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The Singapore Journal
of Legal Studies is the flagship law journal of the Faculty of Law, National University of Singapore and one of the oldest law journals in the Commonwealth. As the first and leading legal journal in Singapore, it contains a rich store of legal literature analysing the legal, political and social development of Singapore in its progression from a developing to a First World nation. The journal continues to advance the boundaries of global and local developments in law, policy and legal practice by publishing cogent and timely articles, legislation comments and case notes on a biannual basis.
Highlights of our December 2009 issue are …
Professor Tan Yock Lin, in
Construction of Commercial Contracts and Parol Evidence,
examines the theories of interpretation and pragmatics. He
argues that the rule-based model of construction is flawed,
and the judicial shift to commercial interpretation is
correct. In analyzing what the courts in fact do when they
construe commercial contracts, he provides several insights
such as the impossibility of limiting the content to any
given set of data and the assignment of meaning that accords
with the commercial purposes of the contract.
In Enforcing Corporate Disclosure,
Professor Hans Tjio proposes that private enforcement of
continuous disclosure rules in Singapore should supplement
public enforcement of such rules which presently constitutes
the primary means of enforcement. He examines the
legislative and judicial developments in the U.K. and
highlights several difficulties such as the
conceptualisation of shareholder losses. He observes however
that the Singapore courts have shown that it is possible to
treat corporate misstatements as a form of fraud against the
entity by adopting generous causation and remoteness rules
to measure the damages suffered by the corporation.
Professor Thio Li-ann, in Between
Eden and Armageddon: Navigating ‘Religion’ and ‘Politics’ in
Singapore, examines Singapore’s constitutional
arrangements concerning state-religion relations and the
regulation of internal and external dimensions of religious
freedom. She evaluates long-standing and newly emergent
threats to public order which parties could be
inter-religious or religious/irreligious. In particular, she
notes that the recent ‘AWARE controversy’ exemplifies a new
threat to social harmony where non-religious parties invoked
the spectre of a religion to cause disquiet among other
religious and secular groups. She concludes with
observations on the government’s recourse to soft guidelines
and regulatory methods, in navigating the domains of
‘religion’ and ‘politics’.
In Westminster Constitutions and
Implied Fundamental Rights: Excavating an Implicit
Constitutional Right to Vote, Professor Thio Li-ann
focuses on the conspicuous absence in the Singapore
Constitution of the right to vote, a right central in
sustaining a democratic order and upon which the realization
of other political liberties depend. The article explores
whether there are implied rights in the Singapore
Constitution, given express ministerial statements affirming
the constitutional status of an implied right to vote. By
drawing from the Australian experience in the judicial
derivation of an implied right to freedom of political
communication, Professor Thio considers whether it is
desirable to have an express constitutional right to vote,
what its content might be, and reflects on the Singapore
model of representative democracy and citizenship.
The Singapore Court of Appeal has recently raised the
spectre of replacing the doctrine of consideration with the
doctrines of economic duress, undue influence,
unconscionability and promissory estoppels. In
Consideration and Serious Intention,
Professor Mindy Chen-Wishart defends the importance of the
doctrine of consideration by arguing that the adequacy of
consideration is relevant to the enforceability of an
agreement, contract does not and should not, enforce all
seriously intended undertakings, and vitiating factors do
not interrogate the presence of contractual intention.
Dr. David Capper, in Common Mistake
in Contract Law, considers the effect of a
fundamental common mistake in contract formation. He notes
the enormous difficulty in differentiating a common mistake
renders a contract void, from a ‘mistake in equity’ which
could give an adversely affected party the right to rescind
the contract. Dr. Capper accepts that such difficulty
justifies the insistence by the English Court of Appeal that
there can be only one doctrine of common mistake - an
“all-or-nothing” approach, either the mistake is so
fundamental that it renders the contract void, or the
mistake is not serious enough to merit legal intervention.
He challenges this position by drawing on the experiences of
other jurisdictions in the Commonwealth and arguing that
courts should retain discretion to grant rescission of
contract in exceptional circumstances.
