Official Publication of The Law Society of Singapore | … Centre/Law...Official Publication of The Law Society of Singapore | March 2017 MCI (P) 082/11/2016 Continued on page 4 President’s

Official Publication of The Law Society of Singapore | March 2017

MCI (P) 082/11/2016

Continued on page 4

President’s Message

Singapore Law Gazette March 2017

Some of the facts and information shared in this piece may come across as surprising to some of you. But feel free to fact-check or debate with me in an appropriate setting. Not every aspect shared may apply to, or resonate with, every reader. But if a lawyer you know could be helped by the perspectives and practical pointers shared here, I would have fulfilled my objective. During my time serving on Council, I have seen ample anecdotal evidence of lawyers battling depression, facing burnout or experiencing compassion fatigue. An oft-cited John Hopkins study published in the Journal of Occupational Medicine (1990),1 revealed that of more than a hundred professions surveyed by researchers, lawyers had the highest incidence for depression. In Australia, John Brogden, former New South Wales Opposition Leader touched on mental health issues in the legal field during the Tristan Nelson Memorial Foundation annual lecture.2 He shared that lawyers are approximately three times more likely to report psychological distress than people in other industries. One of the pastoral care initiatives the Society recently rolled out is MACH (Members Assistance and Care Hotline). MACH for short. This helpline, hotline is a first port of call for lawyers needing help. Interestingly enough, this acronym is similar to the Tamil word, Macha, which means big brother or brother in law(!) and connotes a close friendship. In this case, Big Brother is not watching you but watching out for you! This is not “MACH” ado about nothing. There are two main areas that our pastoral care line concerns: ethics and member care. Richard Tur has persuasively described a life in the law as “an adventure in applied ethics”.3 But to prevent misadventures, call our hotline. While the front-end ambit and the back-end structure may evolve over time, for now, some of the ethical queries would be properly channeled to the Advisory

Committee (succeeding the previous Ethics Committee). This committee will provide non-binding guidance on real life ethical conundrums faced by practitioners. For lawyers facing disciplinary proceedings, the Law Society has a statutory duty to prosecute in accordance with the legislative framework. This is consistent with the important tenet of self-regulation – a fundamental feature of independence of the Bar. As a profession, we need to discharge our duties fairly and impartially to uphold public confidence in the integrity of the legal profession. However, separate and distinct from that, for respondent lawyers, the Society has a separate scheme of volunteer lawyers serving as defence counsel under our Defence Assist Scheme. It is practically difficult to be simultaneously counsel (i.e. defence lawyer) and client (i.e. respondent in disciplinary proceedings). In one example defending a lawyer at the Inquiry Committee (“IC”) level many years back, an IC member threw out a lifeline to my client during the oral hearing. He missed it. Being emotionally engaged, this was entirely explicable. As counsel however, with the IC’s permission, I could pick up the query and help address the tribunal. For lawyers that could benefit from a separate, independent counsel, the Defence Assist Scheme is for you. Avail yourself of the pro bono services of a fellow member of the Bar who kindly offer to help a lawyer in need. For senior category lawyers needing to speak to a Council Member, senior lawyer or Senior Counsel (on the latter, we are grateful to the SC Forum), we will do the appropriate matching. We will ensure you have a confidant in confidence. You are not alone. I repeat, you are not alone. I touched on depression at the start of this piece. There is a place and space for professional counselling (not just a fellow professional’s informal counselling). For this, let me share (for the benefit of all members) that the Society has a paid, anonymized counselling service called Law Care. Law Care facilitates members to speak to trained counsellors and psychologists on mental health issues. From last year,

Pastoral Care for the Profession

Pastoral Care for the Profession 01President’s Message

Diary and Upcoming Events 06From the Desk of the CEO 08State Courts and Family Justice Courts Committee 2016 Dialogue with the Law Society of Hong Kong 09

News

Illegality and the Civil Law in Singapore: Lessons from the UK? 12Upcoming Changes in Singapore’s Patent Law and What They Meanfor Business and Patent Applicants 22New Year, New Rules: How Singapore and Stockholm are Vying fora Piece of the Investment Arbitration Pie 28

Features

Compass – Let’s Keep it Confidential 32Case Notes – Cameron Ford’s International Commercial Cases 35Spotlight – Putting on the Boss Hat 41Practice Support – Atypical Theft Offending 46

Columns

Alter Ego – Destiny and Destinations 51Book Shelf – Lawyer’s Ethics: Doing What is Right, Not What is Easy 53

Lifestyle

Notices Information on Wills 55

58Appointments

Contents


The Singapore Law Gazette

An Official Publication of The Law Society of Singapore

The Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

The Council of The Law Society of SingaporePresident Mr Gregory VijayendranVice Presidents Ms Kuah Boon Theng Mr Tan Gim Hai AdrianTreasurer Mr Dhillon Singh

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Isaac, Mr Ng Lip Chih, Ms Lisa Sam, Mr Michael Chia, Mr Anand Nalachandran, Mr Yeo Chuan Tat, Ms Felicia Tan, Mr Paul Tan, Ms Simran Kaur Toor, Mr Grismond Tien, Ms Low Ying Li, Christine, Mr Sui Yi Siong, Mr Ng Huan Yong

Editorial BoardMs Malathi Das, Mr Rajan Chettiar, Mr Marcus Yip, Ms Simran Kaur Toor, Assoc Prof David Tan, Dr William Wan, Mr Cameron Ford, Ms Celeste Ang, Ms Janelene Chen, Mr Vincent Leow, Ms Debby Lim, Ms Lye Hui Xian, Mr Kishan Pillay, Mr Evans Ng, Mr Benjamin Teo, Ms Gloria Lee, Ms Lee Hui Yi, Mr Fong Wei Li, Mr Asik Sadayan, Ms Aileen Chua, Mr Suang Wijaya, Mr R Shriveena Naidu, Mr Kyle Leslie Sim, Mr Alex Liam

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the Law Society Council extended this service to practice trainees and relevant legal trainees too. Mental health issues affecting lawyers are the elephant in the room. We only read about the diagnosis when lawyers get into trouble. By then, it is big news. The state’s resources are expended to deal with the consequences of the conduct. There must be better ways to deal with this. An old adage tells us that prevention is better than cure. I had a meeting in January with Professor Munidasa Winslow to bounce off some ideas on a preliminary basis. Vice-President Kuah Boon Theng, a medico-legal expert, will help drive some thought leadership on these prevention issues. Let me dedicate the rest of this message to issues of stress management for junior lawyers and burnout for middle category lawyers. First, on stress management. Get the notes of Professor Winslow’s erudite presentation on “Navigating Professional Burnout: Practical Strategies for Stress Management” on 20 January this year. Paul Seah’s ensuing sharing of commonsensical tips and practical pointers for young lawyers really completed the same. A précis of top ten self-help points shared by Tyger Latham in “The Depressed Lawyer – Why are so many lawyers so unhappy”:4

1. Set realistic and obtainable goals based on what you

have accomplished and experienced in the past.

2. Learn to prioritise your life, i.e. focus and put your efforts into action items that are truly important. Let go of those items that are either insignificant or not time-sensitive.

3. Recognise that “mistakes” are a part of life, essential, and often present the opportunity for important learning opportunities.

4. Be cognisant of your emotional barometer and use such information to evaluate whether you are achieving an optimal balance between life, work, and play. If you are stressed out all of the time, pay attention to that information and make changes to enable you to reach equilibrium.

5. Take your mental health seriously. Consider your mental health to be as important as any other professional obligation. As with psychologists, impaired attorneys often ignore the early warning signs of mental

illness and risk placing themselves as well as others in serious jeopardy.

6. Seek balance in your life. Make sure you are taking time to care for yourself so that you can care for your clients. As with other high-pressure and demanding professions, attorneys who neglect their physical, psychological, spiritual, and interpersonal lives run the risk of making mistakes on the job.

7. Learn to manage your stress by finding healthy outlets for it. Whether you manage your stress through exercise, socialising, or channeling your energies into other, non-legal pursuits, be sure to make time for these things. In fact, schedule them into your calendar and view them as every bit as important as your weekly meeting with the partners.

8. Accept that the practice of law is inherently stressful. While it is important to accept this reality, it is not okay to succumb to it.

9. Know and take advantage of your personal strengths, while acknowledging, accepting, and minimizing your weaknesses. No one is perfect and those who assume they are, are not only insufferable to be around but also run the risk of over-extending themselves, failing at their jobs, and potentially disappointing those who count on them.

10. Remember that true professionals know when to ask for help and delegate responsibility. Be familiar with the resources available to you – be they personal or professional – and utilise them. If you feel you are constantly “stressed out,” depressed, or struggling with substance abuse/dependence issues, get professional help immediately. Just as any psychologist would consult an attorney when addressing legal issues outside of their area of expertise, so too, an attorney should be prepared to consult a mental health worker if s/he feels ill-equipped to address the psychological stressors in her/his life.

