No. 2019, January - December 2019

Index

• A NETWORK ANALYSIS OF THE SINGAPORE COURT OF APPEAL'S CITATIONS TO PRECEDENT
• Book Review
• Book Review
• Book Review - MODERN ADVOCACY – MORE PERSPECTIVES FROM SINGAPORE
• Book Review - THE MAKING OF A JUSTICE: REFLECTIONS ON MY FIRST 94 YEARS
• Case Note
• Case Note
• Comment
• CONCILIATION OF INVESTOR–STATE DISPUTES, ARB-CON-ARB, AND THE SINGAPORE CONVENTION
• CONSTRUCTING THE CONVENTION ON MEDIATION
• CONTRACT LAW IN COMMONWEALTH COUNTRIES: UNIFORMITY OR DIVERGENCE?
• DELEGATION OF POWERS FOR MODERN GOVERNMENT
• DOES TAX EVASION GENERATE CRIMINAL PROCEEDS?
• ENDEAVOURS CLAUSES IN SINGAPORE CONTRACT LAW
• ENFORCEMENT OF INTERNATIONAL MEDIATED
• ENFORCEMENT OF INTERNATIONAL SETTLEMENT
• ENFORCING PUBLIC TAKEOVER REGULATION
• ENLARGED PANELS IN THE COURT OF APPEAL OF SINGAPORE
• EQUAL JUSTICE UNDER THE CONSTITUTION AND SECTION 377A OF THE PENAL CODE
• FAIR USE ON INSTAGRAM
• FIFTY YEARS SINCE ENACTING THE ADMINISTRATION OF MUSLIM LAW ACT
• INTERNATIONAL COMMERCIAL MEDIATION
• INTRODUCTION
• JUDICIAL SALE OF ARRESTED VESSELS
• Lecture
• Lecture
• Lecture
• Lecture - ONES DAY PROFESSORSHIP OF COMMERCIAL LAW LECTURE 2019 – “THE STATE OF ILLEGALITY”
• MEDIATING ACROSS CULTURES Some Practical Lessons
• MEDIATION CLAUSES
• PIERCING THE VEIL OF CONFIDENTIALITY IN MEDIATION TO ENSURE GOOD FAITH PARTICIPATION
• SOME CURRENT ISSUES IN SINGAPORE CORPORATE LAW
• TEN TRENDS IN INTERNATIONAL MEDIATION
• THE EVOLUTION OF THE SINGAPORE CRIMINAL JUSTICE PROCESS
• THE IDEALS IN THE PROPOSED RULES OF COURT
• THE IMPACT OF BRAIN SCIENCE ON CONFLICT AND ITS RESOLUTION
• THROUGH THE LOOKING GLASS: AN INSIDER'S PERSPECTIVE INTO THE MAKING OF THE SINGAPORE CONVENTION ON MEDIATION
• A NETWORK ANALYSIS OF THE SINGAPORE COURT OF APPEAL'S CITATIONS TO PRECEDENT This article presents findings from an empirical network analysis of citation practices in Singapore's highest court. A network of all 987 reported Court of Appeal judgments handed down from 2000 to 2017 is constructed. Network centrality algorithms are used to rank judgments by centrality. Judgments on contract law, particularly on contractual interpretation and terms, emerge as the most central. Based on this, this article argues that more attention can be paid to interpretation per se as a legal skill. More generally, this article establishes a framework for applying network analysis to Singapore jurisprudence on a larger scale.
