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Research Collection Yong Pung How School Of Law

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Full-Text Articles in Contracts

Certainty At Last?: A "New" Framework For Electronic Contracting In Singapore, Eliza Mik Jan 2013

Certainty At Last?: A "New" Framework For Electronic Contracting In Singapore, Eliza Mik

Research Collection Yong Pung How School Of Law

Singapore is the first Asian country to accede to the UNCITRAL Convention on the Use of Electronic Communications in International Contracts (“CUECIC” or “Convention”). Upon accession, the Singaporean Electronic Transactions Act (“ETA” or “Act”) was repealed and re-enacted in a modified version, with effect from 1 July 2010. The modified ETA retains the framework of the original ETA but adds or amends certain provisions dealing with electronic contracting to align domestic e-commerce regulations with the Convention. Accordingly, Singapore is not only the first Asian nation to accede to the CUECIC but also the first nation to implement some of its …


Setting Aside An Award Over The Mis-Application Of A Choice Of Law Clause: Quarella Spa V Scelta Marble Australia Pty Ltd [2012] Sghc 166, Darius Chan Oct 2012

Setting Aside An Award Over The Mis-Application Of A Choice Of Law Clause: Quarella Spa V Scelta Marble Australia Pty Ltd [2012] Sghc 166, Darius Chan

Research Collection Yong Pung How School Of Law

In Quarella SpA v Scelta Marble Australia Pty Ltd [2012] SGHC 166, the High Court of Singapore (per Prakash J) rejected an application to set aside two related arbitration awards. The ground for setting aside was an alleged misinterpretation of a choice of law clause by the tribunal. In rejecting the application, the High Court demonstrated its unwillingness to set aside an award when the tribunal has considered and respected the choice of law clause (regardless of the interpretation the tribunal ultimately preferred). Notably, the High Court did not close the door on instances where the tribunal may have failed …


Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip Sep 2012

Past Consideration Or Unconnected Consideration, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

It is trite law that a valid and enforceable contract must be supported by consideration. The recent Court of Appeal case of Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713 is a further addition to the local jurisprudence on consideration, specifically the issue of past consideration. This note considers the specific issue of past consideration and argues that its label should be discarded in favour of a more realistic one that correctly emphasises its underlying concerns.


Mistaken Identity, Identity Theft And Problems Of Remote Authentication In E-Commerce, Eliza Mik Aug 2012

Mistaken Identity, Identity Theft And Problems Of Remote Authentication In E-Commerce, Eliza Mik

Research Collection Yong Pung How School Of Law

The problem of mistaken identity in e-commerce transactions brings together seemingly unrelated issues: privacy, network security, digital signatures – and classic contract law. The technological characteristics of the Internet have a tendency to turn traditional legal doctrines on their head, or, at least expose flaws in existing legal arguments. Combining an academic exercise with the practical implications of the insecurity of the Internet, this paper draws some unexpected conclusions regarding cases of mistaken identity. The latter must be analysed afresh with a number of factors in mind: the more widespread use of fictitious identities in on-line transactions, the higher incidence …


Unitas Via Diversitas. Can The Common European Sales Law Harmonize Through Diversity?, Gary Low Jul 2012

Unitas Via Diversitas. Can The Common European Sales Law Harmonize Through Diversity?, Gary Low

Research Collection Yong Pung How School Of Law

The proposed Regulation for a Common European Sales Law (CESL),1 unveiled on 11 October 2011, marks the opening legislative salvo on the future of European contract law. Besides critique from private lawyers on the substantive content therein,2 the legality of the CESL under Union law may be called into question.3 The CESL cites Article 114 of the Treaty on the Functioning of the European Union (TFEU) as its legal basis." In so doing, it goes against the grain of received wisdom: virtually all the studies on the subject ruled out the use of Article 114 TFEU in favour of Article …


Contract Law, Chee Ho Tham, Pey Woan Lee, Yihan Goh Jul 2012

Contract Law, Chee Ho Tham, Pey Woan Lee, Yihan Goh

Research Collection Yong Pung How School Of Law

No abstract provided.


