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71.  SEPTEMBER 2019 Issue
p.493

Book Reviews: Pluralist Constitutions in Southeast Asia by Jaclyn L Neo and Bui Ngoc Son, eds
Benjamin Joshua Ong  •  [2019] Sing JLS 493 (Sep)
The project which gave rise to this book was motivated by a dearth of existing scholarship on the role of plurality within (as opposed to among ) Southeast Asian nations (at p 5); how plurality can serve as a "source of constitutional dynamism" rather than of "constitutional contestations" (at p 6); and the role of constitutional practice (as opposed to the features which institutions possess on paper) (at p 6). The book aims to address these gaps through a collection of essays, each of which focuses on the constitutional orders in one or two Southeast Asian countries. As the editors Jaclyn L Neo and Bui Ngoc Son recognise, the diversity of experiences and constitutional responses is such that "there is no single model of pluralist constitutions in Southeast Asia" (at p 15). After all, the nature and effects of pluralism depend on the extent of division of a society and the types of plurality (at p 10). Moreover, because pluralism itself is 'dynamic' in the sense that "a pluralist constitution should be able to reconsider new constitutional claims and modify its existing settlement to address them" (at pp 12-13), drawing comparisons is not straightforward because of changes within each country over time. Yet, the book does a good job of presenting the complexities of each country's constitutional order; and, as the editors point out in their useful introduction, interesting patterns and contrasts emerge when the various essays are placed side by side (at pp 15-18). The result is a study that is more than the sum of its parts.

72.  SEPTEMBER 2019 Issue
p.498

Book Reviews: Carter's Breach of Contract by JWCarter
Zhong Xing Tan  •  [2019] Sing JLS 498 (Sep)
The author of this treatise holds the positions of Emeritus Professor of Law, University of Sydney, General Editor of the Journal of Contract Law and Consultant to Herbert Smith Freehills. Earlier versions of Emeritus Professor Carter's treatise on breach of contract (previously published in 1984 and 1991, and substantially reworked and retitled as a 2012 first edition with Hart Publishing) have taken their place in the canon of leading works focusing primarily on this topic (other recent additions include John Stannard and David Capper, Termination for Breach of Contract (2014) and Neil Andrews, Malcolm Clarke, Andrew Tettenborn and Graham Virgo, Contractual Duties: Performance, Breach, Termination and Remedies (rev 2017)).

73.  MARCH 2019 Issue
p.1

Contracts, Non-Compensatory Damages, and the Intangible Economy
Moshood Abdussalam  •  [2019] Sing JLS 1 (Mar)
This paper intends to contribute to the debate concerning the foundation and place of non-compensatory damages as a class of remedy applicable to contract law. It pursues this objective based on the theory that non-compensatory damages serve in modern contract law to incentivise and promote the creation of knowledge-based public goods through contracts. Connected with this argument is the view that the settled acceptance of non-compensatory damages in contracts can help in the deployment of contracts to supplement intellectual property ("IP") law regimes in the creation of knowledge-based public goods. The postulations of this article are, chiefly, as follows: a) contract law remedies must respond to contemporary transactional hazards thrown up by the intangible economy; and, b) contracts can be assets per se when they border on critical social interests.

74.  MARCH 2019 Issue
p.29

Knocking Down the Straw Man: Reflections on Bom v Bok and the Court of Appeal's "Middle-Ground" Narrow Doctrine of Unconscionability for Singapore
Rick Bigwood  •  [2019] Sing JLS 29 (Mar)
In BOM v BOK , the Singapore Court of Appeal settled a three-pronged test for unconscionable transactions: (1) plaintiff "infirmity", (2) defendant "exploitation" of plaintiff infirmity, and (3) evidential burden on defendant to show the challenged transaction to be "fair, just and reasonable". This formulation is intended to represent a "middle-ground" doctrine of unconscionability, in the sense that it is broader than the original "narrow doctrine" of unconscionability from such cases as Fry v Lane and Cresswell v Potter in England, but "much narrower" than the "broad doctrine" of unconscionability in such cases as Commercial Bank of Australia Ltd v Amadio in Australia. The Court rejected for Singapore the so-called "broad doctrine" on the ground that it is too unruly to function as a legal doctrine. To the extent that the Court saw the Amadio formulation as representing the spurned "broad doctrine", this article is an attempt to defend that formulation against a charge of hopeless uncertainty. In significant respects, it is argued, the Court's "middle-ground" doctrine is itself potentially broader than the Amadio-style approach to unconscionability.