In addition, a book shared with me recently contains some valuable nuggets of advice. Australian Lawyer Jerome Doraisamy “The Wellness Doctrines for Law Students and Young Lawyers”5 (2015) chronicles the journey of a young lawyer who suffered from severe clinical depression over an 18-month period starting from late 2011. In his chapter on “How can I manage an often onerous workload in law?”, here are some valuable nuggets of advice from a lawyer who bounced back with resilience:



1. Prioritise other things in your life.

2. Practise efficiency and discipline.

3. Exercise transparency and open communication with your superiors and colleagues.

4. Set achievable goals.

5. Choose the right cultural fit for you. It is important to take time to glean what you can about a workplace’s culture so that you can determine if it fits with your personality/lifestyle and if it is really what you want from a legal career.

6. Set time limits – be strategic and avoid perfectionism. As an aspiration, the Law Society will ensure that every junior lawyer who requests a one-on-one mentorship will be paired up with a senior lawyer. More on the details of this mentorship at an appropriate juncture this year. In addition, we have plans to convene a forum for young lawyers with a “no holds barred” discussion under Chatham House Rules. For Middle Category members, the Communications and Membership Interests Department will conduct a survey to poll that demographic to discern and incise into push factors. We will apply data analytics on the results to accurately survey top push factors so that the study could lead to formulation of an appropriate action plan. While

each one’s journey is unique, we aim to discern common themes among the Mid Cats. In the journey of legal practice, I pray that none of us will lose the hope of our calling. It will be a tragedy for the legal fraternity if lawyers feel dead inside and quit this noble profession. We must reach out in compassion as a profession before it reaches a soliloquy in the endgame. As a profession and with its different pockets, we can be a safety net of care and counsel to a cry for help. This is what true and authentic relationships in the Bar is all about. The Law Society cares. ► Gregory Vijayendran President The Law Society of Singapore

Notes

1 Eaton, WW et al “Occupations and the prevalence of major depressive disorder”, Journal of Occupational Medicine, 1990 Nov. 32(11) 1079–87.

2 John Brogden “Leading Change in the Legal Profession” (Speech delivered at the Tristan Jepson Memorial Foundation Annual Lecture 2013, Federal Court of Australia, 17 October 2013) <http://www.tjmf.org.au/2013/12/video-2013-tristan-jepson-memorial-foundation-annual lecture/>.

3 Richard ELS Tur “An Introduction to Lawyers’ Ethics” in The Journal of Professional Legal Education (Volume 10, No 2 (1992) 217).

4 Tyger Latham “The Depressed Lawyer – Why are so many lawyers so unhappy”, in Psychology Today (posted on 2 May 2011) <https://www.psychologytoday.com>.

5 Jerome Doraisamy “The Wellness Doctrines for Law Students & Young Lawyers” (Xoum Publishing, reprinted in 2015).

Notice of Change of Particulars Members are required to submit a “Notice of Change of Particulars” through eLitigation (https://www.elitigation.sg/home.aspx) whenever there is any change in the particulars relating to your practice, eg if you move from one law practice to another, if there is a change in your designation, or if you cease to practise. The Notice of Change of Particulars can only be submitted through the eLitigation account of the individual lawyer. If you do not have an eLitigation account, you may approach the Service Bureau for assistance, subject to payment of applicable fees and charges. Please refer to the Supreme Court’s step-by-step guide on submitting a Notice of Change of Particulars at http://www.supremecourt.gov.sg > eLitigation > Practising Certificate > e-Filing Service.


News

Diary and Upcoming Events

1 February 2017Lunar New Year Luncheon12.30pm–2.00pmState Courts Bar Room

7 & 8 February 2017Developing Personal Effectiveness for Legal PractitionersOrganised by the Continuing Professional Development Department8.30am–6.00pm39 South Bridge Road

10 February 2017Unveiling of 50th Anniversary Commemorative PlaqueOrganised by the 50th Anniversary Celebrations Committee6.30pmThe Law Society of Singapore

13–14 February 2017Legal Practice Management Course (19th Run)Organised by the Continuing Professional Development Department9.30am–4.30pm, 9.30am–1.00pm55 Market Street

17 February 2017Networking Event @ TAG HeuerCo-organised by the Law Society of Singapore and TAG Heuer6.30pmTAG Heuer @ Wisma Atria

27 February 2017Visit by Christopher Finlayson, QC, Minister and Attorney-General of New Zealand12.00pmThe Law Society of Singapore

Diary

Upcoming Events20 & 21 April 2017Litigation Conference 201728–30 April 2017Annual Malaysia/Singapore Bench & Bar Games 20174 May 2017Business Simulation Workshop for Legal Practitioners22 & 25 May 2017Networking Workshop for Legal Practitioners (Inclusive of Networking Event)10 & 11 October 2017Developing Personal Effectiveness for Legal Practitioners

About the Conference

The Litigation Conference 2017 is proudly presented by the Civil Practice Committee of The Law Society of Singapore. The two-day Conference (20 & 21 April 2017) aims to bring together the judiciary, senior practitioners and industry experts across various jurisdictions to provide fresh insight on the latest developments in this area of practice.

The theme for Litigation Conference 2017 is 50 Years On – Thinking Forward, in commemoration of the 50th Anniversary of The Law Society of Singapore. International, regional and Singapore speakers are invited to take part in various panel discussion sessions to exchange and share ideas and experiences on the changing landscape of litigation and what the future holds for litigation lawyers, both the young and the senior.

Some of the topics of the Conference include the following:

The First Thing We Do, Let’s Kill all the Lawyers Changing Landscape of Litigation – Litigation vs Arbitration vs Mediation Convergence (Harmonization of Asean Law/ Court Procedures) Modernisation of Law Firm Models and Impact on Litigation Third Party Funding - How Does it Work? Growing Pains: Challenges faced by the Young Lawyer (Litigators) Litigation – What’s Next?

About the Organisers The Law Society is a key provider of continuing professional development programmes for legal professionals in Singapore. The Law Society provides practice-oriented programmes which are aimed at helping legal professionals to acquire and maintain professional competence in core areas of practice and to keep up with the latest legal developments and emerging areas of practice.

Sponsorship Opportunities A variety of sponsorship opportunities are available for this Conference. For further details, please contact [email protected].

Register Now!

For more information, please visit our website at:

http://www.litigationconference2017.com.sg

Public CPD Points:

6 Points (Day 1)

6 Points (Day 2)

Practice Area:

Civil Procedure

Training Level:

General


News

CEO's Message

Dear Members,

This month, we saw the official launch of the Law Society Mediation Scheme (“LSMS”) on 10 March 2017, an event that was graced by the Chief Justice himself. In recent years, mediation has gained much traction as a viable means of achieving a peaceable settlement of disagreements amongst disputants. With the view of encouraging the use of mediation amongst fellow legal professionals, the Alternative Dispute Resolution Committee has developed the Law Society Mediation Scheme (“LSMS”) as an additional option to the Law Society’s existing toolkit of alternative dispute resolution solutions, such as the Law Society Arbitration Scheme (“LSAS”). Launched on 1 August 2007, the LSAS seeks to provide disputants with an opportunity to resolve their disputes through mediation in a cost-effective and timely manner without having to resort to or continue with litigation or arbitration. The LSMS complements the LSAS by providing parties with the option of having disputes under the LSAS mediated either before or after LSAS arbitration proceedings have commenced. To find out more about our Dispute Resolution Schemes, please check out <http://www.lawsociety.org.sg/For-Public/Dispute-Resolution-Schemes>. If you are interested in gaining the skills and know-how as a professional mediator, do sign up on our CPD Portal for the workshop on “Strategic Conflict Management for Professionals” co-organised by the Law Society and Singapore Mediation Centre. Module 1 takes place from 8 to 9 May 2017, Module 2 from 15 to 17 May and the Mediation Skills Assessment on 22 May 2017. On 22 March, at the second State Courts Luncheon of 2017, President Gregory Vijayendran shared with members some of the findings arising from the Legal Industry Needs Study, which was undertaken by our consultants from Eden Strategy Institute and generously funded by MinLaw. Having highlighted the findings earlier in his OLY Speech, President wanted to seek further feedback from members so that Law Society can work with our members to further refine the action plan. A recommendation made by our consultants was for the Law Society to bring on more courses on business skills; so on 16 March, we held the third run of the CPD seminar “Business Simulation Workshop for Legal Practitioners” (a fourth run of this workshop will take place on 4 May) and on 22 March, we held a CPD seminar on “Law Firm Branding and How to Do it Right”. In addition, to help lawyers better

understand contractual issues that may arise from the adoption of cloud computing, we held a CPD seminar on “Understanding and Negotiating Cloud Contracts” on 7 March. There will be more of such courses lined up for you throughout the year so do keep a look out for our eBlasts on CPD courses or check out our CPD Portal at <http://www.lawsoc.org.sg/en-gb/home.aspx>. Also as a result of the Legal Industry Needs study, we held the Legal Technology Roadshow on 27 and 28 March, with Justice Lee Seiu Kin as the guest of honour. The Roadshow featured a range of different products and services of legal technology providers and business development consultants. For some of these products which can help law firms improve their productivity and increase their business capabilities, we have procured partial funding by SPRING Singapore in hope of spurring mass adoption of technology especially amongst the small law firms. For online legal research and knowledge management tools, the Law Society would be tapping into the Education Fund provided by our professional indemnity liability brokers, Lockton, to subsidise part of the first year’s subscription costs for our members, limited to one subscription per law firm. Other products and services are being offered to members at a discounted price with Law Society acting as the demand aggregator. We hope that such initiatives will enable more of our members achieve the “baseline” suite of legal technology as envisaged by the Singapore Academy of Law’s Legal Technology Vision. If you missed the Roadshow, do check out the deals at <http://www.lawsociety.org.sg/For-Lawyers/Running-Your-Practice/Practice-Support/Tech-Start-for-Law-Programme> or contact our Legal Productivity and Innovation team at [email protected] for more details. We will assist you with the application of the various grants and advise you on the different types of products and services that may be suitable for your legal practice. We also welcome your feedback on how we can help you deliver world class standards of legal services more efficiently.

