No. 2023, January 2023

Index

• A GOLDEN THREAD ON THE RED DOT Modified Universalism and the Law on Cross-border Insolvency in Singapore “Everything has its limit — iron ore cannot be educated into gold”. Mark Twain's words are an apt description of the court's powers in facilitating cross-border insolvency. However, that “golden thread” of modified universalism has lost its lustre in the UK ever since the Supreme Court's controversial decision in Rubin v Eurofinance SA [2013] 1 AC 236. In Singapore, the thread continues to flourish, and the potential for its development may well be limitless. This article surveys the existing case law in Singapore and considers the common law's role in the brave new world of cross-border insolvencies.
• AUTOCHTHONY AND CONFORMITY IN SINGAPORE ADMINISTRATIVE LAW Administrative law is a field of law in which sensitivity to local context, institutional peculiarities and socio-political values are critical to its functionalism within the modern administrative state. The key question which this article seeks to answer is: to what extent have the Singapore courts developed an autochthonous administrative law jurisprudence to date vis-à-vis the English courts? The answer, it is found, lies in the engagement of English jurisprudence on two important aspects of administrative review — the scope of review and doctrine of substantive legitimate expectations — as well as the development of unique features in the Singapore administrative review landscape.
• Book Review FACT-FINDING AND REALITY: A JUDICIAL DECISION-MAKING PRIMER1 by See Kee Oon2
• Book Review LYE LIN HENG'S LANDLORD AND TENANT LAW IN SINGAPORE1 by Lye Lin Heng, Koh Swee Yen & Elaine Chew
• Book Review SINGAPORE TRUSTS LAW1 by Christopher Hare and Vincent Ooi
• Book Review THE COURAGE OF COMPASSION: A JOURNEY FROM JUDGMENT TO CONNECTION1 by Robin Steinberg
• Case Comment NON-INSANE AUTOMATISM AND THE SINGAPORE PENAL CODE Public Prosecutor v Ong Jun Yong [2022] SGMC 37 Decisions from the lowest tier of the judicial hierarchy are normally ignored because they do not have precedential value. However, the case of Public Prosecutor v Ong Jun Yong [2022] SGMC 37 should be studied closely as this is the first time that the concept of automatism (ie, involuntariness) in general, and non-insane automatism in particular, have been analysed by the Singapore Judiciary in a criminal case. This comment argues that there is a need for intervention by the Legislature to clarify if non-insane automatism is in fact recognised in Singapore's criminal law and if so, what its precise parameters are.
• Case Note A SHIFTING BREACH OF CONFIDENCE ACTION IN SINGAPORE Lim Oon Kuin v Rajah & Tann Singapore LLP [2022] 2 SLR 280 In Lim Oon Kuin v Rajah & Tann Singapore LLP [2022] 2 SLR 280, the Singapore Court of Appeal clarified that its previous decision in I-Admin (Singapore) Pte Ltd v Hong Ying Ting [2020] 1 SLR 1130 was not meant to be a massive rehaul of the breach of confidence action in Singapore. This case note raises some interesting questions that may require clarification in a future decision. In particular, it will be argued that the effect of Lim Oon Kuin v Rajah & Tann LLP is that there are now three formulations of the breach of confidence action in Singapore, and some solutions to these unanswered questions will be proffered.
