SINGAPORE JOURNAL OF LEGAL STUDIES
First View
Great Crypto Crisis: The Prudential Regulation of Systemically Important Crypto Conglomerates
Sijuade Animashaun
[Mar 2024 Online] Sing JLS
Citation
Sijuade Animashaun, ‘Great Crypto Crisis: The Prudential Regulation of Systemically Important Crypto Conglomerates’ [Mar 2024 Online] Sing JLS 1-31
Abstract
Since the crypto winter began in early 2022, several market crashes and institutional collapses have ravaged the innovative financial ecosystem. Among global regulators, the major discourse is no longer the full prohibition of crypto-related activities but the protection of traditional financial systems from a “great” crypto crisis capable of disrupting financial stability. However, existing regulatory frameworks lack clarity on major aspects of the crypto ecosystem, especially relating to new associational risks and its potential to drive systemic risks among crypto conglomerates. This article examines the anatomy of recent crypto crashes and highlights the limitations of existing global regulatory developments toward preventing these threats from potentially spreading to traditional financial systems. To these emerging concerns, the article argues for the adoption of an entity-based approach to crypto regulations. Specifically, it proposes the application of adjusted prudential regulations to a new category of systemically important crypto intermediaries (SICIs) like traditional systemic institutions.
Loose Ends in Singapore's Equal Protection Doctrine
Kenny Chng
[Mar 2024 Online] Sing JLS
Citation
Kenny Chng, ‘Loose Ends in Singapore's Equal Protection Doctrine’ [Mar 2024 Online] Sing JLS 1-20
Abstract
A trilogy of landmark Singapore Court of Appeal decisions has defined the landscape of constitutional equal protection doctrine in Singapore: Lim Meng Suang, Syed Suhail and Tan Seng Kee. While this trio of cases has laid the doctrinal foundation for the constitutional right to equality in Singapore, three loose ends remain for clarification. First, what is the relationship between the legal tests articulated in Syed Suhail and Lim Meng Suang? Second, what is the relationship between both steps in the Syed Suhail test? Third, what is the distinction between the Syed Suhail test and the common law judicial review ground of irrationality? This paper will seek to study how these loose ends may be best tied up through a close analysis of the decisions which the Singapore courts have handed down since the landmark trilogy was decided.
Fair Use in the US Redux: Reformed or Still Deformed?
Jane C. Ginsburg
[Mar 2024 Online] Sing JLS
Citation
Jane C. Ginsburg, ‘Fair Use in the US Redux: Reformed or Still Deformed?’ [Mar 2024 Online] Sing JLS 1-38
Abstract
In 2019, Professor Ginsburg delivered the Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore. Titled “Fair Use in the US: Transformed, Reformed, Deformed?”, the lecture explored US caselaw applying the statutory fair use exception, highlighting its excesses and apparent rebalancing. Four and half years (and a pandemic) later, the Supreme Court has rendered decisions in two fair use cases (Google v Oracle; Andy Warhol Foundation v Goldsmith). Together, these controversies prompt inquiry whether the Supreme Court has redrawn the landscape of US fair use and copyright law, expanding fair use for commercial use of functional computer code, but narrowing it for at least some exploitations of “appropriation art.” That inquiry extends to the fair use doctrine’s potential to accommodate massive inputs of copyrighted works into databases to enable “machine learning” by artificial intelligence systems.
The Impact of AI and New Technologies on Corporate Governance and Regulation
Martin Petrin
[Mar 2024 Online] Sing JLS
Citation
Martin Petrin, ‘The Impact of AI and New Technologies on Corporate Governance and Regulation’ [Mar 2024 Online] Sing JLS 1-17
Abstract
Artificial intelligence (“AI”) and other new technologies will shape, and are already shaping, the business models, management, structures and boundaries, and governance of corporations. This article examines selected developments in this area and their potential impacts on corporate law, governance, and regulation, using both theoretical and practical perspectives. The first part discusses AI and corporate leadership, focusing in particular on management structures, liability, and autonomous algorithmic entities. The second part proceeds to theorise firms in light of three specific business-related changes or phenomena induced by AI and other technologies. Finally, this part outlines selected impacts that these changes may have on corporate governance and the regulation of AI and online platforms.
The Future of Tax Jurisdiction
Miranda Stewart
[Mar 2024 Online] Sing JLS
Citation
Miranda Stewart, ‘The Future of Tax Jurisdiction’ [Mar 2024 Online] Sing JLS 1-23
Abstract
Tax jurisdiction is a legal concept, but it is fundamentally dependent on state capacity, technology and politics. The jurisdictional boundaries of the tax state are in turn crucial in delimiting its taxing power. This article considers how tax jurisdictional concepts, in particular residence, source and the location of consumption, are changing as the capability of states to tax labour, capital and consumption changes in a global digital economy. These changes are occurring through contestation in the “borderlands” of the tax state, between multiple states and non-state actors. Governments can enhance tax capability by cooperating with each other and with global intermediaries and by adopting new technologies, but also take contradictory steps to abrogate tax jurisdiction. The article illustrates the discussion with examples of tax jurisdiction for individuals as residents, workers, investors or consumers; and for corporations, including recent global developments aimed at taxation of multinational enterprises.
