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41.  MARCH 2020 Issue
p.1

Special Feature: Alternative Investments in the Tech Era
Lin Lin and Dora Neo  •  [2020] Sing JLS 1 (Mar)
Technological innovations have brought significant changes to the financial sector, such as the ways we make investments and choose insurance plans. But the use of technology has given rise to new risks, and poses challenges to our existing legal framework. In certain cases, regulatory intervention is needed to protect the interests of investors, to guard against new risks. In other cases, however, either no further action is needed because the current legal framework can accommodate the innovations, or regulation might not be desirable as it could impede the development of technology. We must ensure that innovation is not stifled by regulation without compromising the interests of consumers. To understand how such a balance should be struck, the Centre for Banking & Finance Law of the Faculty of Law, National University of Singapore organized a conference on 27 and 28 September 2019 on “Alternative Investments in the Tech Era". This issue, which arose from the conference, has lined up a series of articles that shed light on the changes and risks brought about by technology, and put forth suggestions regarding appropriate responses.
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42.  MARCH 2020 Issue
p.4

Special Feature: The Concept of Money in the 4th Industrial Revolution—A Legal and Economic Analysis
Emilios Avgouleas and William Blair  •  [2020] Sing JLS 4 (Mar)
This article explores some of the changes that the 4th Industrial Revolution brings to our understanding of money. Our analysis does not suggest that the only valid form of money is that provided or backed by the state.We rather argue that it is unlikely that money-like means of payment will prove sustainable in the long-term if not perceived as being vested with some form of legality. Still, mere legality will not prove to be sufficient for the new payment instruments to qualify as money. They must also prove to be able to serve as means of exchange/payment. A sharp reduction in value will diminish the credibility of the payment promise and thus user confidence/trust. Like acceptance of payment on sight, the use of money as a common measure of value is one of the most important properties of fiat (and metallic) money. Retention of value in times of stress is fundamental as regards the new assets' ability to act as a measure of value and its ability to fit with common perceptions of money. The requisite enquiry should be based on empirical studies of the intertemporal behaviour of the instrument. We suggest that fiat money aside, instruments that could eventually qualify as “money" ought to pass the dual test of legality and relative retention of value. This approach does not suggest a return to the metallic rule, which would limit free circulation of money. It is rather a pragmatic reformulation of the characteristics that means of payment, which do not enjoy the backing (will) of the state, must exhibit to enjoy quasi-money or money-like status. Assets that display high volatility are, thus, unlikely to fulfil the functions of “money" and should instead be dealt under the law of investments if they qualify as such.

43.  MARCH 2020 Issue
p.35

Special Feature: TechRisk
Ross P Buckley, Douglas W Arner, Dirk A Zetzsche and Eriks K Selga  •  [2020] Sing JLS 35 (Mar)
Fintech is now defined by a long-term, global process of digitisation of finance, increasingly combined with datafication and new technologies including cloud computing, blockchain, Big Data and artificial intelligence. Cybersecurity and technological risks are thus evolving into major threats to financial stability and national security. This trend has been magnified by the COVID-19 crisis which has heightened dependence on digital technologies and seen substantial parts of the population working from home through systems of questionable security. Additionally, the entry of BigTech firms brings two new issues. The first arises with new forms of potentially systemically important infrastructure. The second arises because data—like finance—benefits from economies of scope and scale and from network effects and—even more than finance—tends towards monopolistic or oligopolistic outcomes. This leads to potential systematic risk from new forms of "Too Big to Fail" and "Too Connected to Fail" phenomena. We suggest some basic principles about how to address this entire range of risks.

44.  MARCH 2020 Issue
p.63

Special Feature: Blockchains: Private Law Matters
Rainer Kulms  •  [2020] Sing JLS 63 (Mar)
Blockchain technology is the cornerstone of FinTech. Blockchains offer the infrastructure for online platforms which store information and digital assets. Distributed ledgers are about to be employed everywhere. Regulators have opted for a regulatory sandbox approach which demonstrates the need for efficient private law rules to fill potential lacunae. This paper identifies the crucial parameters for ascertaining the private law foundations of blockchain technology and its applications. Aspects of contract and property laws will be assessed in order to determine whether digital assets are capable of acquiring erga omnes status. This will include a survey of current blockchain statutes and potential negative externalities of a blockchain which might trigger liability of its members.

45.  MARCH 2020 Issue
p.90

Special Feature: The Basics of Private and Public Data Trusts
Jeremiah Lau, James Penner and Benjamin Wong  •  [2020] Sing JLS 90 (Mar)
The term "data trust" has recently come into circulation to denote some kind of legal governance structure for the management of data, in particular digital databases, but there is much uncertainty and confusion about what a data trust is supposed to be, legally speaking. This paper examines the nature of data as a possible trust asset, and concludes that the traditional trust, the historical creation of English Equity jurisprudence and now found around the world, is a perfectly sensible vehicle for the management of data, in particular the management of combined datasets for both private and charitable purposes, especially educational purposes. The paper also considers the data protection issues that arise in relation to data trusts.

