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|141. ||MARCH 2016 Issue|
|The Doing Business Index on Minority Investor Protection: The Case of Singapore|
Lin Lin and Michael Ewing-Chow  Sing JLS 46 (Mar)
The World Bank's Ease of Doing Business index has significantly affected regulations and policies regarding corporate matters around the world, and yet there has been scant academic attempt examining the use and implication of the index, especially in the area of investor protection, which is an essential element in doing business. In this paper, we examine in depth the research methodologies employed by the Doing Business project in measuring the strength of investor protection, especially in light of the recent renaming of this indicator from Protecting Investors to Protecting Minority Investors in Doing Business 2015. Using Singapore as a case study, we argue that, notwithstanding the positive changes brought in by Doing Business 2015, the variables and components chosen in this indicator essentially fail to capture the salient features of minority investor protection. We argue that minority investor protection is an area that is inherently too context-specific to be evaluated based on a unified business assumption or by pure quantitative methods. Lastly, we also provide specific suggestions to improve the Protecting Minority Investors indicator.
|142. ||MARCH 2016 Issue|
|Contracts Governing the Use of Websites|
Eliza Mik  Sing JLS 70 (Mar)
With the progressive transformation of the Internet from a romanticised instrument of freedom and self-expression into a commercial platform for digital distribution, most websites must be recognised as access interfaces to a wide range of content and services. This paper examines the contracts purportedly governing the use of such content and services. It explores the difficulties of establishing legal intention in a context that is not unambiguously commercial or transactional and contrasts popular beliefs with the basic principles of contract law. It draws a clear distinction between contracts governing traditional e-commerce exchanges, such as buying books on Amazon.com, and contracts governing the very use of websites. In the latter instance, the website (ie the resources made available thereon) constitutes the subject matter of the transaction. Equal importance must be attributed to the fact that such contracts are formed on websites and to the fact that they govern their use. The website user will question the existence of a contract on the basis that he did not have an intention to be legally bound, or had no awareness that a transaction was taking place. The website operator will argue that, objectively, all prerequisites of a legally enforceable agreement have been met. The outcome of the discussion will, to a large extent, depend on whether the user's beliefs and expectations can be regarded as reasonable and on whether it is the user or the operator who deserves the protection of the objective theory of contract.
|143. ||MARCH 2016 Issue|
|Equal Protection and the Reasonable Classification Test in Singapore: After Lim Meng Suang v Attorney-General|
Jaclyn L Neo  Sing JLS 95 (Mar)
The realisation of the almost universally accepted ideal of equality as a legal doctrine is complicated by the fact that differentiation is an inherent part of regulation in the modern state. In Singapore, the courts have regarded the Constitution"s injunction for the equal protection of the law to be a relative, rather than an absolute, concept. Differentiating laws therefore only has to satisfy a reasonable classification test in order to pass constitutional muster. This article argues that despite recent judgments elaborating upon the scope and meaning of the equality clause, there remains at least three areas in need of further judicial elucidation. It further argues that the reasonable classification test as it now stands is sufficiently capacious for the courts to read substantive content into the equality provision should a suitable case arise in the future.
|144. ||MARCH 2016 Issue|
|The Extraneous Factors Rule in Trademark Law: Avoiding Confusion or Simply Confusing?|
David Tan and Benjamin Foo  Sing JLS 118 (Mar)
The Singapore Court of Appeal's recent decision in Staywell clearly signalled a rejection of the European "global appreciation approach" when evaluating trademark infringement. By adopting a pro-mark ethos, the Court had chosen to ignore certain factors that might affect the consumers' purchasing decision by excluding extraneous factors that could potentially negate the finding of likelihood of confusion based solely on marks-similarity and goods-similarity. This article argues that Singapore courts could consider American jurisprudence when examining "likelihood of confusion" under trademark infringement claims, such as an evaluation of the Polaroid factors, to discern factors which have an impact and effect on the consumers' purchasing decision in order to better illuminate whether the average consumer is likely to be confused. It proposes a four-stage test which integrates the US likelihood of confusion factors into the autochthonous approach advanced in Staywell. Not only is this formulation consistent with the wording of the Trade Marks Act, it would strike a better balance between protecting the proprietary right of the registered mark owner and promoting entrepreneurship and business certainty in a manner that is consonant with consumer purchasing behaviour.
|145. ||MARCH 2016 Issue|
|Management Corporation: Common Property and Structural Defects|
Teo Keang Sood  Sing JLS 149 (Mar)
This article looks at three aspects involving a management corporation in a strata development. It is argued that the principle laid down in the New SouthWales cases that a management corporation holds the common property as trustee for the unit owners has no application in the Singapore context. In light of the various difficulties faced by a management corporation in pursuing actions in contract and tort for unit owners in respect of the common property, legislative intervention to confer on the management corporation a cause of action in its own right is justified. Finally, greater clarity on what amounts to structural defects in a strata development would be welcomed as it would greatly assist a management corporation in discharging its duty in this respect.