► Delphine Loo Tan Chief Executive Officer The Law Society of Singapore

From the Desk of the CEO

News


State Courts and Family Justice Courts Committee 2016 Dialogue with the Law Society of Hong KongLast November, representatives from the State Courts and Family Justice Courts Committee 2016 held its first-ever dialogue with members of the Law Society of Hong Kong (“LSHK”). The delegation, led by the Law Society’s 2016 Council Vice-President Ms Kuah Boon Theng, received a warm reception from the LSHK’s President Mr Thomas So, Vice-President Ms Melissa Pang, Immediate Past President Mr Stephen Hung and various chairpersons and members of the specialist committees of the LSHK.

A lively exchange of views on pressing issues of law and public policy was already well underway during lunch hosted by the LSHK.

LSHK’s Mr Stephen Hung and the Law Society’s 2016 Council representative, Mr Sunil Sudheesan, shared their mutual experiences dealing with the challenges faced by practitioners in the field of criminal law practice in areas such as pro bono funding. Mr Lawrence Teh, Chairperson of the Law Society’s Alternative Dispute Resolution Committee and representative of the Civil Practice Committee, engaged his counterparts on the vibrant judicial review practice in Hong Kong civil litigation, Hong Kong’s plans to roll out “apology” legislation (legislation that provides for certain circumstances whereby an apology by a party should not have any evidential value in civil liability) and the adequacy

LSHK’s President Mr Thomas So and 2016 Council Vice President Ms Kuah Boon Theng exchanging tokens to commemorate the event.

Dialogue with Law Society of Hong Kong


News

Dialogue with Law Society of Hong Kong

of party and party costs in relation to the costs of running a law firm in Hong Kong. Ms Elaine Tan, Chairperson of the Law Society’s Information Technology Committee, and Ms Lisa Sam and Mr Michael S Chia, Co-Chairpersons of the Law Society’s Small Law Firms Committee, engaged their Hong Kong counterparts on issues and challenges facing small and medium sized law firms in today’s economy. One striking statistic was that 90 per cent of law firms in Hong Kong had five partners or less. Topics discussed included the issue of rising client expectations, challenges brought on by the commoditisation of certain types of legal services, and technological solutions available to lawyers to increase productivity and efficiency. In the area of family law, the Law Society’s Family Law Practice Committee Co-Chairperson, Ms Michelle Woodworth, and members of the LSHK’s Family Law Committee, Mr Jonathan Mok and Ms Barbara Hung discussed a broad range of issues including parenting coordination, mediation and the hearing of family law cases. An interesting takeaway from their discussion was that in the context of family law dispute resolution, the Courts in Hong Kong always conclude children matters before progressing to the division of assets when dealing with ancillary matters.

Ms Sharon Lin, representing the Personal Injury and Property Damage Committee, shared insights on Singapore case law developments in relation to the concept of provisional damages, a relatively new concept in Hong Kong. LSHK was also interested to know more about the use of cost scales in the Singapore High Court as Hong Kong had yet to implement such a system. Mr Billy WY Ma, Mr Peter Tsang, Mr Tak S Wong and Mr Herbert Tsoi of LSHK engaged Mr Goh Kok Yeow, Chairperson of the Probate Practice and Succession Planning Committee, on strategies for Hong Kong lawyers to extract grants of probate or letters of administration in relation to Hong Kong-domiciled deceased persons who had assets in Singapore. Though time spent with LSHK was brief, the dialogue provided a good platform for the Hong Kong and Singapore lawyers to share expertise and experiences, and on which to deepen professional ties.

Jeanette YeoRepresentation and Law Reform DepartmentThe Law Society of Singapore

Photo with permission of the Law Society of Hong Kong.

Feature


Illegality and the Civil Law in Singapore: Lessons from the UK?Patel v Mirza [2016] 3 WLR 399; [2016] UKSC 42

Introduction Suppose A lends a skilled investor (B) some money to seize on an investment opportunity. B is to make the investment. The two will then split the profits. If the investment opportunity eventually fails to materialise, A may obtain restitution of the money from B, on the ground of failure of consideration. Now suppose the investment opportunity were one involving insider trading. Can A still get his money back from B if the opportunity does not materialise? Or can B successfully raise the defence that A cannot ask the Court to “lend its aid to a man who founds his cause of action upon an immoral or an illegal act”?1 This was the dilemma facing the nine-judge UK Supreme Court in Patel v Mirza (“Patel”).2

In Singapore, at common law, A’s claim would probably fail. In Cheng Mun Siah v Tan Nam Sui, where a buyer of property claimed that the contract of sale was void for illegality under the Residential Property Act, the Court did not allow the buyer to recover the deposit he had paid because (a) the Court would not “assist either one or the other of the parties”; (b) the plaintiff “cannot be heard to

allege his own turpitude and … any loss he may suffer is well-deserved”.3

In Patel, on the other hand, all nine Judges allowed A’s claim. Of particular interest is how they treated the landmark case of Tinsley v Milligan (“Tinsley”),4 which laid down the “reliance principle” – which is very similar to the Court’s ruling in Cheng Mun Siah that the plaintiff “cannot be heard to allege his own turpitude”. The majority (led by Lord Toulson) overruled Tinsley and held in favour of the plaintiff. Notably, the minority (led by Lord Sumption) chose not to overrule Tinsley, but still reached the same result. Patel also addresses the broader methodological question of how the illegality principle can be said to translate into legal rules which are in harmony while being sensitive to the different contexts (e.g. different legal causes of action) in which they apply. This note aims to reflect on Patel with a particular focus on ideas in it that may be of interest for the future development of the law in Singapore. It has proven difficult to organise a note on such a multi-faceted topic; what follows is simply

The law on the illegality defence in Singapore is in a fragmented state. In Patel v Mirza, the UK Supreme Court attempted to overhaul this notoriously confusing area of the law, and presented various ideas which are of potential interest to its development in Singapore.

Feature


a series of comments on a selection of various important issues raised in Patel. The Policy Rationale for the Illegality Defence The Singapore Courts have rarely attempted to articulate robustly the rationale for the illegality defence. The leading case of Ting Siew May v Boon Lay Choo (“Ting”) held that it is a matter of the “wider public interest”,5 apparently referring to the public interest considerations behind the statute that has been contravened. But often the statute has only stipulated that certain conduct (e.g. insider trading) has certain consequences (e.g. criminal sanctions). It has not stipulated that certain related but different conduct (e.g. a contract to commit insider trading, or a claim that an accomplice to insider trading has acted negligently) has certain other consequences (e.g. inability to recover damages). Why should the common law come in and stipulate what the legislature has deliberately chosen not to stipulate? A better explanation for the illegality defence was provided in ANC Holdings Pte Ltd v Bina Puri Holdings Bhd (“ANC”): that “[t]he court cannot allow a litigant involved in turpitude to call in aid the court’s coercive powers to advance or benefit from his turpitude”; in other words, as held by McLachlin J in the Canadian case of Hall v Hebert, the court cannot “punish conduct with the one hand while rewarding it with the other”, which would threaten the “integrity of the legal system”.6 In other words, the illegality defence is not about the policy behind the particular rule being violated, but rather about a broader policy relating to the legal system as a whole. The majority in Patel turned such statements of public policy directly into rules of law. Lord Toulson held that the purposes of the illegality defence are the policies that “a person should not be allowed to profit from his own wrongdoing” and that “the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand”.7 He therefore held that the test for the illegality defence is one that involves assessing these very policies (as weighed up against other policies).8 The point was: because rules on illegality ultimately exist to serve these policies, the court should simply apply these policies directly. Such an approach may be a useful argument for Singapore practitioners who seek to urge the Court not to apply the framework in Ting as if it were a set of rigid rules. However, it is not perfect. Consider United Project Consultants Pte Ltd v Leong Kwok Onn,9 where a company had been penalised for making inaccurate tax returns. The Court of

