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51.  MARCH 2020 Issue
p.242

Special Feature: The Surprising Liberality of Securities Crowdfunding Regulation in Hong Kong: Insights From a Comparative Analysis
Alexander Loke  •  [2020] Sing JLS 242 (Mar)
Crowdfunding—the use of the internet and other social media by entrepreneurs to attract funding for their ideas and projects—holds forth the promise of mitigating the funding gap that entrepreneurs face. While regulators in the US, the UK and Singapore have made adjustments to the securities fundraising rules in response to the demand for a reconsideration on how the regulatory system should respond to the potential benefits proffered by crowdfunding, HK has not carried out such an exercise. This article examines whether the current fundraising rules are more restrictive than those found in the reference jurisdictions, and whether further reforms are necessary. The comparative study reveals the surprising liberality of the existing HK regulatory regime, the current regulatory strategies employed by reference jurisdictions to strike a better balance between access to funding and investor protection, and what lessons HK may derive from them.

52.  MARCH 2020 Issue
p.265

Fair Use in The United States: Transformed, Deformed, Reformed?
Jane C Ginsburg  •  [2020] Sing JLS 265 (Mar)
Since the United States Supreme Court's 1994 adoption of “transformative use" as a criterion for evaluating the first statutory fair use factor, "transformative use" analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process.Afinding of "transformativeness" often foreordained the ultimate outcome, as the remaining factors, especially the fourth, withered into restatements of the first. Lately, however, courts are expressing greater scepticism concerning what uses actually “transform" the original content. As a result, courts may be reforming “transformative use" to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The article concludes with some suggestions for rebalancing the factors.
[Full Text]

53.  MARCH 2020 Issue
p.295

Unconscionability, Undue Influence and Umbrellas: The "Unfairness" Doctrines in Singapore Contract Law After BOM v BOK
Burton Ong  •  [2020] Sing JLS 295 (Mar)
This article explores the impact of the Singapore Court of Appeal's landmark decision in BOM v BOK , where a full panel of five Supreme Court judges re-examined the status and scope of several closely-related doctrines of "unfairness" recognised under Singapore's contract law. The apex court formally articulated a three-pronged test for an unconscionability doctrine, taking pains to emphasise that Singapore should only recognise a “narrow doctrine" of unconscionability, while dismissing the possibility of an “umbrella doctrine" that merges the doctrines of duress, undue influence and unconscionability despite the court's view that there were “close linkages" between them. The breadth of the obiter dicta found in the decision, along with its 22-paragraph coda, agitated the doctrinal waters surrounding these vitiating factors and triggered a spirited riposte from a contributor to the March 2019 edition of this journal in which a detailed critique of the decision was canvassed. This article seeks to do three things. Firstly, it explains why the Court of Appeal's decision to adopt a narrow formulation of the doctrine of unconscionability for Singapore was the sensible thing to do. Secondly, it examines some of the conceptual difficulties associated with the equivocal statements made by the Court of Appeal in relation to the doctrinal overlaps between these adjacent vitiating factors. Thirdly, it proposes an organisational framework, consistent with BOM v BOK's rejection of an all-encompassing umbrella doctrine of unconscionability, for the Singapore courts to visualise the relationship between these vitiating factors so that future judicial developments of these doctrines bring greater clarity and coherence to this dynamic frontier of contract law.

54.  MARCH 2020 Issue
p.323

Proprietary Estoppel and the Land Titles Act
Teo Keang Sood  •  [2020] Sing JLS 323 (Mar)
This article seeks to demonstrate that under the LTA there are no impediments to the satisfaction of an equity based on a claim in proprietary estoppel and its enforceability against third parties. That there are problems in these two respects is misconceived in light of case law and the relevant statutory provisions in the LTA . As for the satisfaction of the equity, it is argued that a principled approach must be adopted notwithstanding the wide discretion conferred on the courts on the matter.

55.  MARCH 2020 Issue
p.341

Case Note: Federalism and Indigenous Peoples in Sarawak: The Malaysian Federal Court's Judgments in Sandah (No 1) and (No 2)
Eden hb Chua  •  [2020] Sing JLS 341 (Mar)
Legal recognition of indigenous land rights for the indigenous peoples in the Malaysian state of Sarawak is still in an unfortunate state. Despite being the largest ethnic group of the state and enjoying benefits under the federal system, the fight to hold onto their traditional customs is far from over. The recent Malaysia Federal Court rulings in Sandah (No 1) and (No 2) illustrated this point as the court denied their native customary rights on their ancestral land and also their rights to have their case heard by at least one judge with Bornean judicial experience. With no clear law to shed light on the legal existence of their traditional customs as well as the Constitution's silence on the requirement to have at least one judge with Bornean judicial experience, the Federal Court's endeavour to resolve these issues merits attention. This paper thus reviews and comments on the decisions of the Federal Court, with special focus on the implications for the federal system.

