|261. ||JULY 2010 Issue|
|Book Review: Tan Sook Yee's Principles of Singapore Land Law by Tang HangWu and Kelvin F.K. Low, eds.|
Wu Zhuang-Hui  Sing JLS 222 (Jul)
|262. ||DECEMBER 2009 Issue|
|Construction of Commercial Contracts and Parol Evidence|
Tan Yock Lin  Sing JLS 301 (Dec)
This article argues that theories of interpretation and pragmatics offer solid proof that the rule-based model of construction is flawed and that the judicial shift to commercial interpretation is correct. One insight gained by analysing in the light of these theories what the courts in fact do when they construe commercial contracts is the impossibility of limiting the context to any given set of data, since the contextual-dependence of sentences is both the generator and resolver of any set of interpretative hypotheses. Other valuable insights are that a principle of rationality is necessarily presupposed in any institutionalised interactive goal-oriented communication and that the principle of instrumental rationality necessarily presupposed in the making of a contract is that the assignment of meaning shall accord with the commercial purposes of the contract.
|263. ||DECEMBER 2009 Issue|
|Enforcing Corporate Disclosure|
Hans Tjio  Sing JLS 332 (Dec)
This article suggests that the gist of securities market disclosure is the furtherance of corporate governance and not investor protection. It will be argued that public enforcement of continuous disclosure rules remains the primary means of enforcement in Singapore. But this should be supplemented by private enforcement. While jurisdictions like the U.K. have introduced legislation loosely mirroring 10b-5 actions in the U.S., allowing investors to seek compensation largely from issuers (and their insurers), recent literature suggests this is a suboptimal solution, given that any damages are ultimately borne by existing shareholders. Courts also face difficulties in conceptualising or quantifying shareholder losses since these are derived from information concerning the assets and prospects of the underlying company. But Singapore courts have shown that it is possible to treat corporate misstatements as a form of fraud against the entity, where generous causation and remoteness rules are available to measure the damages suffered by the corporation.[Full Text]
|264. ||DECEMBER 2009 Issue|
|Between Eden and Armageddon: Navigating 'Religion' and 'Politics' in Singapore|
Thio Li-ann  Sing JLS 365 (Dec)
Typically, inter-religious conflict posed the main threat to racial and religious harmony in Singapore. In 2009, 'soft constitutional law' norms ordering the distinct but overlapping spheres of 'religion' and 'politics' were extended to a newly emergent public order threat to social harmony. This arises where groups advocating religiously-informed values clash with groups advocating liberalhumanistic values to shape legal policy. The 'AWARE controversy' exemplified such 'culture wars'. A non-government organisation leadership tussle became a public order threat when non-religious parties invoked the spectre of religious activism to agitate other religious and secular groups; this episode received presidential and ministerial attention in major policy speeches, reiterating the rules of engagement between religion and politics in a secular democracy. These informal norms are analysed to ascertain the legitimate role of religion in the public sphere as exercises of religious liberty, and what constitutes a religious 'threat' to public order within the constitutional framework.
|265. ||DECEMBER 2009 Issue|
|Westminster Constitutions and Implied Fundamental Rights: Excavating an Implicit Constitutional Right to Vote|
Thio Li-ann  Sing JLS 406 (Dec)
Constitutional texts are products of conscious deliberation, although Westminster-based Constitutions are not exhaustive. This article examines whether there are implied rights in the Singapore Constitution, given express ministerial statements affirming the constitutional status of an implied right to vote. It evaluates the debates concerning the legal status of voting rights and explores the possible theoretical bases which may ground an interpretive method supporting the 'declaration' of implied fundamental rights, the legitimacy and nature of constitutional implications. Attention is paid to Australian experience in the judicial derivation of an implied right to freedom of political communication in considering methods of constitutional implications. It considers whether it is beneficial and 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.