Liability For Work Done Where Contract Is Denied: Contractual And Restitutionary Approaches, Man Yip, Yihan Goh May 2012

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 …


Contract Modifications: Reflections On Two Commonwealth Cases, Pey Woan Lee May 2012

Contract Modifications: Reflections On Two Commonwealth Cases, Pey Woan Lee

Research Collection Yong Pung How School Of Law

The common law rule that a promise to perform a pre-existing obligation is no consideration is said to have done the most in giving the doctrine of consideration a bad name. While the English innovation of 'practical benefits' in Williams v Roffey has effectively enervated this rule, general discontentment with the conceptual difficulties residing in this approach has often led to calls for the abolition of consideration in the context of contract modifications. This article examines two Commonwealth cases that took this step and warns against an overly optimistic view of such a development. It argues, instead, that the post-Williams …


Contractual And Procedural Effects Of Non-Exclusive Jurisdiction Agreements, Darius Chan Mar 2012

Contractual And Procedural Effects Of Non-Exclusive Jurisdiction Agreements, Darius Chan

Research Collection Yong Pung How School Of Law

In Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala, a respondent’s attempt to stay Singaporean proceedings on forum non conveniens grounds in favour of a non-exclusive jurisdiction (Hong Kong) was denied. In doing so, the Singapore Court of Appeal set out important principles concerning the legal effects of a non-exclusive jurisdiction agreement. This note makes a comparative analysis of the decision with English case law. It will be seen that the decision has taken a bold and firm step in a direction where English case law had previously tiptoed but still not fully embarked.


The Unimportance Of Being "Electronic" Or Popular Misconceptions About “Internet Contracting”, Eliza Mik Jan 2011

The Unimportance Of Being "Electronic" Or Popular Misconceptions About “Internet Contracting”, Eliza Mik

Research Collection Yong Pung How School Of Law

Existing e-commerce literature abounds with misconceptions regarding both technology and contract law. Long-standing legal concepts are adorned with “e-” or “cyber-” to appear more exciting. The traditional contractual regime issupplanted with new principles instead of being supplemented with technological considerations. It is one thing, to include technology in legal analyses, it is another to create separate, technology-specific categories. Separate categories justify the departure from traditional principles. Most, if not all, alleged “challenges” created by new communication scenarios fit within the existing legal framework, technological complexity and novelty of the Internet notwithstanding. Most “challenges” are also unrelated to the fact that …


Some Technological Implications For Ascertaining The Contents Of Contracts In Web-Based Transactions, Eliza Mik Jan 2011

Some Technological Implications For Ascertaining The Contents Of Contracts In Web-Based Transactions, Eliza Mik

Research Collection Yong Pung How School Of Law

This paper points out some unexpected relationships between specific aspects of contract law and specific Internet-related technologies. The discussion is not about the interplay between “Law” and “Technology,” or the “Law” and the “Internet.” The aim is modest: to identify some theoretical chokepoints created by the technologies involved in web-based commerce and to point out the legal uncertainties persisting in this area. The analysis is confined to the process of contract formation, not to matters of substantive law. It is during this process that parties assume their contractual obligations and the contents of a contract crystallize.


Discharge Of A Contract Where Both Parties Are In Breach: Alliance Concrete Singapore Pte Ltd V Comfort Resources Pte Ltd, Chee Ho Tham Sep 2010

Discharge Of A Contract Where Both Parties Are In Breach: Alliance Concrete Singapore Pte Ltd V Comfort Resources Pte Ltd, Chee Ho Tham

Research Collection Yong Pung How School Of Law

This case note examines the most recent attempt by the Court of Appeal to provide further guidance on: (a) how the doctrine of discharge of contract by breach operates when both parties are in breach of their contract obligations; and (b) when a promisee is entitled to rely on an alternate basis to justify its election to discharge a contract for the promisor’s breach when the basis originally relied upon and communicated to the promisor is ultimately found to be legally insufficient.


The Division Of Matrimonial Assets: A Mathematical Methodology As A "Check"? Ajr V. Ajs, Siyuan Chen Sep 2010

The Division Of Matrimonial Assets: A Mathematical Methodology As A "Check"? Ajr V. Ajs, Siyuan Chen

Research Collection Yong Pung How School Of Law

In a recent High Court decision concerning the division of matrimonial assets, the Judge developed an extensive (and somewhat mathematical) methodology “as a rough check” to his discretionary powers in determining a “just and equitable” division of the matrimonial assets. This introduced a new perspective to an exercise long considered to be impossible to be mathematically precise. This piece considers the extent of the utility of the new methodology.