|146. ||MARCH 2016 Issue|
|The New 'Asplenium Clause' &#151; Unconscionability Unwound?|
Garth C Wooler  Sing JLS 169 (Mar)
Just at the point where the unconscionability exception to the autonomy principle pertaining to letters of credit and demand guarantees appears to have finally emerged fully developed, the Singapore Court of Appeal has recognised the right of parties to contractually limit the range of causes of action available where the parties enter into a dispute. Finding such contractual terms enforceable has now taken the unconscionability exception almost entirely out of play and simultaneously shifted the power balance to the beneficiary while making the letter of credit product more attractive to rational buyers. The effect of the new 'Asplenium Clause' is yet to be fully seen but this paper concludes that in the immediate term, boilerplate clauses will be entered into every contract of sale that requires a guarantee to be provided, thereby virtually eliminating unconscionability as a grounds for enjoining against abusive calls on independent guarantees.[Full Text]
|147. ||MARCH 2016 Issue|
|Legislation and Case Notes: Contributory Negligence and Apportionment|
Margaret Fordham  Sing JLS 183 (Mar)
In both the UK and Singapore, the legislation governing contributory negligence provides that in cases where the claimant has been contributorily negligent his damages should be reduced to such extent as the court considers just and equitable given his share in the responsibility for the damage he has sustained. As this is a rather general exhortation, it offers limited practical guidance. More specific assistance is to be found in a number of authorities, the most notable of which is probably Stapley v Gypsum Mines Ltd, where Lord Reid famously observed that as well as looking at the blameworthiness of both defendant and claimant, it is also necessary, when apportioning responsibility, to consider the relative importance of the claimant's actions. One of the most common situations in which contributory negligence is pleaded successfully is in relation to claims arising from road accidents, and in particular accidents involving pedestrians who are knocked down by drivers. In this context, more specific guidance on apportionment is to be found in decisions such as those of the House of Lords in Baker vWillough by and the English Court of Appeal in Eagle v Chambers, which suggest that, due to the dangers inherent in driving and the disparity in the potential for causing harm between a driver and a pedestrian, a higher burden is likely to be placed on the driver.
|148. ||MARCH 2016 Issue|
|Legislation and Case Notes: A New Framework for Self-Regulation|
Markus K Labude  Sing JLS 194 (Mar)
On 18 August 2015, Parliament passed the Human Biomedical Research Bill, which establishes two separate, but related, frameworks for the regulation of human biomedical research and tissue banking.2 The aim of these frameworks is "to protect research subjects and tissue donors, so that dealings are conducted in an ethical and responsible manner. The Minister of State for Health, in moving the Bill however, was careful to emphasise that the Ministry of Health's ("MOH") intention is to use the HBRA as an instrument "to ensure the safety and welfare of research subjects whilst not stifling sound, ethical research."
|149. ||MARCH 2016 Issue|
|Book Reviews: The Constitution of Singapore: A Contextual Analysis by Kevin YL Tan|
Michael Dowdle  Sing JLS 209 (Mar)
Kevin Tan's The Constitution of Singapore: A Contextual Analysis gives a clear and easily digestible introduction to the constitutional law of Singapore. This is exactly what this series is designed to do. It is highly recommended to anyone who wants a very readable and informative introduction to Singapore's constitutional system.
|150. ||MARCH 2016 Issue|
|Book Reviews: The Jurisprudence of Lord Hoffmann: A Festschrift in Honour of Lord Leonard Hoffmann by Paul S Davies and Justine Pila, eds|
Margaret Fordham  Sing JLS 211 (Mar)
In April 2014, a conference was held at St Catherine's College, Oxford, to mark the 80th birthday of Lord Leonard Hoffmann, widely recognised as one of the greatest jurists of our time. This volume brings together as a festschrift edited versions of the papers delivered at that conference. All are written by academics with current or former ties to the University of Oxford, the institution with which Lord Hoffmann's legal career is inextricably linked. For it was to The Queen's College, Oxford that Lord Hoffmann travelled as a Rhodes scholar from his native South Africa in 1954 to study for the Bain Jurisprudence and Bachelor of Civil Law&#151;subsequently winning the Vinerian Scholarship for his performance in the final examinations and being appointed Stowell Civil Law Fellow at University College&#151;and it was to Oxford that he returned as a Visiting Professor when he retired from the Judicial Committee of the House of Lords in 2009.