No. 2022, January - March 2022

Index

• A TALE OF TWO CAPACITIES
• A TRAP FOR THE UNWARY: ENFORCING WRITS OF SEIZURE AND SALE AGAINST JOINT TENANCIES
• Book Review
• Case Note
• Case Note
• DISCLOSURE IN CRIMINAL PROCEEDINGS: DEVELOPMENTS AND ISSUES AHEAD
• LEADING THE WAY FOR THE RECOGNITION AND ENFORCEMENT OF INTERNATIONAL MEDIATED SETTLEMENT AGREEMENTS
• NON-DETERMINISTIC ARTIFICIAL INTELLIGENCE SYSTEMS AND THE FUTURE OF THE LAW ON UNILATERAL MISTAKES IN SINGAPORE
• RIGHTISM, REASONABLENESS AND REVIEW: SECTION 377A OF THE PENAL CODE AND THE QUESTION OF EQUALITY – PART ONE
• THE EXPERT AND THE HEARSAY RULE
• A TALE OF TWO CAPACITIES Assessing the Mental Capacity Act's Relevance in Proving Testamentary Capacity in Singapore “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness”, Charles Dickens' timeless words is an appropriate description of the ebbs and flows of one's testamentary capacity. In determining whether a testator has testamentary capacity, practitioners always relied on the unintuitive common law rules as stated in the locus classicus of Banks v Goodfellow (1870) LR 5 QB 549. However, the murky waters are even more unsettled with the introduction of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). This article considers the uneasy interaction between the old common law rules and the MCA, and proposes some changes for the law on testamentary capacity.
• A TRAP FOR THE UNWARY: ENFORCING WRITS OF SEIZURE AND SALE AGAINST JOINT TENANCIES Joint tenancies are a common method of holding properties in Singapore, and yet, the issue in relation to enforcing writs of seizure and sale against a judgment debtor who owns a property on a joint tenancy with another is fraught with great legal and procedural uncertainty. This paper seeks to cut through the thicket of confusion by unpacking the various legal and procedural difficulties surrounding enforcing a judgment via a writ of seizure and sale against a judgment debtor who owns property as a joint tenant with another. Specifically, this article seeks to offer solutions to the practical difficulties of registering a writ of seizure and sale, effecting a sale in the face of a prior mortgagee's objection and the issue of priorities in relation to the surplus of the sale proceeds.
• ALGORITHMIC FAIRNESS Challenges and Opportunities for Artificial Intelligence Governance Across the world, artificial intelligence (“AI”) is increasingly used to automate decision making for access to pivotal socio-economic opportunities such as university applications and credit ratings. Given recent high-profile examples of algorithmic bias in those areas, it is timely to consider what it means for AI to be fair and how to achieve that. This article spotlights the growing field of algorithmic fairness, which seeks to directly incorporate fairness into AI algorithms, and identifies two key findings that have significant implications on AI governance. The authors also examine whether existing legal and regulatory frameworks in Singapore, the EU, the US and China can adequately regulate AI decision making, especially in light of the two important findings. The article concludes with several recommendations for how the algorithmic fairness field can further contribute to the ongoing development of AI governan
• ARTIFICIAL INTELLIGENCE AND DATA GOVERNANCE A Business and Human Rights Approach This article applies a business and human rights approach to systemic human rights concerns arising from the emergence of artificial intelligence (“AI”) and the data economy. It assesses the ability of the business and human rights framework — based on the State's duty to protect human rights, businesses' responsibility to respect and right to remedy — to address and regulate the data-driven business model rather than specific business-related violations of human rights law.
• Book Review SPIDER WOMAN: A LIFE1 by Lady Hale
• Case Note THE QUINTET OF CASES ON BREACHES OF FIDUCIARY DUTIES, CAUSATION AND ABUSE OF PROCESS Clarifications from the Court of Appeal in Beyonics Asia Pacific Ltd v Goh Chan Peng [2021] SGCA(I) 2 This case note discusses the decision of the Court of Appeal in Beyonics Asia Pacific Ltd v Goh Chan Peng [2021] SGCA(I) 2, which arose after a quintet of cases between a company and its former director for breach of his fiduciary duties. The decision also demonstrates an application of the current test for causation where breaches of fiduciary duties are concerned, a test first adopted by the Court of Appeal in Sim Poh Ping v Winsta Holding Pte Ltd [2020] 1 SLR 1199. This note also explores the effects of the Court of Appeal's decisions on issues which are vital to companies, such as the doctrine of separate legal entity for subsidiary companies, the doctrine of res judicata and judicial treatment of the single economic entity concept in Singapore.