46.  MARCH 2020 Issue
p.115

Special Feature: The Promise and Perils of InsurTech
Lin Lin and Christopher Chen  •  [2020] Sing JLS 115 (Mar)
The insurance sector, in riding the wave of the FinTech phenomenon, has been rapidly expanding, with a slew of firms having emerged to provide so-called "InsurTech" services. These services incorporate concepts such as blockchain, artificial intelligence, digitalisation and the sharing economy to various aspects of the insurance industry. This profusion of technology brings with it the promise of various benefits including increasing efficiency and lowering costs for not only insurers and intermediaries, but also businesses or consumers as end-users of insurance. However, the development of InsurTech comes with corresponding risks and regulatory concerns not currently accounted for by the traditional regulatory model. This paper will examine potential risks associated with the application of InsurTech and scope out how current regulations might hinder (rather than facilitate) the development of InsurTech. This paper then concludes with a discussion of various possible responses or regulatory approaches to InsurTech applications.

47.  MARCH 2020 Issue
p.143

Special Feature: Hephaestus and Talos: The Legal Status and Obligation Theory of Robot Advisors
Simin Gao  •  [2020] Sing JLS 143 (Mar)
In the context of intelligent finance, the traditional legal framework targeting financial professionals is impractical and ineffective for robo-advisors do not possess independent legal personality, thereby leading to problems of empty enforcement, confusion concerning the identity of obligors and the failure of the existing system of duties. To deal with this dilemma, lawmakers need to restructure the obligor's identification mechanism and the system of duties. The substance of duties for the mode of robo-advisor needs to penetrate the complex veil and keep up with the algorithmic level to reflect their essential characteristics. The principles for the new regulatory paradigm are to avoid the evasion of accountabilities and responsibilities caused by dodging and relaxing the duties with the excuse of algorithm black box, as well as to avoid overburdening obligors by fully embracing the new development of artificial intelligence.

48.  MARCH 2020 Issue
p.165

Special Feature: Banking and Regulatory Responses to Fintech Revisited—Building the Sustainable Financial Service 'Ecosystems' of Tomorrow
Mark Fenwick and Erik P M Vermeulen  •  [2020] Sing JLS 165 (Mar)
Over the last decade, FinTech—broadly defined as the use of new technologies to compete in the marketplace of financial institutions and intermediaries—has disrupted the financial services sector. Here, we revisit the question of how banks and regulators can best respond to this disruption. We argue that incumbent financial service providers can learn useful lessons from the experience of the most innovative companies in the world and their efforts to navigate the new realities of doing business in a networked age. One of the striking features of successful large businesses with an established track record for sustained high performance has been their capacity to reinvent themselves as what we characterise as innovation 'ecosystems'.Akey element of an 'ecosystem' style organisation has been the implementation of effective corporate venturing strategies that feed dynamic, technology-driven innovation (what has been termed borrowing "the Start-Up Genie's Magic"). Here, we identify seven corporate venturing strategies adopted by the most innovative companies in the world and argue that incumbent banks and other financial service providers could utilise similar strategies in responding to FinTech.Acrucial element of these strategies is a recognition of the value of co-creation, namely an inclusive, collaborative partnering between incumbents and non-traditional market players. To implement this objective effectively, incumbents need to absorb the energy, skills, and resources of the most dynamic start-ups. We argue that some banks are already moving in this direction and that this trend towards the 'unbundling' of incumbents is likely to continue. We conclude with a brief discussion of the implications of such an account for regulators and regulatory design, more generally. In order to establish an environment for successful and sustainable 'ecosystems', regulators need to become active participants in these more open forms of business organisation.We characterise this regulatory approach as 'community-driven' regulatory design and identify some key issues with such a regulatory strategy.

49.  MARCH 2020 Issue
p.190

Special Feature: When is an Individual Investor Not in Need of Consumer Protection? A Comparative Analysis of Singapore, Hong Kong, and Australia
Wai Yee Wan, Andrew Godwin, and Qinzhe Yao  •  [2020] Sing JLS 190 (Mar)
In Singapore, Hong Kong, and Australia, standard retail investor protection laws do not apply to special categories of individual investors, which are broadly based on wealth or income. Prospectuses are not required for the sale of financial products to these investors and they do not have the full benefit of advice relating to the suitability of these products. However, with the increasing complexity of products and potentially unregulated alternative investments such as crypto-assets, this legal framework is increasingly being debated and challenged.We explore the rationale behind the special categories, the implications of falling into these categories and the appropriateness of the current framework. We argue that the existing criteria are anachronistic and inappropriate. Instead, all individuals making investment decisions should have the benefit of a rating framework that is based on both complexity and risks and be subject to a suitability test in the case of complex products.

50.  MARCH 2020 Issue
p.217

Special Feature: ESG Performance and Disclosure: A Cross-Country Analysis
Florencio Lopez-de-Silanes, Joseph A McCahery and Paul C Pudschedl  •  [2020] Sing JLS 217 (Mar)
We use a unique dataset to examine the link between environmental, social and governance ("ESG") disclosure and quality through a cross-country comparison of disclosure requirements and stewardship codes. We find a strong relationship between the extent of ESG disclosure and the quality of a firm's disclosure. Furthermore, we find that ESG is correlated with decreased risk. This result suggests that firms with good ESG scores are simply disclosing more information. Finally, we show that ESG scores have little or no impact on risk-adjusted financial performance.

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