The (Ir)Relevance Of Harmonization And Legal Diversity To European Contract Law - A Perspective From Psychology, Gary Low Jul 2010

The (Ir)Relevance Of Harmonization And Legal Diversity To European Contract Law - A Perspective From Psychology, Gary Low

Research Collection Yong Pung How School Of Law

Differences between contract laws of Member States are often said to impose costs on and deter cross-border trade, and in order to increase cross-border trade, these contract laws ought to be harmonized. This article promises a paradigm shift in considering whether there is a need for harmonization; and if so, what form it ought to take. A behavioural approach is adopted to answer two underlying questions: how do actors think about these differences when they decide to contract? How does the form of harmonization influence such decisions? Insights from disciplines like cognitive and social psychology are identified and applied to …


Updating The Electronic Transactions Act? Australia's Accession To The Un Convention On The Use Of Electronic Communications In International Contracts 2005, Eliza Karolina Mik Jan 2010

Updating The Electronic Transactions Act? Australia's Accession To The Un Convention On The Use Of Electronic Communications In International Contracts 2005, Eliza Karolina Mik

Research Collection Yong Pung How School Of Law

This article discusses the Australian Government’s proposal to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts as well as certain amendments to existing Australian electronic transactions legislation, i.e. the Electronic Transactions Act (Commonwealth) 1999 (”ETA”) and its state equivalents. Without going into a detailed discussion of all suggested amendments, this article focuses on those recommendations, which affect the area of contract formation, in particular: the use of automated systems in on-line transactions and the determination of the time the contract comes into existence. A critical review of the proposed changes reveals that their …


Evaluating The Impact Of The Un Convention On The Use Of Electronic Communications In International Contracts On Domestic Contract Law: The Singapore Example, Eliza Mik Jan 2010

Evaluating The Impact Of The Un Convention On The Use Of Electronic Communications In International Contracts On Domestic Contract Law: The Singapore Example, Eliza Mik

Research Collection Yong Pung How School Of Law

The United Nations Commission on International Trade Law (UNCITRAL) Convention on the Use of Electronic Communications in International Contracts (CUECIC or Convention) was adopted on 23 November 2005. Its essential objective is to establish uniform rules intended to “remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, with a view to enhancing legal certainty and commercial predictability.” The Convention relies on the UNCITRAL Model Law on Electronic Commerce (MLEC), which constitutes an e-commerce flagship project dating back to 1995. It also resembles UNCITRAL’s Convention …


Effective Use Of Non-Reliance Clauses: Satisfying Lowe V Lombank, Kee Yang Low Dec 2009

Effective Use Of Non-Reliance Clauses: Satisfying Lowe V Lombank, Kee Yang Low

Research Collection Yong Pung How School Of Law

The inclusion in contracts of “non-reliance” clauses, as a means of pre-empting assertions of misrepresentation, has become commonplace. The validity and effectiveness of such clauses is another matter. This article discusses how a non-reliance clause may act as an evidential estoppel.


The Effectiveness Of Acceptances Communicated By Electronic Means, Or – Does The Postal Acceptance Rule Apply To Email, Eliza Mik Nov 2009

The Effectiveness Of Acceptances Communicated By Electronic Means, Or – Does The Postal Acceptance Rule Apply To Email, Eliza Mik

Research Collection Yong Pung How School Of Law

The ‘traditional’ classi?cation into ‘instantaneous’ and ‘non-instantaneous’ methods of communication must be abandoned. As all Internet transmissions are instantaneous, the choice between the principle of receipt and the postal exception must be based on other criteria. The focus must be shifted from communication devices to the characteristics of the communication process. The latter resembles either dealings face-to-face or dealings at a distance. This simple division should remain the basis for all analyses. Instantaneity and control are two of many characteristics of face-to-face dealings and are not the only factors to be taken into account when making the choice between the …


In Re Sigma Finance Corporation (In Administrative Receivership) And In Re The Insolvency Act 1986 [2009] Uksc 2 (29 Oct 09): Commentary, Chao-Hung Christopher Chen Nov 2009

In Re Sigma Finance Corporation (In Administrative Receivership) And In Re The Insolvency Act 1986 [2009] Uksc 2 (29 Oct 09): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other shortterm creditors.


Sigma Finance Corporation And In Re The Insolvency Act 1986 [2009] Uksc 2 (Contract, Contractual Terms): Commentary, Chao-Hung Christopher Chen Nov 2009

Sigma Finance Corporation And In Re The Insolvency Act 1986 [2009] Uksc 2 (Contract, Contractual Terms): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp1 was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other short-term creditors.


