COMPARATIVE THEORY, JUDGES AND LEGAL TRANSPLANTS

• Citation: (2014) 26 SAcLJ 50
• Published date: 01 December 2014
• Date: 01 December 2014

A Practical Lesson from Singapore and its Relevance to Transnational Convergence

Legal evolution in a hyper-connected world will increasingly come through, or otherwise be informed by, legal borrowing and transplants from without whether in the form of laws, techniques, concepts or simple inspiration. The pressures of globalisation and the resulting need for some form of operational, transnational convergence and harmonisation will require diverse legal systems to seek out the best rules and approaches regardless of provenance to address the demands of the modern legal and commercial environment. Judges, particularly in common law jurisdictions, will be at the forefront of this process of transnational legal selection fraught with both promise and peril. A “judiciously ecumenical” approach will be required to ensure that the best approaches are adopted while preserving the existing systemic balance of the “recipient” system. Comparative theory has a role to play in enlightening policymakers as to how best to proceed before the fact or, alternatively, in defining and explaining the parameters of the process in a post hoc manner. One such case in Singapore, Sembcorp Marine Ltd v PPL Holdings Pte Ltd[2013] 4 SLR 193, provides a backdrop for examining the link between theory and practice.

I. Introduction — Theory meets practice

1 It is sometimes thought and, indeed, even taken as an article of faith that comparative law in many of its iterations is an interesting gadget, nice to know, but hardly indispensable to legal practice. This view is changing under the pressure of globalisation and the ever increasing legal and commercial proximity in which modern lawyers

operate, but scepticism remains. Even if comparative law may be relevant in some way, shape or form, how can it be rendered sufficiently coherent to be of practical use?

2 Within this ambient “ether” of doubt, promise and misconception, the concept of legal transplants has often come to the fore. It is here where one can observe the interaction of legal concepts and assess empirically the extent to which competing approaches are weighed, critiqued and sometimes adopted. Moreover, the issue of transplants also leads to focused discussions of what constitutes a successful transplant and, indeed, of those factors requiring consideration when engaging in such exercises.1

3 This discussion, too, can fall prey to an overly theoretical discourse, edifying for sure, but perhaps no more useful in practical terms than the critics of “comparative law” would have one believe. This commentary seeks to create an analytical nexus between theory and practice by highlighting some of the prevailing views and scholarship regarding transplants and then linking them to a recent judgment of the Singapore Court of Appeal, Sembcorp Marine Ltd v PPL Holdings Pte Ltd2 (“Sembcorp”), which more than any protestations of relevance or assertions to the contrary, validates the increasing importance of a comparative perspective in this ever-shrinking, albeit enduringly diverse, world.

4 To frame this short piece as a case study would be to overstate its ambitions. Rather it is offered as a practical tale on the importance of being “judiciously ecumenical” and “comparative” in the evolving international legal environment. Particularly in the commercial context, the hermetic effect of national borders is yielding to a more permeable membrane, which seeks to absorb useful concepts in a manner that facilitates the development of a common transnational grammar. This process is more subtle than that reflected in the adoption of overtly transnational instruments, such as the Vienna Convention for the International Sale of Goods3 (“CISG”) or the non-binding, private law UNIDROIT Principles.4 Rather, it is playing out in the courts, where real “cases and controversies” are mandating a search for the best solutions. Such an exercise is hardly alien to the common law method. The new

dimension, however, is that courts will incrementally, but unabashedly look for the best solutions even if they reside outside their national borders. Moreover, as the gatekeepers of such doctrinal change, they will also mark out in practical and legal terms the promise and the pitfalls of such an approach.

5 In a speech entitled “Transnational Commercial Law: Realities, Challenge and a Call for Meaningful Convergence” made at the 15th Biennial Conference of Chief Justices of Asia and the Pacific held in October 2013, Sundaresh Menon CJ outlines the judicial role in this complex process of legal borrowing and transnational harmonisation propelled by the growing velocity and intensity of cross-border trade and commerce.5 This commentary examines one such judicial exercise, involving the admissibility of extrinsic evidence in Singapore, Sembcorp, highlighted in the aforementioned speech and which in microcosm may in fact be a harbinger of the future.

