors failed to read contractual documents properly before signing contracts, so there was a question whether they could later claim a bank’s violation of its duty to explain. This article favours the view that an investor’s signature may exempt a bank’s duty, provided that investors are made aware of relevant warnings. In addition, for suitability assessment, relevant judgments show that customers were too easily classified as active investors based on a simple questionnaire. …