Best practices, principles and tips for effective trial lawyering.
Adapted from Common Sense Rules of Advocacy for Lawyers by Keith Evans.
Common Sense Rules of Trial Advocacy
Case: CAI v CAJ [2021] SGHC 21 – arbitration award set aside for breach of natural justice
Significance: the General Division of the Singapore High Court (S Mohan JC) set aside part of an arbitral award and the 3-member Tribunal’s decision on an extension of time defence for breach of natural justice. Judgment here.
Whether Managing Director or CEO has legal power or authority to borrow money or give security
Blasco, Martinez Gemma v Ee Meng Yen Angela [2020] SGHC 247
Significance: Singapore High Court, per Kannan Ramesh J, held that a managing director or CEO (acting or otherwise) did not, as a general rule, have the power (implied actual authority or apparent / ostensible authority) to borrow money or give security on behalf of the company by reason of his position. This was a context-sensitive issue and regard should be had to all the circumstances of the case: at [38].
Jurong Aromatics Corp Pte Ltd v BP Singapore Pte Ltd [2018] SGHC 215 – Charges over receivables as security; contracts prohibiting assignment
In Jurong Aromatics Corp Pte Ltd (receivers and managers appointed) and others v BP Singapore Pte Ltd and another matter [2018] SGHC 215, the Singapore High Court considered the nature of charges and whether contractual clauses prohibiting assignments applied to prevent the charge from arising. The court also considered decrystallisation, estoppel, waiver, and whether insolvency set-off applied.
Ma Hongjin v SCP Holdings Pte Ltd [2020] SGCA 106 – Doctrine of Consideration in Variation of Contracts Upheld
Significance: five-person bench of the Singapore Court of Appeal refuses to abolish the doctrine and requirement of valid consideration for variation of contracts, while suggesting that contracting parties may expressly agree to dispense with the requirement for varying a particular contract.
Retailer Insolvency and Rights of Goods Suppliers
It was reported that in the light of the liquidation of long-surviving departmental store Robinsons, goods suppliers have been experiencing issues with payments for sold consigned goods.
What has not been considered in these reports is that suppliers who consigned goods to Robinsons should consider if it is indeed a consignment at law and whether title or property of goods have passed to Robinsons, or if not then whether they can take back the goods.
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Lazada’s Personal Data Breach and Rethinking Cost-Benefit Analysis of PDPA Compliance
Lazada’s Data Breach
Lazada reported that its Redmart customers’ personal data had been illegally accessed and sold online. The stolen data includes names, phone numbers, email and mailing addresses, encrypted passwords and partial credit card numbers of 1.1 million accounts.
The Personal Data Protection Commission (PDPC) has been informed. If Lazada is eventually found to have failed to put in place reasonable security arrangements to protect the personal data, it will be subject to penalties.
Yet, one wonders how effective the penalties are on making organisations, especially large profit-making ones, from taking users’ personal data seriously.
Case: Offence of Raising Funds Without Prospectus and Small Offer Exemption
Significance: In Public Prosecutor v Tay Chee Ming [2020] SGMC 1, the court found a company director and shareholder, Tay, guilty of an offence under section 240 of the Securities and Futures Act (Cap. 289) (SFA) for raising funds from the public in Singapore through offers of convertible loan agreements (CLA) with investors by his company. Tay was sentenced to imprisonment for 15 months. Tay raised about S$8 million in total.
This appears to be the first court decision on the offence and a discussion on the small offer exemption under section 272A(1) of the SFA, which is one of the safe harbour exemptions from prospectus requirements for businesses to raise funds. The private placement exemption in section 272B of the SFA was not raised by the accused and so was not considered.
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Dr Jeremy Fernando, Internal Investigations, Misconduct and Public Relations
Dr. Jeremy Fernando, a non-residential teaching staff of Tembusu College, National University of Singapore (NUS) was recently reported to have been dismissed for alleged sexual misconduct. NUS has since lodged a police report and issued a press statement after student group Students for a Safer NUS (SafeNUS) called for accountability.
There are important legal, crisis management and public relations (PR) lessons to be learnt from this episode (quite apart from the important issues about organisations upholding cultures of safety from sexual and emotional abuse).
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Choice of Law for Arbitration Agreements
The highest courts of Singapore and the United Kingdom have recently issued decisions regarding the choice of law to govern arbitration agreements.
Singapore Courts’ Approach
In BNA v BNB and another [2020] 1 SLR 456; [2019] SGCA 84 (“BNA”), the Singapore Court of Appeal adopted at [44]-[48] the following three-step approach from BCY v BCZ [2017] 3 SLR 357 (HC) (“BCY”):
- The parties’ express choice of proper law governing the arbitration agreement is first identified (the “Express Choice of Law”).
- If there is no express choice, the court ascertains the parties’ implied choice of law based on their intentions at time of contracting (the “Implied Choice of Law”).
- If an express or implied choice is absent, the law governing the arbitration agreement is the system of law with the closest and most real connection to it.
This is based on the framework in Sulamerica Cia Nacional de Seguros S.A. v. Enesa Engenharia S.A. [2012] EWCA Civ 638 (“Sulamerica”).
An express choice of the proper law of the main contract does not, in and of itself, also constitute the proper law of the arbitration agreement: BNA at [61].
There is a presumption that the parties’ choice of law for the entire/main/underlying contract (containing the arbitration clause) also reflects the parties’ implied choice of law governing the arbitration agreement (BNA at [61]).
However, this presumption can be rebutted. The choice of a seat that is different from the place of the law of the main contract is not by itself sufficient to displace the starting point: BNA at [62]; BCY at [65].
The inquiry of whether the presumption is displaced only becomes relevant if the law of the seat is materially different from the (I suppose, putative) law governing the arbitration agreement (lex arbitri): BNA at [63]. E.g. if the seat of arbitration is Singapore but the assumed lex arbitri by that point in the analysis is the law of the People’s Republic of China (PRC).