Determining Courts’ Jurisdiction to Sanction Schemes of Arrangement Involving Third Party Releases: A Policy Analysis
Charles Zhen Qu
[Mar 2024 Online] Sing JLS
Citation
Charles Zhen Qu, ‘Determining Courts’ Jurisdiction to Sanction Schemes of Arrangement Involving Third Party Releases: A Policy Analysis’ [Mar 2024 Online] Sing JLS 1-19
Abstract
It is often necessary for a company to reach a compromise with its creditors, and where necessary, third parties. A useful tool for facilitating such a compromise is the scheme of arrangement, a court-controlled procedure for restructuring the relationship between the company and its members or creditors. The scheme provisions are, however, silent on whether a third-party release may be incorporated into a scheme. Since the mid 2000s, the Australian and UK courts have developed two different tests, namely the nexus test and the necessity test, to fill this statutory gap. This paper discusses policy concerns, if any, that the alternative tests have given cause to, and if the answer is ‘yes’, how these concerns should be addressed. The paper concludes that the necessity test does, and the nexus test does not, give cause for concern and that the latter should be adopted for determining scheme jurisdiction in all cases.
The Banks Duty of Care as Payment Agent: Philipp v Barclays Bank UK Plc
Sandra Booysen
[Mar 2024 Online] Sing JLS
Citation
Sandra Booysen, ‘The Banks Duty of Care as Payment Agent: Philipp v Barclays Bank UK Plc’ [Mar 2024 Online] Sing JLS 1-10
Abstract
In a much-anticipated decision, the UK Supreme Court has settled a question on the scope of a bank’s duty of care when processing payments authorised by a customer or their agent. The duty has been narrowly construed in this context. This comment criticizes the decision for not responding to the societal problem of scam payments, and compares it with Singapore case law on the subject which, as it stands, construes the bank’s duty more broadly.
Competence, Capacity and Consent to Medical Treatment: VYG v VYH [2021] SGFC 124
Hillary Chua
[Mar 2024 Online] Sing JLS
Citation
Hillary Chua, ‘Competence, Capacity and Consent to Medical Treatment: VYG v VYH [2021] SGFC 124’ [Mar 2024 Online] Sing JLS 1-11
Abstract
As it is in medicine, so it is in law: the rules for when one can give legally valid consent to medical treatment differ for minors and adults. This paper analyses Singapore’s first judgment concerning medical decision-making by and on behalf of mature minors: a Family Court decision on Gillick competence in the context of COVID-19 vaccination. This paper also discusses its implications for medical practice and critiques the age of majority in Singapore.
Harris Bin Mohd Salleh v. Chief Secretary, Government of Malaysia & Ors (2023) and Freedom of Information in Malaysia
Lee Jia Chern
[Mar 2024 Online] Sing JLS
Citation
Lee Jia Chern, ‘Harris Bin Mohd Salleh v. Chief Secretary, Government of Malaysia & Ors (2023) and Freedom of Information in Malaysia’ [Mar 2024 Online] Sing JLS 1-11
Abstract
A High Court recently ordered the Malaysian government to make public the investigation report on a plane crash accident in 1976 that killed 11 people. In granting the mandamus order, the court recognised that although not expressly provided for in the Federal Constitution, freedom of information (“FOI”) necessarily flows from the free speech clause in the constitution. While the court’s decision in acknowledging the existence of FOI in Malaysia is welcomed, this note argues that the implication of this decision seems minimal in advancing FOI in Malaysia. It is, therefore, suggested that an FOI legislative framework together with a consistent recognition, especially by the higher courts, of FOI in Malaysia would provide more systematic access to official information.
Overlooking Uncommon Buildings: Fearn and others v Board of Trustees of the Tate Gallery
Mark Ortega
[Mar 2024 Online] Sing JLS
Citation
Mark Ortega, ‘Overlooking Uncommon Buildings: Fearn and others v Board of Trustees of the Tate Gallery’ [Mar 2024 Online] Sing JLS 1-16
Abstract
This Note describes the key doctrinal developments in the Fearn decision and criticises two of these developments: the use-design distinction, and the privileging of the “common and ordinary” uses of land over “abnormal” uses of land. This Note argues that the use-design distinction is artificial and therefore the United Kingdom Supreme Court’s effective insulation of architectural design choices from “reasonableness” review may give rise to unbalanced and unfair results as it did in Fearn itself. This Note also considers the implications of privileging “common and ordinary” uses and, in particular, how a dispute between two “abnormal” uses might play out under this new regime; it considers that Fearn should have been viewed as a clash between two competing “abnormal” uses, and that a broad-based “give and take” principle should have applied to balance two competing, but fundamentally different, “abnormal” uses.