Singapore Academy of Law Journal - AZ
- SINGAPORE PROPERTY TAX LAW AS IT STANDS
- MORALLY BLAMELESS WRONGDOERS AND THE CHANGE OF POSITION DEFENCE
- NAVIGATING THE MAZE *
- THE COURT'S DISCRETION TO EXCLUDE EVIDENCE IN CIVIL CASES AND EMERGING IMPLICATIONS IN THE CRIMINAL SPHERE
- TEN TRENDS IN INTERNATIONAL MEDIATION
- DATA PROTECTION IMPLICATIONS OF MODERN EMPLOYEE MONITORING SOFTWARE A wide array of employee monitoring software products has emerged on the market. Employee monitoring software may enable employers to manage their employees more efficiently, and to protect their organisational and business interests more effectively. However, the use of employee monitoring software presents novel data protection issues, which must be addressed in order to secure employees' right to data protection, and avoid breaches of data protection law by employers. This article examines the capabilities of modern employee monitoring software available on the market, and highlights the various data protection issues that may arise from the use of such software. It will also discuss the use of employee monitoring software from a broader policy perspective.
- 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
- 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
- BASIC STRUCTURE AND SUPREMACY OF THE SINGAPORE CONSTITUTION
- DISCOVERING THE RIGHT TO CRIMINAL DISCLOSURE
- PIERCING THE VEIL OF CONFIDENTIALITY IN MEDIATION TO ENSURE GOOD FAITH PARTICIPATION
- PRIVATE AND COMMON PROPERTY RIGHTS IN PERSONAL DATA
- 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.
- 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?
- THE RULES OF COURT 2021: PERSPECTIVES FROM THE BAR More than two years have passed since the Rules of Court 2021 (“ROC 2021”) came into effect. The new ROC 2021 promises modernisation, enhanced speed and efficiency of adjudication, as well as procedural fairness, and has brought about significant changes in the civil litigation process. Through the lenses of efficiency, fairness to litigants, and judicial control, this article aims to provide a practitioner's perspective on select areas of the ROC 2021 through a comparative analysis with its predecessor regime, the Rules of Court (2014 Rev Ed).
- THE DATA PROTECTION PARADIGM for THE TORT OF PRIVACY IN THE AGE OF BIG DATA
- EXPERT EVIDENCE AND ADVERSARIAL COMPROMISE
- STATUTORY DAMAGES FOR USE OF A “COUNTERFEIT TRADE MARK” AND FOR COPYRIGHT INFRINGEMENT IN SINGAPORE
- THE USE AND ABUSE OF ANTI-ARBITRATION INJUNCTIONS
- THE PROTECTION FROM HARASSMENT ACT 2014
- FULFILLING THE DUTY OF FULL AND FRANK DISCLOSURE IN ARREST OF SHIPS
- CORPORATE CRIMINAL LIABILITY AND SECTION 17A OF THE MALAYSIAN ANTI-CORRUPTION COMMISSION ACT
- THE CASE FOR LEGISLATING HARASSMENT IN SINGAPORE
- FAMILY JUSTICE COURTS – INNOVATIONS, INITIATIVES AND PROGRAMMES
- UNAUTHORISED FIDUCIARY GAINS AND THE CONSTRUCTIVE TRUST
- Michael BRYAN* MA, BCL (Oxford), PhD (London). Emeritus Professor of Law, University of Melbourne.
- CORPORAL PUNISHMENT OF CHILDREN BY PARENTS Is It Discipline or Violence and Abuse?
- LAW FIRM DISCIPLINE IN SINGAPORE
- THE ENFORCEABILITY OF ALTERNATIVE DISPUTE RESOLUTION AGREEMENTS
- AN ANALYSIS OF SUBSTANTIVE REVIEW IN SINGAPOREAN ADMINISTRATIVE LAW
- PROBLEMS IN THE RECOGNITION AND ENFORCEMENT OF US CLASS ACTION JUDGMENTS IN SINGAPORE
- 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.