• Book Review LAW ON CARRIAGE OF GOODS BY SEA* by Tan Lee Meng
• Book Review MODERN ADVOCACY – MORE PERSPECTIVES FROM SINGAPORE* Eleanor Wong, Lok Vi Ming SC & The Honourable Justice Vinodh Coomaraswamy gen eds
• Book Review REBOOTING JUSTICE: MORE TECHNOLOGY, FEWER LAWYERS, AND THE FUTURE OF LAW* by Benjamin H Barton & Stephanos Bibas
• Book Review THE MAKING OF A JUSTICE: REFLECTIONS ON MY FIRST 94 YEARS* by John Paul Stevens
• Case Note ADMISSIBILITY OF FRESH EVIDENCE IN A CRIMINAL TRIAL Opening Pandora's Box? Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 The Court of Appeal has had occasion to revisit the rules as to the admissibility of fresh evidence at a criminal appeal. In Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544, the court approved the three conditions of non-availability, relevance and reliability articulated in the English case of Ladd v Marshall [1954] 1 WLR 1489 and further held that these conditions continue to apply “in an unattenuated manner” to applications by the Prosecution to admit further evidence in a criminal appeal. The court thus refused the Prosecution's application to admit affidavits from witnesses whose evidence could have been obtained with reasonable diligence. However, rather surprisingly, it allowed in part a report from a psychologist, prepared for the appeal and essentially to rebut the findings of the trial judge as to the credibi
• Case Note THE PROBLEM WITH RAKNA The Scope of the Preclusive Effect of Article 16(3) of the Model Law RAKNA Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2018] SGHC 78 In Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd [2018] SGHC 78, Quentin Loh J extended the preclusive effect of Art 16(3) of the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (“the Model Law”) to a party that did not participate in the arbitration. It is respectfully submitted that this holding is wrong. The decision inappropriately extrapolates from Singapore Court of Appeal obiter comments in PT First Media TBK v Astro Nusantara International BV [2014] 1 SLR 372 and does not grapple with the Model Law's travaux or prior Singaporean authority – which consider non-participating and boycotting parties to be excluded from Art 16(3)'s preclusive effect. Nor do considerations of cost and efficiency support broadening the preclus
• Comment EMPLOYMENT ACT CHANGES Implications and Uncertainties Since its introduction in 1968, the Employment Act (Cap 91, 2009 Rev Ed) has had a steady stream of changes made to it over the years. However, the latest introduced in November 2018 are probably the most significant in many ways. While the latest amendments have brought about significant changes, the focus of this comment will be on issues relating to the termination of the employment contract, particularly wrongful dismissal.
• CONCILIATION OF INVESTOR–STATE DISPUTES, ARB-CON-ARB, AND THE SINGAPORE CONVENTION Conciliation is a dispute settlement mechanism that is particularly suitable for investor–State disputes. It provides flexibility for political sensitivities, relationship preservation, and technical complexity. Most importantly, it offers neutral evaluation of the quantum of compensation. Yet conciliation has played a minimal role in assisting the settlement of investor–State disputes in the last 50 years – why? Two important obstacles to the settlement of investment disputes are the investor's preference for binding results and restrictions on government officials for fear of corruption. This article examines how conciliation and arbitration should be structured to form complementary negotiation windows, examines the prospects of the 2019 Singapore Convention on International Settlement Agreements Resulting from Mediation for conciliation, and recommends that institutions handling investment disputes offer Arb-Con-Arb di
• CONSTRUCTING THE CONVENTION ON MEDIATION The Chairperson's Perspective This article explores how the new United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation (“Singapore Convention”), was developed, through the lens of the chairperson of the negotiating process. It revisits the history of early discussions on an international mechanism for the enforcement of mediated settlement agreements, on which no real agreement could be reached. Fast-forwarding to more than a decade later, this article looks in particular at the five issues in the packaged deal that made the conclusion of negotiations on the Singapore Convention possible. Through an exploration of the considerations that went into finalising the most difficult issues through the compromise package, this article appreciates the considerations behind the construction of the Singapore Convention, and how the diversity of representatives and perspectives in th
