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|21. ||SEPTEMBER 2020 Issue|
|Commercial Judicial Review in Singapore: Strategic or Spontaneous?|
Eugene K B Tan  Sing JLS 448 (Sep)
This article examines the increasing use of judicial review under administrative law by corporate entities in Singapore to protect or even to assert strategic business interests. When used effectively, commercial judicial review can be a powerful tool. It considers why such a trend has arisen and the implications for public law litigation. The backdrop of the Attorney-General (Additional Functions) Act is also considered. The article argues that judicial review is increasingly an important consideration for companies seeking to protect their interests against what they regard as unfair or unlawful government or regulatory actions. It suggests that private sector entities in embracing public law litigation would also do well to also support administrative law values such as legality, fairness, and accountability.
|22. ||SEPTEMBER 2020 Issue|
|Fraudulent Sex Criminalisation in Singapore: Haphazard Evolution and Accidental Success|
Jianlin Chen  Sing JLS 479 (Sep)
In this article, I critically examine the evolution of fraudulent sex criminalisation in Singapore and make two contributions. First, I demonstrate that the major amendments to the relevant Penal Code provisions ( ie , in 2007 and 2019) were made pursuant to an attempted importation of English legal provisions, without due regard to the synergetic relationship between the imported provisions and the existing provisions in both the Penal Code and the English statutes. Second, I normatively assess the 2019 reform. I argue that the 2019 reform is desirable for two reasons: (1) the reform finally brings the plain-wording of the statutory provisions in line with what the government is prepared to fully enforce; and (2) the ostensible decriminalisation of fraudulent sex is mitigated by the broadlyworded cheating offences and the undisturbed broad judicial interpretation of how "fear of injury" may vitiate sexual consent.
|23. ||SEPTEMBER 2020 Issue|
|Rethinking Bankruptcy Alternatives in Singapore|
Jodi Gardner  Sing JLS 502 (Sep)
Bankruptcy processes are an integral part of any financial system; they provide an escape path for people burdened by problem debt, whilst also allowing businesses some level of clarity on the recovery of sums unpaid. Bankruptcy does however have a number of significant and longterm consequences for the debtor, and creditors are unlikely to have their accounts repaid in full. There has therefore been an increasing focus on the development of bankruptcy alternatives-allowing individuals to be released from debts without the strict processes and consequences of formal bankruptcy, whilst also maximising the returns to creditors. In Singapore, a wide variety of bankruptcy alternatives have developed, and indebted individuals can now make an educated choice based on their personal situation. This article analyses the different bankruptcy alternatives in Singapore, highlighting the benefits and detriments of the processes available and outlining some potential reforms to provide a comprehensive and accessible regime.
|24. ||SEPTEMBER 2020 Issue|
|The Failed Hopes of Disintermediation: Crypto-Custodian Insolvency, Legal Risks and How to Avoid Them|
Matthias Haentjens, Tycho De Graaf and Ilya Kokorin  Sing JLS 526 (Sep)
This article explores the legal risks involved in depositing cryptocurrency with crypto-custodians such as crypto-exchanges. These risks materialise most acutely in case these crypto-custodians fall insolvent, which has happened over the last decade in several instances. Recent years have witnessed the demise of crypto-exchanges such as Cryptopia (New Zealand), QuadrigaCX (Canada), BitGrail (Italy) and a host of other crypto-exchanges around the world. These cases reveal that the qualification of the contractual and property law rights of crypto-investors is problematic. This is why this article discusses which rights crypto-investors can and should be able to assert in case a crypto-custodian falls insolvent. To answer this question, the (legal) qualification of bitcoin is analysed (can it be owned and if so, how can such ownership be created and transferred?) and the status of deposited bitcoins is discussed (do stored crypto-assets form a part of the crypto-custodian's insolvency estate or can they be revendicated by customers?). Private international law aspects form the starting point of the legal analysis (which court has jurisdiction to open insolvency proceedings and hear cryptoinvestors' claims, and what law applies to such claims?) and the analysis is based on the current terms and conditions of major crypto-custodians.
|25. ||SEPTEMBER 2020 Issue|
|Charity and Law: Past, Present and Future|
Matthew Harding  Sing JLS 564 (Sep)
In this article, I focus on the role of law in constituting what I call 'legal charity' as a mode of social action. I begin by reflecting on how law has played a key role historically in defining a charity sector with its own distinctive character. I then turn to recent developments putting pressure on the doctrine by which law has constituted legal charity as a distinctive mode of action. Finally, I explore how law should respond to these recent developments, imagining several possible futures for the charity sector as I go, and considering whether law should continue to constitute legal charity as it has done historically, or now allow legal charity to wither and die in favour of other modes of social action.