• Case Note RECONSIDERING THE IMPOSITION OF DUAL VICARIOUS LIABILITY IN THE BORROWED EMPLOYEE CONTEXT The Singapore Approach in Munshi Mohammad Faiz v Interpro Construction Pte Ltd [2021] 4 SLR 1371 and Hwa Aik Engineering Pte Ltd v Munshi Mohammad [2021] 1 SLR 1288 The limits of the law on dual vicarious liability were recently tested in the decisions of Munshi Mohammad Faiz v Interpro Construction Pte Ltd [2021] 4 SLR 1371 and Hwa Aik Engineering Pte Ltd v Munshi Mohammad [2021] 1 SLR 1288, both before the General and Appellate divisions of the High Court. Against the backdrop of these decisions, this case note argues that the approach laid down by the High Court may go some ways in resolving the tension and assist in settling the perennial question of the role of control in dual vicarious liability. In particular, it is argued that control should be the main factor in guiding the court's determination, and a framework is proposed to provide a clearer and more practical approach. This case note also consid
• Case Note THE NEW SYSTEM OF CIVIL APPEALS What “Constitutional or Administrative Law” Is; Whether to Appeal to the Appellate Division or the Court of Appeal; and Proposals for Broader Reform Tan Beng Hui Carolyn v Law Society of Singapore [2023] SGCA 7 An application was made under s 95 of the Legal Profession Act to set aside a penalty imposed by the Council of the Law Society. The Court of Appeal held that an appeal lay to the Appellate Division of the High Court, and not the Court of Appeal, because this was not a “case relating to constitutional or administrative law”. The reasoning is problematic: it relied on an overly narrow conception of “public powers”, conflated judicial review with administrative law more broadly, erroneously considered the merits of the application as relevant to the “which court” question, and overlooked the similarities between the present application and a typical application for judicial review. This note proposes a more detailed definition of “constitutional or administra
• Case Note TRUST AND CONFIDENCE IN EMPLOYMENT CONTRACTS Fact or Myth? Dong Wei v Shell Eastern Trading (Pte) Ltd [2022] 1 SLR 1318 At common law, the implied duty of mutual trust and confidence has been thought to apply to all employment contracts. The implied duty has been rejected in Australia but continues to be applied in the UK, Hong Kong and, until recently, has been thought to apply in Singapore. In Dong Wei v Shell Eastern Trading (Pte) Ltd [2022] 1 SLR 1318, the Appellate Division of the High Court cast doubt on the existence of the implied duty under Singapore law. This case note discusses the court's reasoning and arguments for and against the implied duty.
• Case Note CROSS-BORDER REIT “INSOLVENCIES” AND RECOGNISING FOREIGN INSOLVENCY-RELATED JUDGMENTS IN SINGAPORE Re Tantleff, Alan [2022] SGHC 147 In the important decision of Re Tantleff, Alan [2022] SGHC 147 (“Re Tantleff”), Aedit Abdullah J declined to recognise the US restructuring of a Singapore-listed real estate investment trust (“REIT”) under the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency as enacted in Singapore (the “Singapore Model Law”). No Singapore court has considered these issues before. Abdullah J commented, without deciding, that common law recognition might be possible instead. This article unpacks this comment and argues that such common law recognition is not possible. Re Tantleff also departs from Re Rooftop Group International Pte Ltd [2020] 4 SLR 680 and the UK Supreme Court's decision in Rubin v Eurofinance SA [2013] 1 AC 236, by ruling that the Singapore courts can recognise foreign insolvency-related judgments and possibly apply foreign in
• CLASSIFICATION OF UNDER-SECURED DEFICIENCY CLAIMS IN SCHEMES OF ARRANGEMENT Traditionally, for the purposes of voting in schemes of arrangement, secured creditors are classed separately from the ordinary unsecured creditors. However, a recent practice seems to have emerged in Singapore schemes of arrangement where under-secured creditors have, to the extent of their deficiency claims, been placed in the same voting class as the ordinary unsecured creditors. This article examines the case law and suggests guiding principles informing when such a form of classification may be appropriate.
• CROSS-CLASS CRAMDOWNS IN SINGAPORE AND LESSONS FROM THE UK In 2017, a cross-class cramdown mechanism was introduced into the Singapore framework for corporate rescues. The new mechanism allows the court to bind all creditors to a compromise, even if entire classes of creditors object. While available for years, there is still no reported judgment on the mechanism. This is in contrast to the burgeoning jurisprudence on the UK cross-class cramdown mechanism, which was introduced in 2020 under Pt 26A of the UK Companies Act 2006. In anticipation of the first Singapore judgment on this topic, this article analyses the substantive requirements and safeguards for a cross-class cramdown in Singapore, and attempts to draw some guidance from the latest UK decisions.
• HAVE SOME (GOOD) FAITH Why Singapore Should Imply a Duty of Good Faith into Relational Contracts In Singapore, collaborative contracting has been promoted to increase productivity in the construction industry. Collaborative contracting involves parties adopting contractual clauses that promote collaboration. Relatedly, “relational contracts” have been defined by courts in the UK as a form of contract that involves certain features, such as parties operating with high degrees of communication, co-operation and collaboration. Additionally, relational contracts generally involve ventures that occur over an extended period with the nature, roles and obligations of the parties not exhaustively specified in writing. Courts in the UK have demonstrated an increased willingness to imply a duty of good faith into these relational contracts, contrary to the general common law position. However, the position in Singapore is that there is no implied contractual duty of good faith, except in very narrow circumstances. Th
• INSOLVENCY SET-OFF IN JUDICIAL MANAGEMENT The Insolvency, Restructuring and Dissolution Act 2018 has extended the applicability of insolvency set-off to companies in judicial management. This presents an interesting issue as to how insolvency set-off operates when a company in judicial management transitions into winding up. This is an issue with practical consequences for insolvency practitioners and creditors alike. This article also examines the effect of judicial management on the crystallisation of floating charges, which impacts the mutuality required for insolvency set-off to operate.