II. Transplant theory — Culturists versus Transferists

6 Prior to turning to Sembcorp, however, it is necessary to sketch out some of the seminal literature concerning “legal transplants” in order to define the analytical matrix in which these exercises are playing out. It is customary to mention Montesquieu's “Spirit of the Laws”6 from 1748 as a starting point for one view of the transplant phenomenon subsequently defined as the culturist school. Montesquieu's oft-cited quotation holds that the geographical, cultural, climatic and environmental differences among countries would make it a huge coincidence (un grand hasard)7 if laws could be transplanted from one country to another. The thrust of this culturist school has been picked up by more modern theorists, such as Pierre Legrand, who tend to assert that true transplants are impossible.8 Such an approach may have to do as much with the notion of a transplant itself as with the idea of how to define success. Implicit in Legrand's culturist view is that for a transplant to be deemed successful, it must function in exactly the same manner in the recipient country as it did in the donor country.9 As there are invariably differences in legal infrastructure and habits, not to

mention legal and general culture, this criterion sets up a virtually unattainable threshold. It is in this interesting but somewhat dogmatic light that the modern culturist school can be understood.

7 In the opposite portico of the transplant edifice are the members of the transferist school led by Alan Watson, whose short tome entitled Legal Transplants: An Approach to Comparative Law10 and other related writings sparked the culturist-transferist debate that continues in varying forms to this day. The transferist school in its most pared down form holds that law is a largely elite, free-standing phenomenon which makes its transferability or transplantability far easier than the culturists would have one believe.11 Transferists point to the migration and implantation of the civil law and common law traditions across the world as empirical support for the transferist proposition. Watson, whose core expertise is in Roman law, points to the wide acceptance of the Corpus Juris Civilis throughout Europe, the so-called reception of Roman law, as one of the first but by no means last manifestations of the transplant phenomenon and the transferist thesis in action.12

8 Scholars who have analysed Watson's writings break them down into “strong Watson” and “weak Watson”, with the former postulating law as an entirely free-standing, culturally independent phenomenon and the other seeing the same as dominantly free-standing albeit with a cultural dimension.13 A number of scholars have tended to focus on weak Watson as the more reasonable and perhaps analytically robust of the two iterations, but common to both formulations is that a transplant and its related success must be evaluated and assessed with reference to the recipient country's legal context and needs.14 The test is not whether the proposed transplant functions in a manner identical to that observed in the donor country. The test is simply whether the transplanted concept, law or institution functions in a manner that is socially useful in the recipient country. By using the recipient country as the frame of reference, Watson short-circuits the cultural and culturist inquiry.

9 Essential to the competing culturist view is the idea that law is somehow the “mirror image” of society.15 Since no two societies are identical, it therefore becomes axiomatic that legal transplants are impossible. Watson's opposing view can be framed in one of two ways, each of which, if true, vitiates to some extent the culturist thesis: (a) Law is free-standing and can therefore be transplanted easily; or, and it is perhaps this one that resonates, (b) law is, indeed, or can become the mirror image of society, as the culturists assert, but the only mirror that counts is that of the recipient country. Stated less facetiously and more directly, law may have been borrowed, but if it blends into the societal fabric in a manner that yields social utility, then this constitutes a duly effected transplant without reference to any cultural dimension obtaining in the donor country. In a word, Watson largely strains the cultural dimension out of the mix by the manner in which he frames the question and sets the parameters for what constitutes a (successful) transplant.

10 Within this binary structure of the culturist and transferist schools, it is perhaps useful to examine certain intermediate positions that inform the transplant debate. Otto Kahn-Freund16 in a response to Watson postulates a continuum of law and legal concepts that may be easier or harder to transplant depending on how deeply rooted they may be in the donor's soil. Using the metaphor of a carburettor and a kidney, Kahn-Freund suggests that some transplants are more mechanical and therefore easier to effect than others, which may be more organic in...