|26. ||SEPTEMBER 2020 Issue|
|Certain Drafting Mysteries Concerning the New Insolvency, Restructuring and Dissolution Act|
Kiu Yan Yu  Sing JLS 581 (Sep)
The Insolvency, Restructuring and Dissolution Act 2018 caps the recent round of reforms to Singapore's insolvency regime, and represents the immense work that has been done to turn Singapore into an international centre for debt restructuring. Many aspects of the Act are new to Singapore and have elicited widespread discussion, such as the restrictions placed on ipso facto clauses. However, one area that has been overlooked is the drafting of provisions that were in place in one form or another under the old regime. The modification and transposition of these provisions to the omnibus act introduced new drafting oddities, rendering some of the provisions difficult to interpret. This paper aims to highlight some of these drafting issues, clarify the meaning of the relevant provisions, and provide some thoughts on how similar issues can be avoided in the future.
|27. ||SEPTEMBER 2020 Issue|
|Open Banking and Libra: A New Frontier of Financial Inclusion for Payment Systems?|
Andreas Kokkinis and Andrea Miglionico  Sing JLS 601 (Sep)
A wide range of digital initiatives have an impact on 'financial inclusion', ie, access to banking services both for underbanked and low-income customers. Promoting financial inclusion using virtual platforms in low and middle-income countries enables reaching vulnerable and excluded customers. This article examines the new frontiers of open banking and cryptocurrencies for payment systems from the perspective of inclusive financial development. The possibility for technology-based change in the financial markets is demonstrated in the online delivery of banking services and in the business models and operations of intermediaries that provide them. Enhancing the appropriate public policy on financial data and the availability of 'open data' for use by other firms and investors represent the main challenges for regulators. This article argues that there is a public interest in data access that requires coordination at industry level and may also require regulatory intervention to ensure the governance of data technologies.
|28. ||SEPTEMBER 2020 Issue|
|COVID-19 in Singapore: 'Responsive Communitarianism' and the Legislative Approach to the "Most Serious Crisis" Since Independence|
Darius Lee  Sing JLS 630 (Sep)
The Singapore government has called the COVID-19 pandemic "the most serious crisis" that Singapore has faced since Independence. However, Singapore did not issue a Proclamation of Emergency. Instead, it adopted a 'legislative model' of emergency powers, addressing COVID-19 through ordinary legislation, including and especially the new COVID-19 (Temporary Measures) Act 2020 . Despite the sweeping nature of the powers thereunder, the government has exercised a calibrated approach in its measures, shaped by communitarian norms and high level of responsiveness towards the needs of members of the Singapore community, albeit not without its weaknesses. This article thus makes the case that Singapore's response to COVID-19 has been characterised by two main features: a legislative emergency in law and 'responsive communitarianism' in practice. It argues that COVID-19 has seen the further concentration of executive power where the law is increasingly instrumentalised as a tool towards social and political priorities.[Full Text]
|29. ||SEPTEMBER 2020 Issue|
|Upholding Responsible Government: Legal and Political Controls on the Prorogation Power in Singapore|
Seow Zhixiang  Sing JLS 665 (Sep)
This article argues that judicial control of the prorogation power in Singapore should be confined to enforcing the Constitutional provisions that directly or indirectly regulate the power - the most important being the 6-month limit on the interval between sessions of Parliament. Beyond the Constitutional provisions, the Constitutional principle engaged in an exercise of the prorogation power is responsible government, which is turned on its head when Parliament is prorogued on the advice of a Prime Minister who does not command its confidence. Responsible government is secured not by legal controls but by political controls, ie the reserve power of the President to dismiss a Prime Minister who does not command confidence. This power can be operated to avoid, or to reverse, a prorogation advised by a Prime Minister who does not command the confidence of Parliament. There is no therefore need for judicial control of prorogation beyond enforcing the relevant Constitutional provisions.
|30. ||SEPTEMBER 2020 Issue|
|Mobile Intellectual Property and the Shift in International Tax Policy from Determining the Source of Income to Taxing Location-Specific Rents: Part One|
Daniel Shaviro  Sing JLS 681 (Sep)
In recent decades, a number of fantastically successful, mainly American, MNEs - led and epitomised by the "Four Horsemen", Apple, Amazon, Facebook and Google, but also extending beyond the tech sector - have earned huge profits, while paying very low global taxes, through their use of IP. Since intellectual property, in contrast to tangible property, generally lacks a clear location, it empowers corporate tax avoidance at the expense of both the production countries where the MNEs' high-value owner-employees live, and the market countries where their customers live. This two-part article assesses the challenges posed for countries' international tax systems by the rise of mobile intellectual property, including but not limited to the case where it is embodied in a digital platform. Part One in this issue assesses the challenges posed for the traditional income tax concept of source, and for the OECD's proposed focus on the site of "value creation". Part Two in the next issue will focus on proposals to shift taxing rights towards market jurisdictions that may enjoy location-specific rents with regard to the MNEs' access to their consumers, including via the use of DSTs.