Appeal allowed its claim against its tax agent for failing to warn it about the inaccuracies. The difficult is that there were two different types of wrongdoing: the plaintiff’s violation of tax law, and the defendant’s tort of negligence. The Court’s finding in favour of either party could thus be criticised for enabling the other’s wrong. An approach based on principles of public policy would therefore have been no clearer than one based on legal rules. There is another related problem: that of taxonomy. In Singapore, the doctrine of illegality has been applied not only as a defence, but also in the assessment of damages for loss of income (where the income was from illegal sources)10 and in determining whether a duty of care exists or has been breached.11 In Patel itself, while the defendant claimed that illegality was a defence, the plaintiff claimed that illegality was the very reason why the claim ought to succeed. How should the law on illegality, with its multifarious applications, be sub-divided, if at all? Should it be divided into tort, contract, and unjust enrichment? Or into illegality as a reason for allowing an action, a factor limiting the remedy, and a defence? Or should there be simply just one umbrella principle of illegality and public policy? The Various Approaches in Patel Patel demonstrates at least three different possible approaches. In a recent lecture, Lord Neuberger described Lord Toulson’s approach as being “virtually identical” to that in Ting.12 We will now examine it, followed by Lord Neuberger’s and Lord Sumption’s. Lord Toulson’s Approach Lord Toulson, leading the majority, seems to have proceeded on the basis that, once some illegality exists somewhere, then the court must analyse whether the “public interest in preserving the integrity of the justice system should result in denial of the relief claimed”. Thus, Lord Toulson eschewed “over-complex rules”,13 such as analysing whether the plaintiff was “‘getting something’ out of the wrongdoing”,14 whether a contract is “tainted by illegality”,15 or whether title has passed.16 In place of these, the court simply had to ask whether, in the light of various public policy considerations, “denial of the claim would be a proportionate response to the illegality”.17

Thus, Lord Toulson laid down the following framework. The Court will not “enforce a claim if to do so would be harmful to the integrity of the legal system”. The Court will consider: (a) “the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim”; (b) “any other relevant public policy

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on which the denial of the claim may have an impact”; and (c) “whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts”.18

This is a consequentialist approach. It asks not whether the plaintiff has the right to bring a claim (i.e. whether the substantive law governing the transaction is on the plaintiff’s side), but rather whether the Court will enforce that claim (i.e. whether the Court will assist the plaintiff to enforce that law). For example, Lord Toulson would ask not whether title had passed under an illegal contract, but rather whether the Court would “lend its assistance to an owner to enforce his title”.19

Lord Neuberger’s Approach Lord Neuberger’s approach was to lay down a “general rule” (which he called “the Rule”) that in “a claim for the return of money paid by the claimant to the defendant pursuant to a contract to carry out an illegal activity, [when] the illegal activity is not in the event proceeded with owing to matters beyond the control of either party … the claimant is entitled to the return of the money which he has paid.”20

Comment on Lord Neuberger’s and Lord Toulson’s Approaches One would think that Lord Neuberger’s “Rule” avoids the complexity of “balancing of the kind suggested by Lord Toulson”.21 However, the “Rule” is not that clear: it comes with the provisos that it is only a “prima facie or presumptive approach”,22 and that it is an entirely separate question whether or not the “Rule” should even apply at all.23 For example, said Lord Neuberger, the “Rule” should not apply where the defendant has changed his position after receiving the money or where the criminal law in question exists to protect the defendant.24

Similarly, Lord Toulson did not go so far as to create completely unfettered judicial discretion. By contrast, he held: “a person who satisfies the ordinary requirements of a claim in unjust enrichment will not prima facie be debarred from recovering money paid or property transferred by reason of the fact that the consideration which has failed was an unlawful consideration”. Hence, the plaintiff could recover simply because there was “[n]o particular reason … to justify [the defendant’s] retention of the monies” despite the presence of illegality.25 Like Lord Neuberger, he would have allowed exceptions to this rule, such as “a contract … of a nature too grossly immoral for the court to enter into any discussion of it”.26

In short: despite their apparent differences, both Lord Toulson and Lord Neuberger applied a policy-based analytical framework that recognised that the law ought to have different starting points depending on the type of claim brought, and to identify specific types of public policy that may tilt the case one way or another. They even took into consideration the same policy factors.27 While Lord Toulson’s reasoning was more explicitly consequentialist than Lord Neuberger’s, ultimately Lord Toulson allowed the claim not because there were consequentialist reasons to do so, but rather that there were no reasons, consequentialist or otherwise, not to; and Lord Neuberger, similarly, allowed the claim because the Rule demanded it and there were no reasons not to apply the Rule. The difference between the two may be more apparent than real. Lord Sumption’s Approach What is radically different is Lord Sumption’s approach. It endorsed the “reliance test” (to which we will return later) – “whether the person making the claim is obliged to rely in support of it on an illegal act on his part”.28 Hence, his reasoning was carefully analytic: the illegality rendered the contract void; and if a contract is void for any reason, then restitution must follow.29 Any exceptions are to be very specifically defined, rather than part of a general public policy. Otherwise, the Courts would not only be exercising too much discretion at the expense of consistency,30 but also failing to explain the “analytical connection between the illegality and the claim”.31

Comment on Lord Sumption’s Approach On closer inspection, cracks appear in this approach. First, as we will see below, there is no single principle that explains why the exceptions to the rule are what they are. Lord Sumption explains such exceptions with maxims such as “the parties to the illegal act are not on the same legal footing” or that there is an “overriding statutory policy”;32 but surely these are as potentially open-ended as a more explicitly discretionary approach. Second, it merely postpones the analytical inquiry: Lord Sumption’s rule about illegality is really a rule about contractual voidness; it works by assuming that illegality causes contractual voidness; but this skips over the question of why, and when, illegality does so. Because Lord Sumption’s rule is really one about the consequences of contractual voidness, unlike the majority’s approach, it has nothing to say about illegality in (for example) tort law. Lord Sumption claims to achieve consistency in the law,33 but he achieves consistency in the

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law of restitution at the potential expense of consistency in the law of illegality. Whether one type of consistency should be valued more than the other is a very high-level issue that goes to the heart of how the legal system is organised. To the extent that illegality unravels everything, one can justify having a law of illegality that operates independently from the strictures of the law of restitution. As Lord Kerr put it, the Court could simply not “effectively ignor[e] the illegality that surrounded the making of the contract”, no matter what the cause of action is.34 Similarly, Singapore law has chosen to treat illegality as being capable of overriding parties’ legal rights.35

In short, the same criticisms made against Lord Neuberger’s approach may be made against Lord Sumption’s, but at least Lord Neuberger was candid about focusing on public policy rather than legal principle. But this leads to another difficult problem: might the public policy of illegality end up swallowing up the rules of unjust enrichment? Rules on Illegality Versus Other Legal Rules Suppose the contract in Patel had been partly performed. For Lord Sumption, the plaintiff should win because the law of unjust enrichment is such that restitution should be available whether the failure of consideration is total or partial.36 For Lord Neuberger, the plaintiff should win, not because of this juristic reason, but because the reasons of public policy for the plaintiff winning would be the same whether the failure of consideration is total or partial.37

Thus, instead of engaging with debates such as (a) whether restitution is available on the ground of partial failure of consideration; and (b) whether cases of contractual illegality are always cases of total failure of consideration because illegal consideration is no consideration at all,38 Lord Neuberger simply said: “the correct analysis is not the centrally important issue, given that the question as to how the court deals with illegal contracts is ultimately based on policy”.39 Similarly, later he said that a situation in which the defendant had “received the money and had altered his position so that it might be oppressive to expect him to repay it”40 should be an exception to the rules on illegality, rather than simply part of the separate change-of-position defence in the law of unjust enrichment. Singapore law, which has held that the law of illegality can trump parties’ rights, must carefully consider in what ways it may and may not do so. It is one thing to hold, as did Lord Toulson, that illegality can trigger the Court’s discretion as to whether or not the parties’ legal rights should be enforced.

It is another for illegality to alter the legal rules that are constitutive of those legal rights – the Singapore Courts have never gone this far. The “in pari delicto” Maxim Singapore law has tended to place heavy reliance on the maxim in pari delicto potior est conditio defendentis (“where both parties are equally in the wrong the position of the defendant is the stronger”).41 This maxim has been deployed (albeit obiter) to reach an opposite conclusion from that in Patel. Top Ten Entertainment Pte Ltd v Lucky Red Investments Pte Ltd involved what was in effect a claim for restitution. In that case, a lessee was to pay both “hiring charges” for furniture and “rent” for premises. After a while, it sought a refund of payments it had made to the lessor, alleging that they had been made pursuant to an illegal transaction to evade tax by overstating the “hiring charges” and understating the “rent”. The Court of Appeal held that, had there been such illegality (on the facts there was not), the lessee would not be entitled to a refund of the payments it had made because it was “in pari delicto” with the lessor, having been “very much privy to” the apportionment between the “hiring charges” and the “rent”.42

In Patel, however, Lord Mance flatly rejected the idea that a “lack of parity of delict between the parties” could be a “bar to rescission”,43 and Lord Toulson said that such maxims tend to “fetter the law” and “distract the court’s mind from the actual exigencies of the case”.44 Such criticism prompts a re-examination of the in pari delicto maxim in Singapore. Consider the following cases. In Ken Glass Design Associate Pte Ltd v Wind-Power Construction Pte Ltd, a bogus sale and purchase agreement (which was in reality a sale and leaseback) was held void as an illegal attempt to deceive JTC. The Court held that, because the parties were in pari delicto, “they should as far as possible be returned to their original positions”;45 thus, the defendant “purchasers” got their stakeholder moneys back. By contrast, in Cheng Mun Siah (discussed above), the purchasers did not get their deposit back. And in Public Prosecutor v Intra Group (Holdings) Co Inc and ANC, the fact that the parties were in pari delicto was said to be a reason to let their “losses lie where they fall”.46

