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171.  DECEMBER 2012 Issue
p.441

Banks, Agency and Misrepresentation
Kelry C.F. Loi  •  [2012] Sing JLS 441 (Dec)
A plaintiff-investor has been induced by pre-contractual misrepresentations to enter into an investment contract with a defendant-bank. This article discusses some of the issues which must be addressed in such cases. Although triggered by recent litigation between investors and banks, the discussion draws on basic commercial law principles which are of general application. Apart from the novel doctrine of 'contractual estoppel', there are alternative orthodox tools of the trade readily deployable by a commercial lawyer. These alternative means of reasoning include basic and well-established contract law principles of misrepresentation and traditional agency principles of authority, which have been overlooked because they have been overshadowed by contractual estoppel in current discourse. The point of this article is simply to take us back to basics by bringing these alternate analyses back into focus.

172.  DECEMBER 2012 Issue
p.457

Legislation and Case Notes: The Power of Legal Processes and Section 377A of the Penal Code
Lynette J. Chua  •  [2012] Sing JLS 457 (Dec)
On 21 August 2012, the Court of Appeal issued a landmark decision that elucidates the conditions under which a person has legal standing to challenge legislation for being in violation of a constitutional right in Singapore. In allowing the appeal and finding that the appellant in the case of Tan Eng Hong had locus standi to argue that s. 377A of the Penal Code infringes art. 12 of the Constitution of the Republic of Singapore, the decision enabled the fate of a contentious criminal provision to be determined by a full hearing. As doctrinal analysis of this decision will undoubtedly be forthcoming and abundant, this commentary will examine its implications from a different angle.

173.  DECEMBER 2012 Issue
p.467

Legislation and Case Notes: Irregularities in Procedure - Reconsidering Section 392
Pearlie Koh  •  [2012] Sing JLS 467 (Dec)
In corporate administration, procedures, and their due compliance, are often of as much significance as the outcomes of the proceedings they regulate. The consequence of a failure to comply with procedures, whether laid down statutorily or in the company's constitution, is often the invalidation of the subject proceeding. Such invalidation may perhaps be justified on the basis that faithful compliance does much to foster a perception that the outcomes determined at the proceedings so held are fair, a perception that is vitally important to the acceptability of the outcome by all concerned. Nevertheless, it is also the case that corporate proceedings should not be invalidated only by reason of an over-concern for matters of form, and indeed, there are potentially many situations of procedural non-compliance, or irregularities, that might fall within this category. Section 392 of the Companies Act is crafted to achieve some balance between the two extremes.

174.  DECEMBER 2012 Issue
p.481

Legislation and Case Notes: Rescuing Uncertain Leases in English Law: A Study in Compatibility for Transplantation
Kelvin F.K. Low and Rachel P.S. Leow  •  [2012] Sing JLS 481 (Dec)
The common law rule that requires certainty in the terminus of leasehold estates has been the subject of trenchant criticism even as it has been upheld repeatedly by the courts. In Berrisford v. Mexfield Housing Co-operative Ltd [2011] 3W.L.R 1091, the English Supreme Court has once again upheld the rule but has suggested that its harshness may be empered by two different techniques. This note studies the viability of these techniques in Singapore and questions if the rule may be too severely criticised.

175.  DECEMBER 2012 Issue
p.491

Easement - A Proprietary Interest in the Servient Tenement?
Teo Keang Sood  •  [2012] Sing JLS 491 (Dec)
The Court of Appeal in the recent case ofWee Siew Bock laid down the legal proposition that "a dominant owner has no proprietary interest in the [servient] land". This, it is respectfully submitted, raises doubts as to the true nature of an easement. This particular proposition is unfortunate as it will be demonstrated that an easement is indeed a proprietary interest in the servient land.