Professor George Wei discusses the need for greater
certainty of subject-matter in developing guiding principles
concerning intellectual property rights, in
Certainty of Subject-Matter in the
Development of Intellectual Property: “Please Sir, I Want
Some More”!. He briefly examines the need for
certainty of subject-matter in the context of registered
trademarks and patents before moving into a discussion of
copyright in detail, in particular, the position of names
and titles. In dealing with copyright, he argues that there
should be greater caution in the use of competition driven
mantra such as “reaping where you have not sown” when
developing property based rights and that courts should make
conscious attempts to apply the expression/idea or facts
dichotomy with greater clarity and rigour so that the
boundaries of copyright subject-matter can be clearly
demarcated.
Associate Professor Ng-Loy Wee Loon in
Trade Marks, Language and Culture: The
Concept of Distinctiveness and Publici Juris
explores the development of the concept of “distinctiveness”
in trade mark law through an analysis of common law
principles as well as statutory provisions establishing the
trade mark registration system in U.K. and Singapore. She
proposes a three-stage inquiry to establish
“distinctiveness” for the registration of a trade mark. She
argues that given the stronger links between trade marks,
languages, cultures and traditions in multi-racial
Singapore, the concept of publici juris should be more
rigorously enforced when interpreting the distinctiveness
criterion in Singapore’s trade mark law.
In Revisiting the General
Anti-Avoidance Rule in Singapore, Mr. Irving Aw
considers the judicial approach to the interpretation and
application of the general anti-avoidance rule (GARR) in
Singapore. He notes Parliament’s intention that local courts
be guided by the case law of Australia and New Zealand in
interpreting and applying the GAAR. He analyses the
divergent approaches of the courts in these two countries.
He observes that the Singapore High Court decision of UOL
Development (Novena) Pte. Ltd. v. Commissioner of Stamp
Duty, the first and only decision to date on the current
GAAR, does not authoritatively determine the preferred
approach. Mr. Aw concludes that the issue can only be
resolved based on the philosophical position of the
Singapore courts.
Assistant Professor Kelry Loi, in Mortgagees’ Duty of Care
in Singapore: Staying the Course, evaluates and rejects the
claim that mortgagees should owe mortgagors a general duty
of care whenever there is no conflict of interest between
them, in particular, whether the mortgagee owes a duty of
care to the mortgagor in deciding whether and when to sell
the mortgaged asset. He argues that no sufficient reason has
been put forth to justify departing from the existing law
that mortgagees do not owe mortgagors a general duty of care
apart from specific duties of care such as the duty to take
reasonable steps to obtain the market price when they
exercise their power of sale.
Mr. Edward Ti raises the possibility that the court may, in
rare instances, preclude enforcement of an arbitral award
when such an award is marred by an egregious error of law in
Why Egregious Errors of Law May Yet
Justify a Refusal of Enforcement Under the New York
Convention. He asserts that such an error may
violate international public policy, being contrary to the
forum’s most basic notions of justice, and fall within
article V(2)(b) of the New York Convention, which empowers
the court to refuse enforcement of an arbitral award if
enforcement would be contrary to the public policy of the
forum. By analyzing the text of the New York Convention,
arbitral case law, and policy reasons in support of
arbitration, he argues that if indeed such errors arise in
arbitral awards, these awards should be denied enforcement
under the New York Convention.
In Establishing Purchase of
Documents Under a Negotiation Letter of Credit, Mr.
Ebenezer Adodo analyses the traditional conception of
purchase of a conforming tender of documents under a
negotiation letter of credit and the extent to which that
understanding has evolved in the courts in recent years to
meet the changing needs of bankers involved in credit
operations. He provides a thorough analysis of the
conventional view of negotiation as the purchase of
complying presentation by a nominated bank, by evaluating
what the nominated bank must do vis-à-vis the beneficiary to
constitute purchase, whether the purchase took place within
the negotiation period specified in the credit and what
amounts to a good faith purchase by a nominated bank.
Our December 2009 issue also features several legislation
and case notes, and book reviews. Click
here for the
complete content page.
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