• CONTRACT LAW IN COMMONWEALTH COUNTRIES: UNIFORMITY OR DIVERGENCE? The present article examines – through a consideration of developments in the most recent and most topical areas of contract law – whether and in what areas the contract law of various Commonwealth jurisdictions has diverged (in the main, from English law) and, more importantly, why such divergence has occurred. It also considers areas where there has been both flux and divergence in the sense that there is both uncertainty in development as well as divergence between jurisdictions (notably, in discharge by breach of contract, unconscionability as well as emerging categories of contractual damages). The article also attempts, in explaining why the respective areas developed in the way they did, to draw out some normative threads that might simultaneously furnish Commonwealth courts with legal methodology as well as tools for developing the law in their respective jurisdictions (bearing in mind the fact that these normative threads do not (
• DELEGATION OF POWERS FOR MODERN GOVERNMENT Statutory Mechanisms, the Carltona Principle and Suggestions for Reform* Delegation is a necessary part of modern government administration. The sheer volume of administrative decisions and subsidiary legislation required to be made means that it is often inevitable for a minister or a public officer who is vested with statutory powers to delegate these powers to other public officers. Although delegation and the related concept of devolution pervade all areas of government administration, these concepts are little understood and written about in Singapore. This article explores the topic of how statutory powers are delegated and devolved in government. The first part is explanatory. It outlines and explains the four options available to government agencies when seeking to delegate or devolve a statutory power – delegate on under the Interpretation Act (Cap 1, 2002 Rev Ed), delegation using specific statutory provisions, delegation using the doctrine of imp
• DOES TAX EVASION GENERATE CRIMINAL PROCEEDS? In recent years, the Financial Action Task Force has led a global push to criminalise laundering of the “proceeds of tax evasion”. Yet many common law courts hold that tax evasion does not generate “proceeds” in the conventional sense. This article reviews the case law and explores its implications for money laundering offences predicated on tax evasion.
• ENDEAVOURS CLAUSES IN SINGAPORE CONTRACT LAW Endeavours clauses are a useful mechanism for the imposition of non-absolute (or qualified) contractual obligations. This article examines how the various types of endeavours clauses – in particular, “best endeavours”, “all reasonable endeavours” and “reasonable endeavours” clauses – are interpreted. Practical issues relating to the use of endeavours clauses are also considered: these include how parties may deviate from the established standards imposed by endeavours clauses, as well as uncertainty problems that may arise from the use of endeavours clauses, particularly, in agreements to endeavour to agree.
• ENFORCEMENT OF INTERNATIONAL MEDIATED SETTLEMENTS WITHOUT THE SINGAPORE CONVENTION ON MEDIATION This article considers how international mediated settlement agreements can be enforced without the Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”). Although the Singapore Convention on Mediation represents an important contribution to facilitate resolution of cross-border disputes through mediation, it will take time before there are enough signatories to make a significant impact. Additionally, in deciding whether or not to become a signatory to the Singapore Convention on Mediation or to opt out of it if given the option, jurisdictions and potential users of mediation will need to be aware of what the available alternatives are. This article discusses these alternatives, taking into account common law, civil law and other international instrument approaches to enforcement.
• ENFORCEMENT OF INTERNATIONAL SETTLEMENT AGREEMENTS RESULTING FROM MEDIATION UNDER THE SINGAPORE CONVENTION Private International Law Issues in Perspective This article introduces the Singapore Convention on International Settlement Agreements Resulting from Mediation (“the Convention”). It discusses the enforcement of mediated settlement agreements under the Convention against the background of private international law. First, the Convention and its genesis are introduced. Second, the rationale and scope of the Convention are examined. Third, the Convention is placed in the context of private international law. Fourth, the requirements for enforcement of an international mediated settlement agreement (“IMSA”) under the Convention are laid out. Fifth, the grounds for refusal of judicial enforcement of IMSAs are examined. The article ends with a conclusion and outlook.
• ENFORCING PUBLIC TAKEOVER REGULATION Reconciling Public and Private Interests* Takeover regulation in the UK, Hong Kong and Singapore relies on takeover codes and takeover panels. However, parties aggrieved by the decisions of the panels may sometimes challenge them in the courts, giving rise to the potential of overlapping jurisdictions. The problem is compounded by two factors: the enforcement of the takeover codes can have substantive implications on the parties' ability to enforce their rights in courts, and takeover panels and courts assess matters differently. This article argues that there needs to be a clearer delineation between the potentially overlapping jurisdictions of the takeover panels and the courts.