• INSTRUMENTALITY AND THE SCOPE OF THE UNLAWFUL MEANS TORT More than a decade on from the landmark cases of the House of Lords in OBG Ltd v Allan [2008] AC 1 and Revenue and Customs Commissioners v Total Network SL [2008] AC 1174, the scope of the unlawful means tort in various jurisdictions, including Singapore, has remained undefined. This article advocates for a wider scope of “unlawful means” to include all criminal and civil wrongdoings against a third party under Singapore law. It further proposes a multi-factorial test to determine whether a particular act is instrumental in causing loss to the claimant. This test of instrumentality arguably acts as an appropriate control mechanism and yet is able to strike a good balance between the twin needs of freedom and fairness in economic competition.
• INTRODUCTION
• Legislation Comment SERVICE OUT UNDER THE NEW RULES OF COURT The new Rules of Court 2021 seek to provide a more accessible and efficient justice system. The extensiveness of the overhaul, however, brings with it as much unfamiliarity as excitement. This legislation comment examines the changes in the provisions governing service out of jurisdiction and argues that the textual changes also effect substantive changes to how the law is applied. This comment also explores the related issues on the grant of Mareva injunctions in aid of foreign proceedings under the new Rules of Court 2021.
• RECONCILING SINGAPORE'S AMBITIONS AS A DEBT RESTRUCTURING HUB AND AS A GLOBAL FINANCIAL CENTRE Singapore positions itself as a debt restructuring hub and as a global financial centre. While these two ambitions may appear to be at odds with each other, a closer look at the regulatory regimes and restructuring and insolvency regimes applicable to the financial sector and other critical services reveals that regulation and intervention are introduced along a spectrum, depending on the financial entity and contract in question. These regimes have been carefully calibrated to ensure that market participants continue to have the certainty they require, in order to do business in Singapore.
• RECOVERABILITY OF FOREIGN LAWYER COSTS IN THE SINGAPORE INTERNATIONAL COMMERCIAL COURT Parties in proceedings before the Singapore International Commercial Court (the “SICC”) may incur foreign lawyer costs, sometimes in addition to Singapore lawyer costs. In Kiri Industries Ltd v Senda International Capital Ltd [2022] 3 SLR 174, the SICC left open the question whether foreign lawyer costs are legally recoverable by a successful party who was represented by Singapore counsel in SICC proceedings. This article explores this and other issues in the SICC, having regard to the legislation, principles and policy applicable to SICC proceedings.
• REVISITING THE OUTCOME MATERIALITY PRINCIPLE IN CRIMINAL SENTENCING In recent years, the Singapore courts have increasingly justified that the outcome of an offender's criminal act must be taken into account in determining the appropriate severity of punishment to be imposed on an offender because “the outcome materiality principle trumps the control principle”. As explained in this article, the outcome materiality principle is predicated on the existence of resultant moral luck — viz, the extent of an offender's blameworthiness is affected by the outcome of his or her criminal act. However, there are two major difficulties with the courts' endorsement of resultant moral luck: (a) the courts have not offered any compelling reasons in favour of resultant moral luck; and (b) the courts have misapprehended the true nature of the outcome materiality principle, as well as the moral intuition that it articulates. Given these difficulties, it is respectfully contended that the courts should steer clear from the jus
• SHAREHOLDERS' PETITIONS IN SINGAPORE TO WIND UP A FOREIGN COMPANY ON THE JUST AND EQUITABLE GROUND: LESSONS FROM HONG KONG Under s 246(1) of the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed), shareholders may petition in Singapore to wind up a foreign company on the ground that it is just and equitable to do so. Against the backdrop of a dearth of Singapore and English case authorities, this article considers the Hong Kong cases in this area and the principles that may be derived therefrom should a similar petition be brought before the Singapore courts.