How might this disparity be explained? In Ken Glass, unlike Cheng Mun Siah, the purchasers’ deposit was in the hands of a stakeholder, not the vendor. To let the losses lie where they fell would have left the stakeholders with money which they could not touch. In other words, the in pari delicto maxim was not the main reason why the case was decided the way it was; the true reason was the court’s

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desire to tie up loose ends. This suggests that the in pari delicto maxim is unsatisfactory as it is merely a placeholder for more complex considerations. But with what ought it to be replaced? In Patel, Lord Sumption said that the maxim is really short for two sorts of cases: (a) where the “[plaintiff’s] participation in the illegal act is treated as involuntary”, e.g. induced by “fraud, undue influence or duress”; (b) where “the application of the illegality principle would be inconsistent with the rule of law which makes the act illegal”, e.g. where the rule is “intended to protect persons such as the plaintiff against exploitation by the likes of the defendant”.47

This in fact echoes ideas already seen in Singapore case law. We have examined United Project Consultants, where a company was allowed to recover from its negligent tax agent for failing to warn the company that it fell afoul of tax laws; this was justified on the grounds that the appellant’s offence was due to an “honest misapprehension” rather than “conniv[ing] to cheat IRAS by evading tax”, and that to disallow the claim “would be to reward the wrongdoer and punish the innocent party”.48 The language of “wrongdoer” and “innocent party” echoes Lord Sumption’s exception to his rule in cases where the rule violated is one which exists to protect the plaintiff against the defendant. This shows that there are much clearer tests that can be applied than the in pari delicto maxim. But how can such tests be rationalised as part of the broader illegality defence? Consider Hounga v Allen, where the plaintiff illegal worker, who had been trafficked into England, abused, and then fired, sued her employer for dismissing her discriminatorily. The employer could not raise the defence that the contract of employment was void for illegality. For Lord Toulson, this was because the public policy against human trafficking outweighed the public policy in favour of allowing the illegality defence.49 By contrast, Lord Sumption explained the same case as being one in which the plaintiff did not need to rely on her illegal entry into the UK to make her claim.50 This brings us to our next issue: can such a “reliance” principle rationalise the law on illegality? The “Reliance Principle” The “reliance principle” is commonly thought of as a rule of property law established in Tinsley v Milligan: “[a] party to an illegality can recover by virtue of a legal or equitable property interest if, but only if, he can establish his title without relying on his own illegality”.51 However, until its scope was limited by the Court of Appeal in Ting to claims to vindicate proprietary rights, it was thought in Singapore to have created a “principle of general application”.52

The Principle in Tinsley v Milligan In Tinsley, Tinsley and Milligan both contributed money toward buying a property, which was put in Tinsley’s sole name for the illegal purpose of defrauding the authorities by giving the impression that Milligan was eligible for social welfare benefits. Tinsley now claimed that the property was hers absolutely. The House of Lords held that it was not: Milligan successfully claimed to have an equitable interest in the property. To claim this, Milligan did not have to rely on her illegality; she only had to rely on the fact that she contributed money toward the purchase price, after which the presumption of resulting trust would kick in. By contrast, Tinsley could not win because she would have to rely on her illegality to rebut the presumption of resulting trust.53

The immediately obvious criticism of this decision is that it does not define “reliance”. Milligan only had to “rely” on the fact that she contributed money toward the purchase of the house; she did not have to say why she wanted to buy the house or why it was to be in Tinsley’s sole name.54 By contrast, Tinsley could not win because she would have to prove not only that the parties wanted the house to be in her sole name, but also why they wanted it to be. Why did Tinsley have to bear a more difficult burden of proof? The “Reliance Principle” in Singapore In Singapore, a few cases illustrate further problems with the reliance principle. In Suntoso Jacob v Kong Miao Ming, a case which pre-dates Tinsley, the appellant had transferred shares to the respondent pursuant to an illegal purpose. The appellant sought to get them back on the grounds that the respondent held them on either an express trust or a presumed resulting trust for the appellant. The Court rejected the resulting trust argument on the ground that “the unlawful purpose of the transfer cannot be ignored. It is too artificial to sever the purpose from the transactions, i.e. the transfer of the … shares to the respondent without any payment …”55 In other words, the Court rejected the reasoning which was later used in Tinsley v Milligan. But after Tinsley, the Court in Chee Jok Heng Stephanie v Chang Yue Shoon (“Chee”) allowed the plaintiff, who had given money to the defendant to be held on an express trust for her with the intention of preventing it from being seized by the police, to get her money back. This was because she did not have to rely on the trust agreement “for any purpose other than providing the basis of [her] claim to a property right”.56 Regrettably, the Court did not consider the point in Suntoso Jacob that the trust agreement was nonetheless

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motivated by an unlawful purpose. Instead, the Court not only accepted the reasoning in Tinsley, but extended it to a case involving an express trust. Furthermore, the basis of the remedy granted in Chee was not a declaration that the defendant held the money on trust for the plaintiff, but rather the common-law remedy for money had and received (i.e. restitution of unjust enrichment).57 This would imply that the claim was a personal claim founded on the fact of the defendant’s enrichment rather than a proprietary claim founded on the plaintiff’s equitable interest, i.e. the principle in Tinsley v Milligan may have been extended past the realm of pre-existing property rights. Yet in Ting, the Court of Appeal held that the “reliance principle” is limited to cases premised on an “independent cause of action” from the contract, e.g. an assertion of a proprietary interest.58

The “Reliance Principle” as Discussed in Patel These Singapore cases illustrate the instability of the reliance principle. It is therefore noteworthy that the majority in Patel disapproved of the reliance principle altogether (as opposed to merely cutting down its scope, as in Ting). This was for two reasons. First, as Lord Toulson said, the reliance principle is arbitrary because it turned on a “procedural technicality”, viz. the presumption of advancement.59 Lord Sumption, though he did not disapprove of the reliance principle, disapproved of the technicality with which it was applied: “If Ms Tinsley had been a man and Ms Milligan had been his daughter, the decision would have gone the other way because the presumption of resulting trust would have been replaced by a presumption of advancement … This is because the equitable presumptions operate wholly procedurally, and have nothing to do with the principle which the court is applying in illegality cases.”60

Second, Lord Kerr added that it is unclear what exactly is relied upon, which makes the application of the principle uncertain.61 He pointed out that, in Tinsley, Milligan did not need to rely on the illegal part of her agreement (viz. the falsity), but she did rely on the rest of her agreement (viz. the intention that the beneficial interest be held jointly).62 This involved an act of severance, which could be artificial given that it ignores the illegality no matter how large its “looming presence”.63

However, Lord Sumption said that, although the way the reliance principle had been applied in Tinsley was wrong, the reliance principle was in principle sound because it “establishes a direct causal link between the illegality

and the claim”.64 Like the majority’s approach, this was an attempt to distinguish between illegal acts which were “collateral or matters of background only” and those which were more closely connected to the plaintiff’s claim.65

It appears that the majority’s approach is sounder for the following reasons. While Lord Sumption claimed that the reliance test brought more certainty, he did not squarely address any of the concerns listed above. He did not say exactly how the reliance test was to be “[s]horn of the arbitrary refinements introduced by the equitable presumptions”, as he said was necessary.66

It is not even clear that, in Patel, the plaintiff was not relying on illegality: after all, the unjust factor being failure of basis, the plaintiff did have to say that once there was a contract – this would then lead into a debate as to whether the plaintiff needed to rely on the reason why the basis of that contract had now failed (viz. the illegality), or merely the fact that it had failed. This was the very problem that was glossed over in Tinsley. While Lord Sumption did not put forth a robust defence of the reliance principle, Lord Mance sought to salvage the reliance principle by adding the gloss that it matters why a party wishes to rely. He said that reliance in order to enforce an illegal contract should not be allowed, but reliance in order to restore the status quo (i.e. to undo an illegal contract) should be allowed.67 However, this in turn brings us back to the problem of whether, if such a principle is subject to such a caveat which is specific to the law of restitution, it can really be said to be an overarching legal principle. It is therefore time for Singapore law to get rid of the last vestiges of the reliance principle. In Ting, one reason for not applying the reliance principle was that it would encourage parties to “characterise (or, more accurately, ‘dress up’) the facts in order to make the argument”.68 For the reasons given by Lord Kerr, if this reasoning is correct, then it ought to apply to all cases, not just those involving illegal contracts. Legal Certainty Another major issue raised by Patel is that of legal certainty. It has long been recognised that the principle of illegality leads to a result that is “contrary to the real justice, as between [the defendant] and the plaintiff”.69 In practical terms, this means that the illegality principle has the potential to frustrate parties’ expectations.