75.  MARCH 2019 Issue
p.67

Singapore's Competition Regime and Its Objectives: The Case Against Formalism
Kenneth Khoo and Allen Sng  •  [2019] Sing JLS 67 (Mar)
Despite more than ten years since Competition Law was first introduced in Singapore, a clear consensus on its underlying objectives remains elusive. In this article, we put forth a normative case for why Singapore's competition authorities should prioritise the promotion of economic welfare, as opposed to a more pluralistic approach that pursues competing objectives of equal standing. We argue that the normative bases for many of the rules in EU Competition Law are inconsistent with Singapore's Competition regime, and that such rules are not suitable for direct importation into Singapore. In particular, we illustrate how an overt reliance on EU case law as persuasive authority has resulted in a "formalistic" approach to Competition Law, where presumptions of law allow competition authorities to infer liability upon proof of certain conduct. Henceforth, we suggest that competition authorities in Singapore should exercise considerable caution in their application of EU law in individual cases.
[Full Text]

76.  MARCH 2019 Issue
p.108

The High Court as De Facto Court of Appeal: A Revisitation of Leave Requirements in the Criminal and Family Court Jurisdictions
Lau Kwan Ho  •  [2019] Sing JLS 108 (Mar)
The High Court almost always sits in its judicial capacity with a single Judge. The exceptions are limited. This article is concerned with the expanded constitution of the High Court in the exercise of its criminal and family court jurisdictions, and with the opinion expressed in some recent cases that the enlarged three-judge panel of the High Court might in these contexts be viewed as a de facto Court of Appeal. Upon a contemplation of the consequences said to result from such occasional expansions of the court, it is suggested in this article that the practice, while defensibly founded on practical necessity, should also lead to consideration of another method that could achieve the same outcome.

77.  MARCH 2019 Issue
p.124

A Vineyard in a Law Clinic: The Practical Application of a Therapeutic Jurisprudence Philosophy in a UK Law Clinic
James Marson, Katy Ferris and Anna Kawalek  •  [2019] Sing JLS 124 (Mar)
This paper examines the development and practical operation of a UK-based law clinic, founded on Therapeutic Jurisprudence ("TJ") principles. It discusses how the authors have sought to infuse TJ's core values, style and techniques, underpinned by humanitarian philosophies, into Clinical Legal Education (and as a starting point for its legal pedagogy). To date, most papers in this area have examined criminal law clinics in the US, but this paper is made unique by its focus upon the linkage between TJ and refugees against the UK contextual backdrop. TJ is becoming an increasingly important skills-base for graduates, particularly for those students who will become the next generation of lawyers/advisors, and must therefore, we argue, be incorporated into global legal education.

78.  MARCH 2019 Issue
p.147

Proximity as Reasonable Expectations
Justin Tan  •  [2019] Sing JLS 147 (Mar)
Proximity is a necessary condition to found a duty of care in negligence, In this article, I make three arguments. First, I argue that the cases show that proximity as currently defined (physical, causal and circumstantial closeness between the plaintiff and defendant) is an unsatisfactory duty-determining device. Proximity so defined does not explain most of the Singapore duty cases and is unsatisfactory in dealing with psychiatric harm cases. Next, I explore why this is so. It turns out that the current definition is unsatisfactory because it is non-binary, non-basic and fails to accommodate both the personal characteristics of the parties and residual legal principles. Lastly, I propose a new proximity rule and guidelines in implementing this rule. The new proximity rule is: proximity is present if and only if it is reasonable to expect the defendant to take account of the plaintiff's interest in not suffering the damage that he suffered.

79.  MARCH 2019 Issue
p.177

Liability of Servant for Criminal Breach of Trust: An Exercise in Hermeneutics
Tan Yock Lin  •  [2019] Sing JLS 177 (Mar)
This article relies on structural arguments derived from the criminal breach of trust provisions of the Penal Code , comparisons with the Larceny Acts and common law offences such as misconduct in public office and conspiracy to defraud, as well as the principle of equitable construction, to reach conclusions on the meaning of two important modalities of entrustment. These are entrustment "in such capacity [as servant]" and "in his capacity of a public servant" which are the bases for greater punishment under section 408 and section 409 respectively. The conclusions on the public servant modality are at variance with judicial interpretations of the Indian courts.

80.  MARCH 2019 Issue
p.204

Singapore Relational Constitutionalism: The 'Living Institution' and the Project of Religious Harmony
Thio Li-ann  •  [2019] Sing JLS 204 (Mar)
This article interrogates the nature and workings of relational constitutionalism in the multi-religious secular polity of Singapore, focusing on the project of maintaining 'religious harmony'. While managing inter-group conflict within rifted polities is a global problem, Singapore may have evolved some unique or unusual approaches in this project. Relational constitutionalism as a method of managing religious harmony brings with it a broader vocabulary of purpose beyond rights in speaking of duties, trust, solidarity, a conciliatory rehabilitative ethos, in service of sustainable relationships. This involves the executive prescribing values through non-binding soft constitutional norms, against the constitutional framework. With a view to pluralising the idea of constitutionalism, the article examines the norms, actors and processes deployed to resolve various 'disharmony crises'. It argues that a public ritual aimed at pacification and promoting solidarity has evolved, and reflects on how constitutions as 'living institutions' manage divided societies.

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