176.  DECEMBER 2012 Issue
p.496

Book Review: The Derivative Action in Asia: A Comparative and Functional Approach by DanW. Puchniak, Harald Baum and Michael Ewing-Chow, eds.
Pearlie Koh  •  [2012] Sing JLS 496 (Dec)
Corporate structures across different jurisdictions are frequently utilised for commercial, profit-making purposes. Notwithstanding this common underpinning, there is undeniably "real" (John Armour, Henry Hansmann & Reinier Kraakman, "What is Corporate Law?" in The Anatomy of Corporate Law—A Comparative and Functional Approach (2009) at p. 1 [Armour]) divergence in the jurisdiction-specific corporate laws that govern them. And diversity is necessary fodder for comparative scholarship, a diversity that this book nabashedly celebrates. The book presents case studies on how the derivative action operates in seven selected Asian jurisdictions. In addition, the editors author three overview chapters which attempt to draw the diverse threads together to present a coherent whole. As editors Puchniak, Baum and Ewing-Chow explain in their preface, a project which began as a quest for similarities revealed an "inconvenient truth" and that is that there is no single "grand theory" that unites the operation of the derivative action across the chosen Asian jurisdictions (at p. 90). Instead, how the derivative action functions in the different jurisdictions profiled can be accurately understood only if the multiplicity of local factors in each jurisdiction is duly considered and analysed. However, the book is itself necessarily predicated on a legal convergence, albeit admittedly a broad one - a convergence that is manifested in the governance strategy adopted by the corporate laws of the different jurisdictions: the conferment of a litigation decision right on minority shareholders. Indeed, comparative studies in corporate laware often informed by the "impressive" (Armour at p. 1) underlying uniformity of the corporate form, and the laws that govern it. As Armour, ansmann and Kraakman observed, "[b]usiness corporations have a fundamentally similar set of legal characteristics - and face a fundamentally similar set of legal problems - in all jurisdictions" (Armour at p. 1). The derivative action is one such common response to a common corporate law problem.

177.  DECEMBER 2012 Issue
p.498

Book Review: An Introduction to the Law on Financial Investment by Iain G MacNeil
Lan Luh Luh  •  [2012] Sing JLS 498 (Dec)
There are a number of ways to writing a law book. One is the traditional 'black letter' approach, by providing information on what the current rules and principles of law are and how to use those rules and principles to solve legal problems. This approach assumes that legal issues are by and large separate and distinct from normal everyday activity. However, law is essentially a socio-political institution. For corporate law, there is an added dimension of economic considerations. Therefore, it is no longer sufficient for authors writing on an applied area of law to produce a purely expository text without considering its non-legal context. Iain MacNeil's book is one of such books that provide more than just the legal principles and regulatory rules relevant to financial investment. He also tries to draw from other disciplines relevant theories and principles in order to introduce an element of critical awareness and assessment into the areas considered.

178.  DECEMBER 2012 Issue
p.501

Book Review: Marital Agreements and Private Autonomy in Comparative Perspective by Jens M. Scherpe, ed.
Debbie Ong  •  [2012] Sing JLS 501 (Dec)
Marital Agreements and Private Autonomy in Comparative Perspective is based on a research project of the same title. In its Preface, the Editor Jens Sherpe writes: "[I]t was apparent that the legal position on marital agreements in England and Wales contrasted starkly with that of the continental European jurisdictions, which seemed to merit a comparative study". Indeed, in recent years, the legal status of marital agreements in England and Wales has been criticised and debated on. The courts in the U.K. have a wide discretion over the determination of the financial consequences of a divorce, and marital agreements made between spouses over such matters are not enforceable in themselves. In contrast, many of the continental European jurisdictions have more definite default matrimonial property regimes and also permit marital agreements to be enforced. The topic was made part of the Law Commission of England andWales' Tenth Programme of Law Reform.

179.  JULY 2012 Issue
p.1

The Limitation Period for a Fatal Accident Claim Under Section 7 of the Civil Law Act 1956 of Malaysia: A Case for Reform
Sujata Balan  •  [2012] Sing JLS 1 (Jul)
This article attempts a critical examination of the limitation period for a fatal accident claim brought for lost support by the dependants of a deceased person under the Civil Law Act 1956 of Malaysia.It aims to demonstrate that the said limitation period has caused, or is capable of causing, harsh and unfair results to litigants in Malaysia and that reform of the law is clearly necessary. Throughout the article, reference is made to the corresponding statutory provisions in the Civil Law Act of Singapore and where relevant, the proposals that have been made for reform in Singapore.

180.  JULY 2012 Issue
p.21

The Role of Contributory Negligence in Claims for Assault and Battery
Margaret Fordham  •  [2012] Sing JLS 21 (Jul)
This article examines the role of contributory negligence in claims for assault and battery in the light of several cases which have considered the issue, including, in particular, a recent decision of the English Court of Appeal. It considers the injustice to which the current English law might give rise, and suggests alternative approaches to assault and battery cases in which claimants are partly responsible for the harm they suffer.
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