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Lord Toulson dismissed concerns of such “uncertainty and unpredictability” on the ground that cases involving “people contemplating unlawful activity”, unlike “everyday lawful activities”, are not “areas in which certainty is particularly important”.70

To the contrary, Lord Neuberger held that “criminals are entitled to certainty in the law just as much as anyone else”, as are “innocent third parties”. Moreover, “there is a general public interest in certainty and clarity in all areas of law”, especially since unclarity in the law would only place “more demands … on the services of the courts”.71

Interestingly, this debate was mentioned in Ting, but to the opposite effect. The Court of Appeal held that “some uncertainty” (emphasis in original) is acceptable because it is better than having a rigid rule that would err on the side against, not in favour of, the plaintiff.72 In other words, Ting promotes the following sort of certainty: the starting point is that parties should assume that any contract involving any illegality will be void; and, if it is not, it would be a happy bonus.73

But this does not consider to whom the bonus accrues. Suppose the defendant in Ting claimed that he was repenting because he had discovered that the contract was illegal, but in reality wanted to back out of the deal for the selfish reason that it turned out to be a bad bargain. An argument based on the public interest would be neither here nor there. The public policy against illegality would weigh in favour of the defendant, but the public policy against allowing parties to go back on their word for reasons only of regret would weigh in favour of the plaintiff. Ultimately, this problem is insurmountable as it is inherent in the “balancing” approach in Ting and in Lord Toulson’s judgment. The best way to bring about legal certainty in a principled manner may well be some degree of legislative reform. This, too, was discussed in Patel. The Role of Legislation New Zealand’s Illegal Contracts Act 1970 declares that “every illegal contract shall be of no effect” but grants the Court discretionary power to grant relief, having regard to a list of factors.74 The Singapore Academy of Law’s Law Reform Committee once proposed a similar Act for Singapore.75 The Court in Patel was divided over whether such statutes may be criticised for allowing too much judicial discretion.76

However, we can draw another lesson from the Illegal Contracts Act: that the discretion it lays down is “subject to

the express provisions of any other enactment”.77 In other words, it is open to the Legislature to specify how each criminal offence interacts with the civil law. An example is hinted at in Patel. The provision which criminalised insider trading was s 52 of the Criminal Justice Act 1993. Section 63(2) of that Act provided: “No contract shall be void or unenforceable by reason only of Section 52.”78 On the facts, s 63(2) did not apply because the definition of “contract” did not include the contract in Patel. Nonetheless, the general point in the previous paragraph stands. The Singapore law of illegality ought to embrace this possibility, which already has roots in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (“CDSA”).79 The CDSA requires the Court, on the application of the Public Prosecutor after someone is convicted of one of a number of defined “serious offences”, to order that benefits derived from that criminal conduct be confiscated.80 Incidentally, insider trading is also a “serious offence”.81

Entering into an arrangement to assist another to retain the benefits of criminal conduct (e.g. by transferring them to someone else, using them to acquire property, or using them to secure funds) is also a “serious offence” under the CDSA.82 Thus, fact patterns as in Patel and Tinsley would be caught by the CDSA if the underlying illegality is itself a “serious offence”. In Patel, the Court recognised the potential impact of similar legislation in the UK,83 but parties did not make submissions on it.84 This is therefore an open point which should be borne in mind in Singapore. One might very well ask, given that the Legislature has laid down a regime which would dictate a certain fate for transactions involving certain crimes, what the proper way to interpret the Legislature’s silence as to transactions involving other types of crimes is. Conclusion The Court in Ting described “illegality and public policy” as being “one of the most confused (and confusing) areas in the common law of contract”.85 Lord Toulson similarly said that the law of illegality is fraught with “uncertainty, complexity and sometimes inconsistency”.86 The difficulty is how to rationalise and simplify the law without, as Lord Sumption put it, “simply substitut[ing] a new mess for the old one”.87

With these provisos in mind, Patel has provided many options for future development of the law in Singapore, as

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well as highlighted a few potential pitfalls. Most significantly, each Judge attempted to explain, explicitly or otherwise, to what extent the theory and rules of illegality ought to cut across all areas of private law, as opposed to being limited to a particular part of it. The law in Singapore after Ting, particularly regarding the fate of the “reliance principle”, is in a somewhat fragmented state; the most significant point to take away from Patel is that it is worth taking a step back from individual cases to first address such broader questions about whether such fragmentation is bad, good, or simply unavoidable.

► Benjamin Joshua Ong BA Jurisprudence (Oxon), BCL (Oxon) E-mail: [email protected]

Notes

1 Holman v Johnson (1775) 98 ER 1120, 1121; 1 Cowp 341, 343.

2 Patel v Mirza [2016] 3 WLR 399; [2016] UKSC 42.

3 Cheng Mun Siah v Tan Nam Sui [1979–1980] SLR(R) 611 (HC), at [7].

4 Tinsley v Milligan [1994] 1 AC 340 (UKHL).

5 Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (CA), at [24].

6 ANC Holdings Pte Ltd v Bina Puri Holdings Bhd [2013] 3 SLR 666 (HC), at [80] and [84].

7 Patel, at [99].

8 Patel, at [109].

9 United Project Consultants Pte Ltd v Leong Kwok Onn [2005] 4 SLR(R) 214 (CA).

10 Ooi Han Sun v Bee Hua Meng [1991] 1 SLR(R) 922 (HC).

11 Margaret Fordham, ‘Not so different after all? A causation-based approach to joint illegal enterprises’ [2013] SJLS 202, fn 2; United Project Consultants Pte Ltd v Leong Kwok Onn [2005] 4 SLR(R) 214 (CA).

12 ‘Some Thoughts on Principles Governing the Law of Torts’, Distinguished Guest Speaker lecture at the Protecting Business and Economic Interests: Contemporary Issues in Tort Law conference on 19 August 2016, <https://www.supremecourt.uk/docs/speech-160819-03.pdf> (accessed 17 Feb 2017), at [39].

13 ParkingEye Ltd v Somerfield Stores Ltd [2013] QB 840 (EWCA), at [52] (Toulson LJ).

14 Patel, at [100].

15 Patel, at [109].

16 Patel, at [110].

17 Patel, at [120].

18 Patel, at [120].

19 Patel, at [110].

20 Patel, at [145]–[146].

21 Lord Clarke thought so: Patel, at [212].

22 Patel, at [162].

23 Patel, at [170]–[173].

24 Patel, at [162] read with [172].

25 Patel, at [116].

26 Patel, at [116].

27 Patel, at [174].

28 Patel, at [234].

29 Patel, at [250].

30 Patel, at [262(ii)].

31 Patel, at [262(iv)].

32 Patel, at [264].

33 Patel, at [232].

34 Patel, at [140].

35 Ting, at [23]–[24].

36 Patel, at [247].

37 Patel, at [168].

38 Patel, at [170].

39 Patel, at [170].

40 Patel, at [162].

41 Burrows, Restatement of the English Law of Contract (OUP, 2016), 221–222, cited in Patel, at [82].

42 Top Ten Entertainment Pte Ltd v Lucky Red Investments Ltd [2004] 4 SLR(R) 559 (CA), at [36].

43 Patel, at [198].

44 Patel, at [95]–[96].

45 Ken Glass Design Associate Pte Ltd v Wind-Power Construction Pte Ltd [2003] 1 SLR(R) 34 (HC), at [33(b)] and [35].

46 Public Prosecutor v Intra Group (Holdings) Co Inc [1999] 1 SLR(R) 154 (HC), at [58]; ANC, at [147].

47 Patel, at [241]–[243].

48 United Project Consultants Pte Ltd v Leong Kwok Onn [2005] 4 SLR(R) 214 (CA), at [56] and [60].

49 Patel, at [77].

50 Bilta (UK) Ltd v Nazir (No 2) [2016] AC 1 (UKSC), at [102]; Patel, at [132].

51 Tinsley, at 375C.

52 Lim Leong Huat v Chip Hup Hup Kee Construction Pte Ltd [2011] 1 SLR 657 (HC), at [204]; Boon Lay Choo v Ting Siew May [2013] 4 SLR 820 (HC), at [31].

53 Tinsley, at 371–372.

54 Tinsley, at 376F.

55 Suntoso Jacob v Kong Miao Ming [1985–1986] SLR(R) 524 (CA), at [13].

56 Chee Jok Heng Stephanie v Chang Yue Shoon [2010] 3 SLR 1131 (HC), at [44].

57 Chee, at [45].

58 Ting, at [125]–[126].

59 Patel, at [87] and [110].

60 Patel, at [237].

Kathryn Aguirre Worth Memorial Scholarship The Scholarship was established to honour the memory of Kathryn Aguirre Worth, an American attorney with White & Case LLP, who was on board the ill-fated Silk Air flight MI 185 on 19 December 1997. This scholarship is funded by the Kathryn Aguirre Worth Memorial Foundation.

Terms of the Award. The scholarship will provide a stipend of up to US$15,000 to defray tuition fees for graduate studies at a US law school. The award excludes general expenses.

Eligibility. The scholarship to be awarded in 2017 is open to NUS/SMU LLB graduates from the classes of 2011 to 2016 who will pursue an LLM degree at an accredited law school in the United States.