• Case Note WITNESS-GATING IN INTERNATIONAL COMMERCIAL ARBITRATION Can I Get a Witness? CBS v CBP [2021] 1 SLR 935 In CBS v CBP [2021] 1 SLR 935, the Singapore Court of Appeal considered whether an arbitrator could prohibit a party from calling oral evidence from any fact witnesses. The bounds of tribunal power to exclude or limit witness testimony is largely unexplored. Taking the case as a starting point, this case note identifies a diversity of witness-gating powers which can be exercised in several ways. Crucially, in Singapore, the existence and permissible exercise of a witness-gating power depends on the specific arbitral rules, national legislation and, potentially, party agreement. Understanding a tribunal's precise power to gate witness testimony is needed to reduce inefficiencies arising from due process paranoia while upholding natural justice and to prevent misinformed challenges to awards.
• CROSS-BORDER PLATFORM MERGERS IN ASEAN'S DIGITAL MARKET Mergers involving online platform companies may generate innovation and consumer welfare. However, platform mergers raise concerns about the increasing market power of the merged platforms resulting from network effects and big data, particularly when these mergers take place in multiple jurisdictions. This article examines how cross-border mergers in ASEAN's digital market should be assessed. The 2018 Grab–Uber merger in several ASEAN Member States (“AMSs”) is discussed to analyse merger control regulations in AMSs that reviewed the Grab–Uber merger differently. This article argues that ASEAN's merger control regulations need to be harmonised.
• DEBATING THE RIGHT TO EXPLANATION An Autonomy-based Analytical Framework A most controversial legal tool featured in Europe's General Data Protection Regulation (“GDPR”), the right to explanation (“RTE”), has sparked broad public attention and heated academic debate. Despite controversies and scepticism about its conceptual clarity and practical enforceability, however, the RTE is widely recognised as a promising regulatory instrument that could be utilised to redistribute resources and responsibilities among the main stakeholders of the automated decision making process. Moreover, it holds great promise for empowering data subjects who suffer from information asymmetry and opacity and provides a powerful counterweight to the increasing prevalence of automated decision making in our digitalised everyday life. This article explores the controversies in RTE-related GDPR texts and other related legal instruments. It explores and analyses five aspects of complex issues that shape the RTE's scope, degree, qualit
• DISCLOSURE IN CRIMINAL PROCEEDINGS: DEVELOPMENTS AND ISSUES AHEAD The last decade or so witnessed very significant changes to the disclosure regime for criminal proceedings in Singapore. These came mainly in the form of the enactment of the current Criminal Procedure Code, as well as the landmark cases of Muhammad bin Kadar v Public Prosecutor [2011] 3 SLR 1205 and Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] 1 SLR 984. This article surveys all relevant developments since the enactment of the Criminal Procedure Code and considers some of the issues that may lie ahead, such as whether unused statements of the accused should be disclosed, whether statements of witnesses called by the Prosecution should be disclosed, and how admissibility and privilege feature. This article also briefly examines developments in several major common law jurisdictions regarding criminal disclosure as well as wider trends in our criminal justice landscape. It observes that although certain crime control elements re
• INTRODUCTION1
• LEADING THE WAY FOR THE RECOGNITION AND ENFORCEMENT OF INTERNATIONAL MEDIATED SETTLEMENT AGREEMENTS The Singapore Convention on Mediation Act 2020 On 4 February 2020, the Singapore Parliament passed the Singapore Convention on Mediation Bill (Bill 5 of 2020). The enactment of the Singapore Convention on Mediation Act 2020 (Act 4 of 2020) (“SCMA”) implements Singapore's obligations under the Singapore Convention on Mediation. The Singapore Convention on Mediation has since entered into force on 12 September 2020. This article examines the provisions of the SCMA and shows how the Act gives effect to the Singapore Convention. It then sets out the new regulatory landscape for the recognition and enforcement of international mediated settlement agreements in Singapore, which comprises the common law, court-referred mediation practice, the Mediation Act 2017 (Act 1 of 2017) and the SCMA, and offers some comparative comments.