• SUBROGATION AND MARITIME CLAIMS This article discusses the scope of subrogation as it operates for maritime claims. There is hardly a claim that does not involve insurers as both hidden claimants (by way of subrogation) and hidden defendants (under liability covers). Typical claims include those by cargo owners or their banks against shipowners and charterers, collision actions and general average claims by shipowners against cargo owners or charterers. Shipowners are insured under hull and machinery policies for first party losses and, by protection and indemnity clubs, against liability for collision and cargo claims. Cargo owners are insured against loss of or damage to cargo and for general average contributions, lending banks are insured against mis-delivery and buyers are insured against trade debt defaults. However, the codified regime governing these relationships — s 79 of the Marine Insurance Act 1906 — is an incomplete and, in some circumstances, inaccurate statement of the law as it had developed
• THE APPROPRIATE REMEDY FOR BREACH OF CUSTODIAL FIDUCIARY DUTY The Case for Orthodoxy In 2020, the Court of Appeal set out a remedial classification of trustees' duties and provided definitive guidance on the remedial regime for the breach of non-custodial fiduciary duties. The appropriate remedial response to breaches of managerial stewardship duties is not controversial. On the other hand, the appropriate remedy for breach of custodial stewardship duties remains controversial in the Commonwealth with diverging authority and academic opinion. The position was further left open in Sim Poh Ping v Winsta Holding Pte Ltd [2020] 1 SLR 1199. This article argues that the orthodox approach of account and falsification should be preserved in Singapore law.
• THE DOCTRINE OF UNILATERAL SEVERANCE AND ITS POTENTIAL DEVELOPMENT IN SINGAPORE Co-ownership of land is commonplace in Singapore, and the manner of holding among co-owners has important practical implications. Joint tenants are subject to the rule of survivorship, but what if a joint tenant does not wish to be locked into the survivorship wheel of fortune? A joint tenant may unilaterally sever the joint tenancy by an act operating upon his or her share of the land, but questions remain as to when that occurs and the consequent duration of severance. This article attempts to address these questions with the current alienation-based approach and suggest the possibility of an intention-based approach.
• THE EVOLUTION OF CROSS-BORDER INSOLVENCY IN SINGAPORE The global financial crisis and economic crisis in the wake of COVID-19 have highlighted the need for co-operation between states in an economically interconnected world. Building on the concept of comity, the common law has developed to facilitate co-operation between countries but, through cases like Antony Gibbs & Sons v La Société Industrielle et Commerciale des Métaux (1890) LR 25 QBD 399, the common law in some jurisdictions has pushed back against this trend. As a regional financial centre, Singapore was a leader in developing a common law regime to recognise and assist foreign insolvency proceedings and became the second South-East Asian country to adopt the UNCITRAL Model Law in 2017. This article critically analyses the evolution of cross-border insolvency law in Singapore from the colonial era to the contemporary parallel common law and statutory regimes and the unique characteristics of Singapore schemes.
• THE SINGAPORE INTERNATIONAL COMMERCIAL COURT AND BEYOND: CHARTING THE NEXT FRONTIER FOR CROSS-BORDER INSOLVENCY This article outlines the growth of the Singapore International Commercial Court (“SICC”) as a forum of choice for debtors and creditors in international restructuring matters in the Asia-Pacific region. The authors also discuss the opportunities for greater convergence in procedural and substantive insolvency laws in the region in the future, via judicial diplomacy activities and the promotion of soft law frameworks such as the Asian Principles of Business Restructuring. This could lay the foundation for a future regional insolvency court, with the SICC ideally placed to function as the seat of that court.
• UNIVERSALISM ON THE ASCENT: SINGAPORE'S CROSS-BORDER INSOLVENCY JOURNEY Singapore has made tremendous strides in developing its debt restructuring and insolvency regime over the last decade. This article traces this development through the lens of its evolving approach towards the recognition and assistance of foreign cross-border debt restructuring and insolvency proceedings. In particular, the article analyses a selection of key milestones, which chart Singapore's move from territorialism towards an increasing emphasis on (modified) universalism and judicial co-operation and co-ordination.
• WHEN A HOUSE IS NOT THE (MATRIMONIAL) HOME The Division of Multigenerational Matrimonial Homes in Singapore The ways in which families organise their lives are neither uniform nor universal. The recent decisions of TQU v TQT [2020] SGCA 8 and VOD v VOC [2022] SGHC(A) 6 have demonstrated the difficulty in understanding the place of a multigenerational matrimonial home — a single property that is a matrimonial home to two different family nuclei. In this article, using Singapore as a case study, the author argues that a single property can be the matrimonial home for two different families and that a party's part-interest in the multigenerational matrimonial home should be included in the pool of matrimonial assets for division. The author further advances a novel argument that the classification methodology can be applied by the courts to take into account the ownership and residence of the other family in the multigenerational matrimonial home as a “clear reason to make a different calculation” for the mult