• ENLARGED PANELS IN THE COURT OF APPEAL OF SINGAPORE For many years the Court of Appeal of Singapore generally sat with no more than three judges to hear cases. Since 2014, however, quintets have increasingly been constituted in that court. This article considers the recent practice in Singapore and, drawing on comparisons with the position in some other Commonwealth jurisdictions, offers a few thoughts on its possible operation in the future.
• EQUAL JUSTICE UNDER THE CONSTITUTION AND SECTION 377A OF THE PENAL CODE The Roads Not Taken This article takes a fresh look at s 377A of Penal Code (Cap 224, 2008 Rev Ed), and critically considers its scope and object against the backdrop of the Court of Appeal's and High Court's decisions in Lim Meng Suang v Attorney-General [2015] 1 SLR 26 and Tan Eng Hong v Attorney-General [2013] 4 SLR 1059. Through a close examination of the legislative history of s 377A, it argues that s 377A is not concerned with male-male penetrative sex covered by the repealed s 377 (sex against the order of nature), but with other acts of gross indecency. The article also (a) argues that the proper application of Art 12(1) – especially in the case of penal statutes – requires the court to first find a justifiable cause for discrimination, and then to apply the “reasonable classification” test against the impugned law; and (b) examines other issues relating to constitutional adjudication, such as the presumption of constitu
• FAIR USE ON INSTAGRAM Transformative Self-expressions or Copyright Infringing Reproductions? The phenomenon of the rise of social media in providing immediate and easy dissemination of digitalised content online has bred a group of innocent private social media “infringers”, especially in Singapore, whose copyright law was not created with such content in mind. This article explores users' behaviours on Instagram, how their actions onsite could infringe on another's copyright, and their inability to rely on the fair dealing defence in Singapore. In the spirit of stimulating creativity with creative works, the fifth factor should be removed to facilitate greater access to creative works, and eventually build a robustly cultured public domain.
• FIFTY YEARS SINCE ENACTING THE ADMINISTRATION OF MUSLIM LAW ACT Muslim Law on Polygamy in Singapore The Muslim law on polygamy in Singapore has developed significantly since the enactment of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed), which established procedural rules to regulate applications to contract a polygamous marriage. On the other hand, the legal principles underlying polygamy are deeply rooted in the religion and guidance can be gleaned from the decisions of the Singapore Syariah Appeal Board to understand how contemporary courts practise Muslim law on polygamy in the current legal landscape. Therefore, this article aims to provide a meaningful articulation of Singapore's Muslim law on polygamy based on the decisions of the Singapore Syariah Appeal Board and the interaction with the relevant statutes, and considers comparisons between Singapore and Malaysia in their approach towards Muslim polygamy.
• GOVERNMENT FUNDING OF TOWN COUNCILS The Role of Private Law
• INTERNATIONAL COMMERCIAL MEDIATION The Singapore Model Singapore, an island nation, situated at the heart of Southeast Asia, serves as a key node for businesses serving the Asia-Pacific region, and a significant launchpad for access to major emerging markets in Southeast Asia, China and India. Moreover, in recent years, Asia has experienced unprecedented development and growth. Against this fast-evolving landscape, Singapore's international dispute resolution framework and services have developed rapidly in tandem, to serve the needs of the region. Set against the backdrop of Singapore's broader vision to serve as an international dispute resolution hub for cross-border disputes, this article traces the development of Singapore's user-centric model of international commercial mediation which is built upon Singapore's trusted legal framework, anchored by the rule of law, and supported by a comprehensive suite of high-quality dispute resolution services. The article also posits a mapping of key aspect
• INTRODUCTION
• JUDICIAL SALE OF ARRESTED VESSELS The Suitability of Taobao As a Platform for a Singapore Judicial Sale In 2017, a Singapore registered vessel was arrested and sold by the Chinese courts on a well-known online shopping website, Taobao. There is a growing trend by the Chinese courts for arrested ships to be sold on Taobao. What are the drawbacks of a judicial sale on Taobao and should the Singapore courts follow the Chinese courts' use of Taobao as a platform for judicial sales?