• MIND THE GAPS Assessing and Enhancing the Trustworthiness of Mental Health Apps Mental health apps including artificial intelligence (“AI”)—powered apps and chatbots have raised serious concerns relating to safety, efficacy and privacy. This article assesses their trustworthiness based on lego-regulatory, ethical and technological measures in addressing the abovementioned concerns. Focusing on applications to mental health apps, it examines Singapore laws, regulations and guidelines relating to software-based and AI medical devices, data protection, consumer protection, advertising and medical negligence. Additionally, upon taking into account other non-binding ethical guidelines, certification standards and technological measures targeted at app developers, a few recommendations are offered for enhancing trust in mental health apps.
• NON-DETERMINISTIC ARTIFICIAL INTELLIGENCE SYSTEMS AND THE FUTURE OF THE LAW ON UNILATERAL MISTAKES IN SINGAPORE Non-deterministic artificial intelligence (“AI”) systems are black boxes — their programmers lack control and foresight over the AI's outputs. Under the doctrine of unilateral mistakes, the black box problem renders it impracticable to prove that the non-mistaken party (“NMP”) who contracts via a non-deterministic AI knew of the relevant mistake. Looking ahead, Parliament should legislate that where the NMP issued the disputed offer through a non-deterministic AI, the contract is voidable if a reasonable person should have known of the mistake at the time of the actual trade. Among other benefits, this rule prevents black box AIs from being abused to circumvent the law on unilateral mistakes and more fairly allocates risk between the NMP and his or her counterparty. The black box problem also means that the unconscionability which grounds equity's jurisdiction in equitable unilateral mistakes w
• REGULATING DISINFORMATION ON SOCIAL MEDIA PLATFORMS A Defence of the Meta-regulatory Framework Disinformation on social media platforms has become a serious problem in recent years. This article argues that due to addictive design and the gatekeeping power of social media companies, self-regulation is ineffective because it usually devolves into either over-regulation or reluctant regulation. The former is the practice of overblocking, removing all suspicious content with no concern for user rights, while the latter denotes the unwillingness to regulate false content in order to profit from higher user involvement. This article argues that governments can enforce the regulation of disinformation effectively without falling into the trap of over-regulation under a meta-regulatory framework. Meta-regulation has two policy objectives: one is to enforce platforms to regulate disinformation effectively, and the other is to prevent platforms from over-regulating user speech. When platforms regulate disinformati
• RIGHTISM, REASONABLENESS AND REVIEW: SECTION 377A OF THE PENAL CODE AND THE QUESTION OF EQUALITY – PART ONE This article examines Art 12 equality jurisprudence with specific reference to the case law and legal discourse over the constitutionality of s 377A of the Penal Code (Cap 224, 2008 Rev Ed), which is paradigmatic, in terms of attracting legal and political controversy. How the multi-vocal concept of equality is interpreted, implicates interpretive method, rights adjudication and the appropriateness of a “moral questions” doctrine in advocating modest, calibrated judicial review in addressing morally controversial questions. In Singapore, the prevailing “reasonable classification” test and the accompanying presumption of constitutionality of legislation has attracted two primary criticisms. First, that it has been misapplied; second, that the test itself is too deferential in according primary weight to the “reasonableness” of Parliament and should be replaced by a more robust test of judicial scrut
• THE EXPERT AND THE HEARSAY RULE Recent Developments and Proposals for Updating the Evidence Act The case law raises controversy about the application of the hearsay rule to factual information relied upon by the expert witness in reaching his opinion. In a recent case, three judges of the Singapore International Commercial Court disagreed on this very issue.1 The purpose of this article is to examine the rules of evidence in this area (including the positions taken in various cases decided at home and abroad) and to explain their operation. Proposals for the reform of the Evidence Act (Cap 97, 1997 Rev Ed) will be made in the interest of clarifying the law.