- THE USE OF EXPERTS IN LEGAL PROCEEDINGS IN SINGAPORE INVOLVING INTELLECTUAL PROPERTY RIGHTS
- FATE OF TRUST AND CONFIDENCE IN EMPLOYMENT CONTRACTS
- EQUITY AND OPPORTUNISM IN THE LAW OF CONTRACT:
- JUDGING BETWEEN CONFLICTING EXPERT EVIDENCE
- WEATHERING THE EVOLVING LANDSCAPES OF ELECTRONIC DISCOVERY
- Lecture JONES DAY PROFESSORSHIP OF COMMERCIAL LAW LECTURE 2019 – “THE STATE OF ILLEGALITY”
- SUBSTITUTIVE DAMAGES AND MITIGATION IN CONTRACT LAW
- CONTEMPT ORDERS AND JUDICIAL “ATTACHMENT” OF EQUITABLE PROPERTY
- TAKING STOCK OF THE CHANGE OF POSITION DEFENCE
- LEGAL CONSTRAINTS TO TOTAL RETURN INVESTMENT BY TRUSTEES
- DISCLOSURE OF THE COMPANY'S PRIVILEGED DOCUMENTS TO SHAREHOLDERS AS AN APPLICATION OF JOINT INTEREST PRIVILEGE
- THE APPLICABILITY OF PROPORTIONALITY IN FOREIGN ILLEGALITY DISPUTES The conflict of laws rules on foreign illegality are well established but mired in doctrinal controversy. This article is concerned with the rule in Foster v Driscoll [1929] 1 KB 470 (“Foster v Driscoll”) and the rule in Ralli Brothers v Compañia Naviera Sota y Aznar [1920] 2 KB 287 (“Ralli Brothers”). These rules are conceptually distinct from the domestic illegality framework outlined in Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (“Ochroid Trading”) and Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (“Ting Siew May”). As a matter of Singapore law, this article argues that the proportionality test in Ting Siew May and Ochroid Trading should be applied to determine whether the rule in Foster v Driscoll is engaged to render the contract unenforceable. However, the principle of proportionality has no role to play for cases falling within the rule in Ralli Brothers, which this article argues is properly understood as an application of
- 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
- 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.
- SEXUAL GROOMING AS AN OFFENCE IN SINGAPORE
- THE GRANTING OF MAREVA INJUNCTIONS IN SUPPORT OF FOREIGN COURT PROCEEDINGS
- ASSESSMENT OF DAMAGES IN INTELLECTUAL PROPERTY CASES
- GOOD FAITH INTERMEDIATION IN THE LAW OF CONVERSION
- REPUTATION AND DEFAMATORY MEANING ON THE INTERNET
- A TRAP FOR THE UNWARY: ENFORCING WRITS OF SEIZURE AND SALE AGAINST JOINT TENANCIES
- THE TORRENS SYSTEM UNDER THE LAND TITLES ACT
- 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
- THE LAW GOVERNING INTERNATIONAL ARBITRATION AGREEMENTS: AN INTERNATIONAL PERSPECTIVE*
- UNJUST ENRICHMENT, PROPRIETARY SUBROGATION AND UNSATISFACTORY EXPLANATIONS
- THE LAW GOVERNING ARBITRATION AGREEMENTS: BCY V BCZ AND BEYOND
- 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
- REVISITING THE LAW OF CONFIDENCE IN SINGAPORE AND A PROPOSAL FOR A NEW TORT OF MISUSE OF PRIVATE INFORMATION
- CURING NON-COMPLIANCE WITH FOREIGN LAWS IN THE CONTEXT OF SERVICE OUT OF JURISDICTION
- MONEY LAUNDERING OFFENCES UNDER THE
- Case Note THE DOCTRINE OF WILFUL BLINDNESS IN DRUG OFFENCES
- DATA PROTECTION IMPLICATIONS OF MODERN EMPLOYEE MONITORING SOFTWARE
- DEFENSIBILITY: CHANGING THE WAY ORGANISATIONS APPROACH CYBERSECURITY AND DATA PRIVACY The nature and number of online threats faced by organisations have increased to the point where a data breach or cybersecurity incident is inevitable despite an explosion in the number of cybersecurity and data privacy tools on the market today. This article analyses shortcomings in traditional approaches to cybersecurity and data privacy by first examining current laws, rules and regulations across the globe, and second by way of example, through the lens of a recent, major cybersecurity incident. Next, this article proposes an alternative comprehensive approach that focuses on creating defensible cybersecurity and data privacy programmes for organisations through enterprise risk management. The enterprise risk management approach addresses a wide range of risks, including information security and legal risks. This article also explores how a comprehensive enterprise risk management strategy, which includes careful ri
- 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.
- 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.
- CURIAL DEFERENCE IN SINGAPORE PUBLIC LAW
- FROM SUBSTANTIVE LAW TOWARDS FAMILY JUSTICE
- A TALE OF TWO CAPACITIES
- 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.
- BREACH OF AGREEMENT VERSUS VEXATIOUS, OPPRESSIVE AND UNCONSCIONABLE CONDUCT
- CHOOSING THE LAW OR RULES OF LAW TO GOVERN THE SUBSTANTIVE RIGHTS OF THE PARTIES
- THE RESPONSIBILITIES OF LAWYERS for THEIR CLIENTS' MISSTATEMENTS AND OMISSIONS TO THE SECURITIES MARKET IN SINGAPORE
- THE DEVELOPMENT OF SINGAPORE LAW: A BICENTENNIAL RETROSPECTIVE 1
- DOES JUDICIAL MANAGEMENT IN MALAYSIA SUFFICIENTLY EMBODY A RESCUE CULTURE?