Application forms are available from:

Faculty of Law National University of Singapore 469G Bukit Timah Road Eu Tong Sen Building Singapore 259776

Singapore Management University School of Law, General Office, Level 4 55 Armenian Street Singapore 179943

You may also download a copy of the application form from: http://law.nus.edu.sg/alumni/docs/kathrynworth.doc http://law.smu.edu.sg/sites/default/files/law/Alumni/Application_Form.doc

The closing date for submission of applications is 31 May 2017.

whitecase.com

White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities. AP201701-006_03

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61 Patel, at [134].

62 Patel, at [136].

63 Patel, at [139]–[140].

64 Patel, at [236], [239].

65 Patel, at [239].

66 Patel, at [239].

67 Patel, at [199].

68 Ting, at [128].

69 Holman v Johnson (1775) 98 ER 1120, at 1121; 1 Cowp 341, at 343.

70 Patel, at [113].

71 Patel, at [158].

72 Ting, at [47].

73 Ting, at [26].

74 Illegal Contracts Act 1970 (New Zealand), ss 6–7.

75 Ting, at [69].

76 Patel, [25] vs. [207] and [259]–[261] .

77 Illegal Contracts Act 1970 (New Zealand), s 7(1).

78 Patel, at [266]–[267].

79 Cap 65A (2000 Rev Ed).

80 CDSA, s 5 read with Second Schedule.

81 CDSA, Second Schedule, item 269.

82 CDSA, s 44 read with Second Schedule, item 1.

83 Patel, at [108], [184], [198], [254].

84 Patel, at [198].

85 Ting, at [3].

86 Patel, at [3].

87 Patel, at [265].

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Significant developments in Singapore’s patents laws are expected to kick in soon in the near future. The key highlights are as follows: 1. Expanding the scope of the 12-month Grace Period2

for exempting novelty-destroying disclosures (implementation date not yet announced; likely last quarter of 2017);

2. New statutory declaration (“SD”) requirement for the Grace Period, pre-grant and post-grant;3

3. Closure of the Foreign Route, also known as the Supplementary Examination route (“SUP”); and

4. Increasing the leeway for withdrawal of an initial examination (“EX”) request and filing a fresh EX request under another route.

What follows is a more in-depth comparison between the current and forthcoming positions.

Upcoming Changes in Singapore’s Patents Law and What They Mean for Businesses and Patent ApplicantsIt is not by chance that Singapore emerged top in Asia, ahead of Japan, and fourth out of 138 countries in the world, behind Switzerland, Finland and Luxembourg, for intellectual property (“IP”) protection, in ranking according to the World Economic Forum’s Global Competitiveness Report 2016–2017.1 Thanks to the progressive updates to our IP laws, Singapore keeps herself keenly abreast of global IP practices and suitably in tuned with evolving business needs. With the recent tabling of the Patents (Amendment) Bill (Bill No 6/2017) in Parliament on 6 February 2017, this article seeks to simplify and digest the significant developments for the benefit of potential patent applicants, local tech start-ups on a lookout for financing, and even the passionate, talented students of today – some of whom may well be coveted tech giants of tomorrow.

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1. Expanding the Scope of the 12-month Grace Period Provision

Currently, applicants are given an opportunity to patent their invention even though it has been disclosed 12 months prior to the filing of the patent application. However, this applies only to three limited situations, namely, where the disclosure: 1. occurred within 12 months prior to the filing date of the

patent application in Singapore;

2. occurred due to a breach of confidence; or

3. was made at a recognised international exhibition or to a learned society.

In all other situations, the disclosure would result in a loss of the ability to obtain a patent in Singapore. In addition, currently, a patent applicant who wishes for the disclosure of the invention at an international exhibition to qualify for the Grace Period is required to inform the Registrar of Patents on the same day of the patent application filing. He is also required to file a certificate issued by the authority responsible for the exhibition, stating that the invention was in fact exhibited there. Upon implementation of the changes in law, all types of disclosure by the applicant will qualify for the Grace Period. The 12-month Grace Period under the new law will be given in all situations, and no longer only in three limited situations. In other words, where an invention has been publicly disclosed within 12 months prior to the patent application filing, Singapore patent rights can still be obtained. There will also no longer be a requirement to submit a certificate from the exhibition authority (for international exhibitions). Below are several interesting observations by patent attorneys of jurisdictions that have similar Grace Period provisions as to how Grace Period has impacted businesses and patent applicants in their countries, how often it is relied on and what requirements, if any, are to be satisfied before relying on such Grace Period: Korean patent attorney Mr Hun Shik Kim4 of Kim & Chang:5

The Grace Period is a useful and important tool to protect an inventor’s right. The Grace Period has been particularly useful for universities, national research institutes and small businesses. It has also been useful for commercialised products having short lifetimes or requiring fast market release. In the above cases, the

Grace Period has allowed earlier disclosure of inventions for the public or faster release of products (which may be helpful for technical innovation) without destroying the novelty element.

Since the Grace Period is relied on for relatively exceptional situations, it is not often invoked. Nonetheless, the number of patent applications relying on the Grace Period has been gradually increasing in Korea. Based on an Association Internationale pour la Protection de la Propriété Intellectuelle (“AIPPI”) article6 published in 2013, about two to three per cent of patent applications filed in Korea in 2012 relied on the Grace Period, which statistics are in line with Mr Kim’s experience in his practice.

If a Korean application or a Patent Cooperation Treaty (“PCT”) application is filed within 12 months from a disclosure, there is no other specific requirement in Korea that needs to be complied. Further, the general Grace Period provision is applicable to all types of disclosures, be it made by an inventor or by a third party without the inventor’s permission. Procedurally, a request to apply the Grace Period must be submitted to the Korean Intellectual Property Office (“KIPO”).7 Under a recent revision of the Korean Patent Act (applicable to applications filed on or after 29 July 2015), an applicant has up to the close of prosecution to file a request to claim the Grace Period.

Australian patent attorney Dr Mathew Lucas8 of Davies Colison Caves Singapore:9

In Australia, a complete application must be filed within 12 months of a disclosure. This includes a PCT application designating Australia. Given that there is no need to declare or provide a written statement that the applicant intends to rely on the Grace Period provision, he is not aware of any data indicating the extent of reliance of the Grace Period provision. Grace Period is often relied upon especially by academic institutions (e.g. universities) where inventors may have inadvertently published before an assessment of the commercial importance of the technology is conducted.

American attorney Mr James M. Slattery10 of Birch, Stewart, Kolasch & Birch, LLP:11

The Grace Period provision is not about excuses, it’s about providing results.

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2. New Declaration Requirement for the 12-month Grace Period

Applicants are to annex a statutory declaration (“SD”) in their patent application form when claiming any of the grounds in the broadened Grace Period prior to grant, in relation to any of the following purposes: 1. a search and examination (“S&E”) request;

2. an EX request;

3. a review of an EX or S&E report request; and

4. responding to a WO. This ensures that applicants have the ability to claim the Grace Period pre-grant of the patent, while maintaining examination efficiency. For international exhibitions, the SD has to state: 1. that the invention was in fact exhibited at an international

exhibition, and identify the invention; and

2. the opening date of the exhibition, and where the first disclosure of the invention did not take place on the opening date, the date of the first disclosure.

For all other circumstances, the SD has to set out all relevant facts why the pre-filing disclosure of the invention should be disregarded. Documentary evidence in support thereof must also be annexed. Further, patentees can also claim grace under any of the grounds in the broadened Grace Period post-grant in proceedings before the Registrar and the Courts. The patentee has to produce evidence to the Registrar/Court to substantiate the ground being claimed. This SD requirement will apply to both national patent applicants and applicants of an international patent application designating Singapore. 3. Closure of the Foreign/Supplementary

Examination Route In the spirit of work-sharing between prescribed offices and reduction of work duplication, the Singapore patent system allows patent applicants to rely on either:

1. a foreign application – Examples include EX reports from USA, EPO (filed in the English Language), Canada (filed in the English Language), UK, Japan, Korea, Australia, New Zealand; or

2. an international application – WIPO’s favourable International Preliminary Report on Patentability (“IPRP”) to apply for a Singapore patent application, with the condition that the application undergoes a Supplementary examination (“SUP”).

This explains the terminology in the labels “Foreign/Supplementary Route”. Currently, the SUP is restricted to checking the corresponding granted patent for certain matters excluding the patentability of the invention’s claims. This seemingly workable solution therefore results in the Singapore patent examiners being constrained by the SUP provision in the Patents Rules, in that they are precluded from objecting to patents that do not fully comply with the Singapore Patents Act. The Intellectual Property Office of Singapore (“IPOS”) is of the view that while the main concepts of novelty, inventiveness and industrial applicability of the subject matter appear to be similar, Singapore’s approach to patentability differs somewhat. Accordingly, this gives rise to the granted foreign corresponding patent being inconsistent with Singapore’s patentability framework. Given that the Foreign Route tends to or has the effect of undermining the quality of patents granted by Singapore, this route will cease to be available when the new laws take effect on 1 January 2020. 4. More Leeway for Withdrawal As it stands now, upon receipt of an unfavourable WO, an applicant may choose not to respond, withdraw that initial EX or S&E request and file a new request for SUP. He may, vice versa, withdraw that initial request for SUP and file a new EX or S&E request. When these changes take effect, an applicant will have an additional chance to withdraw an initial EX request and file a fresh EX request under another route. This is possible even after the applicant has responded to an unfavourable WO, so long as the S&E/EX/SUP report (as the case may be) has yet to be issued. The following is a quick glimpse of what these upcoming changes mean for businesses and applicants who are keen to take advantage of them and harness potential benefits

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in Singapore. We also highlight some issues worth paying attention to. Pitfalls and Practicalities for Businesses and Patent Applicants 1. Even if a pre-filing disclosure is exempted within

the Grace Period in Singapore, the corresponding application in a foreign jurisdiction may be disqualified.

a. Not all jurisdictions worldwide have a similarly broad

Grace Period. Other jurisdictions (e.g. European Patent Convention members) may have narrower Grace Periods, or no Grace Period at all.

b. Even in jurisdictions that do provide a broad Grace Period (e.g. USA,12 Australia,13 Korea),14 pre-filing disclosures will still need to comply with local requirements in order to be exempted. These requirements require further scrutiny to confirm applicability.