|266. ||DECEMBER 2009 Issue|
|Consideration and Serious Intention|
Mindy Chen-Wishart  Sing JLS 434 (Dec)
The doctrine of consideration has come under increasing attack. In Gay Choon Ing v. Loh Sze Ti Terence Peter, Andrew Phang Boon Leong J.A. of the Singapore Court of Appeal raises the spectre of its replacement with the doctrines of economic duress, undue influence, unconscionability and promissory estoppel. In response to the reasoning of Phang J.A. and others, I argue that: (i) consideration is not a meaningless doctrine; in particular, the adequacy of consideration is relevant to the enforceability of an agreement and 'practical benefit' can be made a meaningful concept; (ii) contract law does not, and should not, enforce all seriously intended undertakings; and (iii) the vitiating factors do not simply interrogate the presence of contractual intention and cannot replace the functions performed by consideration.
|267. ||DECEMBER 2009 Issue|
|Common Mistake in Contract Law|
David Capper  Sing JLS 457 (Dec)
English Contract Law has long struggled to understand the effect of a fundamental common mistake in contract formation. Bell v. Lever Brothers Ltd.  A.C. 161 recognises that a common mistake which totally undermines a contract renders it void. Solle v. Butcher  1 K.B. 671 recognises a doctrine of 'mistake in equity' under which a serious common mistake in contract formation falling short of totally undermining the contract could give an adversely affected party the right to rescind the contract. This article accepts that the enormous difficulty in differentiating these two kinds of mistake justifies the insistence by the Court of Appeal in The Great Peace  Q.B. 679 that there can be only one doctrine of common mistake. However, the article proceeds to argue that where the risk of the commonly mistaken matter is not allocated by the contract itself a better doctrine would be that the contract is voidable.[Full Text]
|268. ||DECEMBER 2009 Issue|
|Certainty of Subject-Matter in the Development of Intellectual Property: "Please Sir, I Want Some More" !|
George Wei  Sing JLS 474 (Dec)
This article discusses the need for greater certainty of subject-matter in developing guiding principles in intellectual property rights. It begins by noting the importance of certainty of subject-matter in property law in general and argues that certainty as to the scope of what is protected by intellectual property law is no less important especially with the strengthening of the rights conferred (particularly in copyright). It examines briefly the need for certainty of subject-matter in the context of registered trade marks and patent law before moving into a discussion of copyright and in particular the position of names and titles. It argues for greater caution in the use of competition driven mantra such as "reaping where you have not sown" in developing property based rights and for copyright lawto make conscious attempts to apply with greater clarity and rigour the expression/idea or facts dichotomy.
|269. ||DECEMBER 2009 Issue|
|Trade Marks, Language and Culture: The Concept of Distinctiveness and Publici Juris|
Ng-Loy Wee Loon  Sing JLS 508 (Dec)
The concept of 'distinctiveness' in the Singapore Trade Marks Act 1999 plays a very important role as gate-keeper of what should be entered unto the trade mark register. For this reason, there must be proper understanding of how the statutory provisions on distinctiveness work. The aim of this article is to unravel the knots in these provisions, and to propose a construction of these provisions that furthers the policy underlying the distinctiveness requirement - namely, publici juris.
|270. ||DECEMBER 2009 Issue|
|Revisiting the General Anti-Avoidance Rule in Singapore|
Irving Aw  Sing JLS 545 (Dec)
Singapore's broadly-worded general anti-avoidance rule ("GAAR") borrowed heavily from the antitax avoidance provisions of Australia and New Zealand. It was Parliament's intention that local courts be guided by the case law of these jurisdictions in interpreting and applying the GAAR. This article discusses the different approaches that the judiciary in these two countries had adopted in interpreting and applying their respective anti-avoidance provisions, and suggests that this divergence could be attributed to a fundamental difference in the level of importance accorded to the Duke of Westminster principle. It is unclear from the Singapore High Court decision of UOL Development (Novena) Pte. Ltd. v. Commissioner of Stamp Duty whether one approach is to be preferred over the other. This article argues that it is imperative to bear in mind the reason behind the different approaches of both Australian and New Zealand courts in charting the course for a local GAAR jurisprudence.