- THE ARBITRATION AND LITIGATION OF MINORITY SHAREHOLDER DISPUTES
- DEFENSIBILITY: CHANGING THE WAY ORGANISATIONS APPROACH CYBERSECURITY AND DATA PRIVACY
- JUDICIAL DEVELOPMENTS IN ETHICAL LAWYERING IN SINGAPORE
- “ALL POWER HAS LEGAL LIMITS”
- 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
- DISCLOSURE OF THE COMPANY'S PRIVILEGED DOCUMENTS TO SHAREHOLDERS AS AN APPLICATION OF JOINT INTEREST PRIVILEGE
- REVERSE OPPRESSION AND THE RESIDUAL NATURE OF THE SHAREHOLDER'S COMMERCIAL UNFAIRNESS REMEDY
- THE DEPUTYSHIP REGIME UNDER SINGAPORE'S MENTAL CAPACITY ACT: AN INTRODUCTION
- SOME CURRENT ISSUES IN SINGAPORE CORPORATE LAW
- FACTUAL WITNESS EVIDENCE IN MODERN CIVIL LITIGATION Factual witness evidence has traditionally been treated as a lifeblood in the common law courts' endeavour of truth-seeking. The enactment of the domestic Rules of Court 2021 and the Singapore International Commercial Court Rules 2021 introduced significant new features to regulate and manage factual witness evidence in court proceedings. This article addresses select topics that are now central to the presentation of witness evidence in modern civil litigation, namely the issues of content, veracity, timing and control.
- CUSTODY ISSUES – DIFFERENCES AND SIMILARITIES BETWEEN CIVIL AND SYARIAH COURTS IN SINGAPORE
- THE NEW ERA OF CORPORATE VEIL-PIERCING
- 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
- NAVIGATING THE MINEFIELD OF EQUITY RELEASE PRODUCTS FOR ELDERS
- ILLEGALLY OBTAINED EVIDENCE IN INTERNATIONAL ARBITRATION
- 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.
- JUDICIAL DECISION-MAKING AND EXPLAINABLE ARTIFICIAL INTELLIGENCE A Reckoning from First Principles In light of rapid developments in legal technology, it is timely to begin considering whether, and if so how, artificial intelligence (“AI”) can replace judges. However, given that law plays a crucial role in maintaining societal order, that judges are a crucial part of ensuring the continued well-functioning of the law, and also that there are still many unknowns in the use and deployment of AI, it would be prudent to examine and understand exactly what roles judges play in the legal system, and how they do so, before we make any bold steps towards replacing judges with AI. This article examines the current and reasonably foreseeable state of AI to consider its capabilities, as well as the process by which judges make decisions and the duties they are subject to. This article will then consider whether or how AI, given its current and foreseeable state of development, may be used in judicial decision-
- RATIONALISING AND SIMPLIFYING THE PRESUMPTION OF SIMILARITY OF LAWS
- LEGAL AND REGULATORY INTERVENTION IN THE CRYPTOCURRENCY SPACE
- LEGAL AND REGULATORY INTERVENTION IN THE CRYPTOCURRENCY SPACE An Impossible Task? It is often alleged that cryptocurrencies are “trustless”, “immutable” and “decentralised” and that these traits not only make them “self-regulating”, but also render legal and regulatory intervention in the cryptocurrency space impossible. The accuracy of such allegations is questionable. A closer examination of the mechanics behind several cryptocurrencies reveals that, while some cryptocurrencies display degrees of the aforementioned traits, cryptocurrencies are not completely “trustless”, “immutable” or “decentralised” in every case. Furthermore, with reference to incidents like the 2016 hack of “The DAO”, it will be shown that the degree of “immutability” possessed by some cryptocurrencies does not enable them to be “self-regulating”, in the sense that they are able to police themselves against illegal conduct which may otherwise occur on such networks. Finally, it will be demonstrated that while the degrees of “t
- THE (QUISTCLOSE) RESULTING TRUST AS A PROPRIETARY RESPONSE TO UNJUST ENRICHMENT
- SHIFTING PARADIGM OF INVESTMENT BY CHARITIES
- THE CASE FOR DEPARTING FROM THE EXCLUSIONARY RULE AGAINST PRIOR NEGOTIATIONS IN THE INTERPRETATION OF CONTRACTS IN SINGAPORE
- PROSECUTORIAL DISCRETION AND THE LEGAL LIMITS IN SINGAPORE
- ADMISSIBILITY AND THE DISCRETION TO EXCLUDE EVIDENCE