• Lecture JONES DAY PROFESSORSHIP OF COMMERCIAL LAW LECTURE 2019 – “THE STATE OF ILLEGALITY”
• Lecture SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2018 – “AN ESSENTIAL DEDICATION TO HONOUR AND SERVICE”
• Lecture SINGAPORE ACADEMY OF LAW DISTINGUISHED SPEAKER LECTURE 2018 – “CERTAINTY VERSUS CREATIVITY: SOME POINTERS TOWARDS THE DEVELOPMENT OF THE COMMON LAW” In an October 2017 lecture entitled “Contractual Interpretation: Do Judges Sometimes Say One Thing and Do Another?”,† I pointed out that the law on contractual interpretation as laid down in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 had not survived the two recent UK Supreme Court decisions in Arnold v Britton [2015] 2 WLR 1593 and Wood v Capita Insurance Services Ltd [2017] AC 1173. In a May 2018 lecture entitled “Preserving the Integrity of the Common Law”,‡ I gave a number of examples of recent UK Supreme Court decisions, with which the highest courts in other Commonwealth common law jurisdictions had not agreed. I suggested that the development of the common law should be incremental and that judges should be cautious about seismic changes or approaching landmark cases with a blank sheet of pape
• Lecture “CHALLENGES FOR INDEPENDENT LAW REFORMERS: EXTERNAL PRIORITIES, SHORTER TIMESCALES AND THE RESPECTIVE ROLES OF LEGISLATIVE AND COURT-LED REFORM”
• MEDIATING ACROSS CULTURES Some Practical Lessons As the use of mediation in complex disputes between individuals, organisations and countries grows, so does demand for competence in the intercultural field. Yet few issues today are as hotly contested as culture, both in society and in the dispute resolution field. For mediators, fundamental questions remain: • Is mediation itself a culturally transferable phenomenon? • Can mediators really be scrupulously neutral? • Is culture the same as ethnicity? Is it something more? • How are individual differences between people from the same cultural group handled, let alone between people of different backgrounds? • Are models of mediation universally applicable? • Must mediators adjust their model to suit parties and situations? This article addresses these and other questions, and suggests some practical ways to take account of culture in the process of negotiation and in the resolution of disputes.
• MEDIATION CLAUSES Enforceability and Impact Mediation can only begin and continue on the basis of the parties' voluntary participation. Therefore, it is important to have clarity regarding the parties' desire to submit their dispute to mediation. This article adopts an international comparative perspective in analysing the issues that arise when parties dispute the validity and effect of their mediation clause. Mediation clauses give rise to three clear points for discussion: When are these agreements binding on the parties; to what extent should these agreements be enforced; and how should breaches of these agreements be remedied?
• PIERCING THE VEIL OF CONFIDENTIALITY IN MEDIATION TO ENSURE GOOD FAITH PARTICIPATION An Untenable Position? Confidentiality is a foundational characteristic of the mediation process, a key feature that distinguishes mediation from litigation. However, the veil of confidentiality has been lifted for several purposes, including the courts' assessment of the parties' conduct so as to ensure good faith participation in the mediation. This article discusses how mediation confidentiality and good faith participation may be concurrently promoted. It reviews the current approaches to upholding the general confidentiality and inadmissibility of mediation communications, and proposes ways to ensure that the veil of mediation confidentiality is pierced in highly circumscribed circumstances. It then examines the issue of whether to mandate good faith participation in mediation. This author proposes the articulation of a good faith obligation in order to send the correct signal about the expected conduct within
• SOME CURRENT ISSUES IN SINGAPORE CORPORATE LAW* As a leading commercial and financial centre, it is unsurprising that there should be a regular stream of corporate law cases that reach the Singapore courts. This has led to a rich jurisprudence in the field of company law. At the same time, and understandably, the cases have also given rise to unresolved issues, and on occasion conclusions have been arrived at that have resulted in the creation of new problems. This article will attempt to highlight some of the more current (beginning from 2010) issues of difficulty and contention. At the same time, possible solutions will be suggested.