56.  MARCH 2020 Issue
p.358

Book Review: Legal and Equitable Property Rights by John Tarrant
Lau Kwan Ho  •  [2020] Sing JLS 358 (Mar)
There can be few briefs in private law more challenging than that of answering the question: What is property? That inquiry may be undertaken on so many planes that it can seem at once monumental and Sisyphean. Many have been content to skirt the edges of the debate, perhaps by limiting their investigations within a narrow compass, or by assuming the correctness of a proposition that ought in fairness to require deeper examination. Not so for Professor John Tarrant, who in a significant contribution has tackled the problem squarely.

57.  MARCH 2020 Issue
p.360

Book Review: Designing Effective Legislation by Maria Mousmouti
Benny Tan  •  [2020] Sing JLS 360 (Mar)
The overarching question that Maria Mousmouti tackles in Designing Effective Legislation —how should legislation be evaluated—is not a new one. However, the author's thesis is novel and refreshing. She argues that legislation should be evaluated based on its effectiveness, and proceeds to painstakingly show how effective legislation can be produced. In particular, she hypothesises that effective legislation "is the result of complex 'mechanics' in the conceptualisation, design and drafting of legislation and the result of conscious decisions around four elements inherent in every law: purpose, content, context and results", and offers a framework, undergirded in theory and legislative practice, on how lawmakers can produce legislation with the specific aim to be effective.

58.  SEPTEMBER 2019 Issue
p.289

Special Feature: Symposium on Contemporary Issues in Public Law: Introduction: Contemporary Issues in Public Law—Theory, Doctrine and Practice
Swati Jhaveri  •  [2019] Sing JLS 289 (Sep)
The special symposium sections of this and the September 2020 issues of the Singapore Journal of Legal Studies bring together a collection of papers that look at contemporary issues relating to public law in Singapore. In addition to looking at issues of theory and doctrine, the symposium will consider issues relating to public law litigation. Public law litigation remains an under-explored area in public law scholarship and one that is ripe for discussion. Not only has there been an increase in the number of applications for judicial review, there has also been an increasing diversity in the issues mooted in courts in recent years. For example, in the recent past, the courts have had to consider a challenge by a member of a particular geographical constituency of the constitutionality of the executive's decision not to call a by-election on the vacation of a parliamentary seat for that constituency; a challenge by a homosexual couple of the constitutionality of a provision of the Penal Code (Cap 224, 2008 Rev Ed Sing) restricting homosexual conduct in the absence of any criminal proceedings under the provision against them (with more challenges pertaining to section 377A of the Penal Code currently on the docket); a challenge by a member of an opposition political party of the constitutional vires of a loan made by the executive to an international funding body; a challenge by members of the Hindu religion of a ban on the use of musical instruments during an annual religious procession; a challenge by a Sikh prisoners' counsellor of a policy on hair for prisoners that affected members of a particular religion; a challenge by a potential electoral candidate on the absence of a by-election on the vacation of a seat in a group representation constituency; and challenges to the validity of constitutional amendments relating to the elected presidency.

59.  SEPTEMBER 2019 Issue
p.294

Special Feature: Symposium on Contemporary Issues in Public Law: The Theoretical Foundations of Judicial Review in Singapore
Kenny Chng  •  [2019] Sing JLS 294 (Sep)
The theoretical foundation of judicial review of administrative action has been the subject of fierce debate among English scholars, which is also the source jurisdiction of much of public law in Singapore. In contrast, there is comparatively little attention paid to the question of the particular theoretical foundations of judicial review in Singapore. Indeed, there is an inclination in Singapore case law and academia towards importing English theories of judicial review. Accordingly, this paper aims to contribute to the formulation of a proper theoretical foundation for judicial review in Singapore. It argues that with a proper understanding of the competing English theories of judicial review, it will be apparent that they are not readily transplantable to Singapore. As such, a unique theory of judicial review stands to be formulated in Singapore. A proper articulation of judicial review theory can have significant consequences for judicial review doctrine; this paper uses case law relating to ouster clauses to exemplify this point.
[Full Text]

60.  SEPTEMBER 2019 Issue
p.316

Special Feature: Symposium on Contemporary Issues in Public Law: Standing Up for Your Rights: A Review of the Law of Standing in Judicial Review in Singapore
Benjamin Joshua Ong  •  [2019] Sing JLS 316 (Sep)
There are two types of rules on standing to apply for judicial review of legislation or executive action on constitutional grounds. 'Interest-based' rules grant standing to a person who can demonstrate a 'sufficient interest' in the subject matter of the application. 'Rights-based' rules require the applicant to identify a specific constitutional right vested in him that has allegedly been violated. Singapore's standing rules are now rights-based. Rights-based standing rules are distinctively advantageous as they provide a forum for the courts to develop the content of constitutional rights as part of the standing inquiry; such development is not always possible at later stages of the litigation process. Unfortunately, this benefit of rights-based standing rules is obscured because Singapore's standing rules are overly complicated and not doctrinally consistent. This paper argues for a simplification of the present standing rules to fully realise the benefit of rights-based standing rules. While the paper focuses on judicial review on constitutional grounds, it concludes with observations on how standing rules may be similarly clarified in the field of administrative law and without abandoning the rights-based framework.

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