Inducing Breach Of Contract, Conversion And Contract As Property, Pey Woan Lee Sep 2009

Inducing Breach Of Contract, Conversion And Contract As Property, Pey Woan Lee

Research Collection Yong Pung How School Of Law

This article seeks to understand contractual rights through an examination of the possible ‘property’ content in contracts in the context of the inducement tort and conversion. It argues that, contrary to popular perception, contracts and property are different shades of a similar phenomenon. Not being a reified ‘thing’ with stable features and structure, property is a relative rather than an absolute concept. To determine whether the holder of an intangible resource ought to be conferred with ‘property’ or exclusive control of access to such resource, one has to evaluate the relevant practical, legal and moral considerations. Applied to the context …


Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb Bank Bhd V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Adeline Swee Ling Chong Sep 2009

Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb Bank Bhd V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Adeline Swee Ling Chong

Research Collection Yong Pung How School Of Law

This note examines the Singapore Court of Appeal’s judgment in CIMB Bank Bhd v Dresdner Kleinwort Ltd, focusing specifically on what role, if any, should be played by a choice of law clause contained in a void contract in relation to the restitutionary aftermath of voidness.


‘Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Swee Ling Adeline Chong Sep 2009

‘Void Contracts And The Applicability Of Choice Of Law Clauses To Consequential Restitutionary Claims: Cimb V Dresdner Kleinwort Ltd [2008] 4 Slr 543, Swee Ling Adeline Chong

Research Collection Yong Pung How School Of Law

This note examines the Singapore Court of Appeal’s judgment in CIMB Bank Bhd v Dresdner Kleinwort Ltd, focusing specifically on what role, if any, should be played by a choice of law clause contained in a void contract in relation to the restitutionary aftermath of voidness.


Case Comment: Robertson Quay Investment Pte Ltd V Steen Consultants Pte Ltd, Yihan Goh Jun 2009

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 …


Doctrine And Fairness In The Law Of Contract, Andrew B.L. Phang Jan 2009

Doctrine And Fairness In The Law Of Contract, Andrew B.L. Phang

Research Collection Yong Pung How School Of Law

This paper explores, through illustrations from the law of contract, the important centraltheme to the effect that the rules and principles, which constitute thedoctrineof the law,are not ends in themselves but are, rather, the means through which the courts arrive atsubstantively fairoutcomes in the cases before them. The paper focuses on the concept of‘radicalism’, which relates to the point at which the courts decide that it is legallypermissible to hold that a contract should come to an end because a radical or funda-mental ‘legal tipping point’ has not only been arrived at but has, in fact, been crossed. Itexplores the …


The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo Sep 2008

The Effective Reach Of Choice Of Law Agreements, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

Two fundamental principles relating to party autonomy developed in the recent history of the conflict of laws. Despite initial reservations, the law today takes for granted that the parties’ agreement is nearly conclusive in respect of both their choice of litigation forum and their choice of the law governing the contractual relationship. Meanwhile, the law of obligations – in tort, restitution and equity – has grown apace; disputes between contracting parties today are rarely confined to pure contractual issues. Can contracting parties choose the law to govern non-contractual disputes in cross-border litigation? In the absence of such choice, to what …


Unjust Enrichment Within A Valid Contract: A Close Look At Roxborough V. Rothmans Of Pall Mall Australia Ltd, Hang Wu Tang Jan 2007

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 …


Contract Law, Chee Ho Tham, Pearlie Koh, Pey Woan Lee Jan 2007

Contract Law, Chee Ho Tham, Pearlie Koh, Pey Woan Lee

Research Collection Yong Pung How School Of Law

No abstract provided.


Contract Law, Chee Ho Tham, Pearlie Koh, Pey Woan Lee Jul 2006

Contract Law, Chee Ho Tham, Pearlie Koh, Pey Woan Lee

Research Collection Yong Pung How School Of Law

No abstract provided.


The Public Policy And Mandatory Rules Of Third Countries In International Contracts, Adeline Chong Apr 2006

The Public Policy And Mandatory Rules Of Third Countries In International Contracts, Adeline Chong

Research Collection Yong Pung How School Of Law

While party autonomy has risen in the field of contract, this autonomy is not unfettered. Parties are allowed to choose the governing law of the contract but limitations on party choice can be seen through the operation of public policy and mandatory rules. The public policy and mandatory rules of three laws may be imposed onto the contract: that of the lex fori, the governing law of the contract and the law of a third country with a connection to the contract. It is generally accepted that the public policy and mandatory rules of the forum have a legitimate role …