• TEN TRENDS IN INTERNATIONAL MEDIATION In this article, the author offers an international overview of mediation developments in the 21st century and identifies contemporary influences such as artificial intelligence and third-party funding. With a focus on mediation of cross-border disputes, the author identifies ten trends in international mediation. These include the changing profile of cross-border disputants and corresponding developments in international mediation practice and law. The role of mediators and lawyers is analysed in the context of the professionalisation of the field through credentialling initiatives and the new specialisation of mediation advocacy. With the growing internationalisation of mediation, there has been greater appreciation of diverse practice models and the cultural assumptions underpinning them. These developments are explored along with the increasing and differentiated use of mediation in mixed mode procedures and a consideration of how technology is challenging conven
• THE EVOLUTION OF THE SINGAPORE CRIMINAL JUSTICE PROCESS This article analyses the Singapore criminal justice process in the context of Herbert Packer's Crime Control and Due Process models. It begins by analysing the features and goals of the two models before applying them to recent changes and developments in the Singapore criminal justice system. The article will focus in particular on developments in societal attitudes and values, legislative and executive policy, detention without trial, amendments to the Criminal Procedure Code (Cap 68, 2012 Rev Ed), the statement of facts in guilty-plea cases, Kadar disclosure and the judicial discretion to exclude evidence. Following an analysis of these developments, the article will then assess the change in balance between the two models in the Singapore criminal justice system as well as comment on the trend and future of our criminal justice process.
• THE IDEALS IN THE PROPOSED RULES OF COURT This article offers a preliminary examination of “the Ideals” in the proposed Rules of Court which were submitted for public consultation towards the end of 2018. These Ideals introduce a new procedural culture by requiring the court, the parties and lawyers to adhere to set standards or criteria in the conduct of civil litigation.
• THE IMPACT OF BRAIN SCIENCE ON CONFLICT AND ITS RESOLUTION How does brain functioning get us into disagreement, conflict and dispute? Why do seemingly rational and logical solutions not always work in mediation, negotiation or conflict resolution more broadly? What are the most effective strategies for the practitioner to use in either settlement or resolution? How can brain science become our trusted friend?
• THROUGH THE LOOKING GLASS: AN INSIDER'S PERSPECTIVE INTO THE MAKING OF THE SINGAPORE CONVENTION ON MEDIATION A new multilateral convention, which provides a uniform and efficient framework for the enforcement of international settlement agreements resulting from mediation and for allowing parties to invoke such agreements, was concluded under the auspices of the United Nations organisation last year and will be opened for signature on 7 August 2019 in Singapore. The United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the “Singapore Convention on Mediation”, and its complementary Model Law, were the product of the work of UNCITRAL Working Group II (Dispute Settlement) after just six sessions. This article provides an insider's perspective into how this became possible. It surveys the context within which the Working Group undertook its mandate, examines the specific approach of the Working Group in carrying out its subject mandate, and traces the evolut
• TOWARDS A DIGITAL GOVERNMENT Reflections on Automated Decision-making and the Principles of Administrative Justice* Governments around the world are increasingly looking to utilise technology and automated systems in administrative decision-making. As Singapore undergoes its digital government transformation journey, automated decision-making may become an essential part of public service delivery in the near future. Such developments necessitate consideration of the interaction between automated decision-making and the principles of administrative justice. The first part of this article explains the types and benefits of automated decision-making systems. It then outlines the significant use cases by government agencies in Australia, Canada and the US, as well as the administrative law issues that these use cases illustrate. Drawing from these and other examples, the second part distils the key administrative law rules that may be infringed by the use of automated systems. The third part argues tha