2. Successfully relying on the Grace Period does not

mean a right to stop third parties in Singapore. Whilst an applicant may have a pre-filing disclosure successfully exempted within the Grace Period, it does not stop third parties in Singapore15 from using their invention in good faith during the 12-month Grace Period, and before the priority date of the invention.

3. Drafting the content for the required SD may prove tricky. It remains to be seen how thorough the description of the disclosure at the time of filing has to be. If the SD requires technical details to be disclosed, would it not jeopardise the patent applications abroad?

4. The patent application process will be more efficient, more forgiving.

a. Dispensing with the need to obtain a certificate for

disclosures at international exhibitions will likely speed up the application process, giving applicants one less thing to worry about.

b. Inventors and applicants who may have disclosed the invention – either inadvertently or out of a necessity to source for funds – will nevertheless retain the ability to obtain patent rights, but only in Singapore and likely in those countries with Grace Period (e.g. USA, Australia, Korea).

c. Academics and researchers who have disclosed their invention in scientific or technical journal(s)

prior to filing a patent will retain the ability to obtain patent rights, but likewise only in Singapore and in those countries with Grace Period, subject to fulfilment of local requirements.

d. Minors below the contracting age whose inventions have the potential to be patented and who have disclosed their inventions to manufacturers to obtain a prototype without signing a Non-Disclosure Agreement will similarly retain the ability to obtain patent rights in Singapore.

5. Leverage on the SUP route while it remains available for

applications filed before 1 January 2020. In particular, applicants should prepare to file:

a. national applications, before 1 January 2020;

b. international applications entering national phase, before 1 January 2020; and

c. divisional applications having an initiation date, before 1 January 2020.

6. Seek advice on patent filing strategies early. While an

applicant has an additional chance to withdraw an initial EX request and re-file a fresh one to have the invention examined under a different route, even after responding to an unfavourable WO, the unfavourable WO is still a searchable document in the application process for all parties to view. It is uncertain, however, whether a new patent examiner would be assigned for the different route. Advice on patent filing strategies may play a significant role in securing the favourable EX or SUP report highly sought after by investors before money is being pumped in to finance the invention.

7. Filing strategies to claim the benefit of Grace Period. Korean patent attorney Mr Hun Shik Kim shared that since the Grace Periods and the requirements are different globally, applicants should establish a separate filing strategy and timeline for each country to claim the benefit of the Grace Period. Further, he proposed that an international harmonisation of law regarding the Grace Period would be desirable to more effectively guarantee the benefit of the Grace Period. On the other hand, Australian patent attorney Dr Mathew Lucas shared his view that the Grace Period is not part of a filing strategy per se, but rather a “safety net”, should there be an inadvertent disclosure prior to filing. Nonetheless, he noted that countries such as the USA and Canada

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have Grace Period provisions, and such jurisdictions are commercially important to Australian applicants. Therefore, a common filing strategy for Grace Period cases is to file in key jurisdictions like Australia and the USA. While Europe does not (as yet) have Grace Period provisions, a move for Singapore to adopt Grace Period provisions affords greater scope for Singapore applicants (such as universities and research institutes) to protect their inventions domestically. It also encourages foreign applicants to file in Singapore. This brings the law into better alignment with those of the USA, which is a commercially important jurisdiction for Singapore applicants (often more so than Europe). Conclusion Highlighted above are seven possible pitfalls and practicalities. We are of the view that patent applicants should generally avoid making disclosures that unwittingly destroy novelty of their inventions before patent filing. As far as possible, they should avoid relying on the Grace Period, which should be invoked as a measure of last resort. Businesses should promptly seek out patent lawyers who have built up close ties and who engage in regular interactions with other foreign patent lawyers with a view to keep abreast of the requirements of international laws and regulations. They are hence better equipped to provide their clients with advice on suitable global filing strategies. In the new year of 2017, may we look forward to more grace (no pun intended) being given to all earthly and patentable matters.

► Constance Leong BA (National University of Singapore), LLB (Hons), LLM (Queen Mary University of London) Goh Phai Cheng LLC E-mail: [email protected]

The above article first appeared on 1 February 2017 on Goh Phai Cheng LLC website <http://gohpc.com/upcoming-changes-in-singapores-patents-law-what-they-mean-for-businesses-patent-applicants/> after being peer-reviewed by the IP Academy <https://www.ipacademy.com.sg>. Its condensed version has then been re-published on 3 February 2017 at IPA Beacon <https://theipabeacon.com.sg/upcoming-changes-in-singapores-patents-law-what-they-mean-for-businesses-patent-applicants>.

Disclaimer: The opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect any position or policy of Goh Phai Cheng LLC (“the firm”). While every effort has been made to ensure that the information contained in this article is correct, neither the author nor the firm can accept any responsibility for any errors, omissions or for any consequences resulting therefrom. This update is intended merely to highlight matters of interest in the field of Intellectual Property. All the links are last accessed on 13 February 2017. Notes

1 Source: The Global Competitiveness Report 2016–2017 published by the World Economic Forum in Geneva, at page 319 <http://www3.weforum.org/docs/GCR2016-2017/05FullReport/TheGlobalCompetitivenessReport2016-2017_FINAL.pdf>.

2 Proposed new section 14(4) of the Patents Act (Cap 221) <http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=CompId%3Ab214e660-04e1-4efd-b42d-124f7a30a42d%20ValidTime%3A06%2F02%2F2017%20TransactionTime%3A06%2F02%2F2017;rec=0>.

3 Proposed new rule 8 of the Patents Rules <www.ipos.gov.sg/Portals/0/IP%20legislation/2016-10-27%20Annex%20B%20-%20Amendments%20to%20Patents%20Rules%20(002).pdf>.

4 <http://www.ip.kimchang.com/ip/frame2.jsp?lang=2&b_id=112&mode= view&idx=2630>.

5 <http://www.ip.kimchang.com/ip/frame2.jsp>.

6 <aippi.org/wp-content/uploads/committees/233/GR233rep_of_korea.pdf>.

7 <http://www.kipo.go.kr/kpo/user.tdf?a=user.english.main.BoardApp&c=1001>.

8 <http://www.davies.com.sg/people/mathew-lucas>.

9 <http://www.davies.com.sg/>.

10 <http://www.bskb.com/professionals/slattery_james.html>.

11 <http://www.bskb.com/>.

12 <https://www.uspto.gov/web/offices/pac/mpep/s2153.html>.

13 <https://www.ipaustralia.gov.au/patents/understanding-patents/time-and-costs/grace-periods>.

14 <http : / /www.kipo.go.kr/kpo/user. tdf ?a=user.engl i sh .board.BoardApp &c=1003&board_id=kiponews&catmenu=ek06_01_01&seq=1643>.

15 Section 71 of the Patents Act.

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The field of international investment arbitration has recently emerged from relative obscurity to take centre-stage in the public dialogue concerning the pros and cons of globalisation and free trade. During 2016, the public outcry in response to perceived inefficiencies, secretiveness and bias in the current investor-State dispute settlement system resulted in a hasty renegotiation of the EU-Canada Comprehensive Economic and Trade Agreement (“CETA”) and, via the election of Donald Trump as President of the United States, the potential demise of both the Trans-Atlantic Trade and Investment Partnership (“TTIP”) and the Trans-Pacific Partnership (“TPP”).

It is not yet clear what impact this will have on the longer-term global trade and investment landscape. Can the TTIP or TPP agreements can be revived? How will the Regional Comprehensive Economic Partnership (“RCEP”) deal with investor-State disputes? Will CETA will act as a stimulus (and perhaps a template) for a global investment Court, as is now being vociferously pursued by the European Union? It is in this context that the Stockholm Chamber of Commerce (“SCC”) and the Singapore International Arbitration Centre (“SIAC”) have launched their new rules for international

New Year, New Rules: How Singapore and Stockholm are Vying for a Piece of the Investment Arbitration Pie

On 1 January 2017, the Stockholm Chamber of Commerce and the Singapore International Arbitration Centre both introduced new rules applicable to international investment arbitration, potentially marking a new chapter in the institutional administration of investor-State arbitration proceedings.

This article analyses the key provisions of the new rules and compares them with the existing rules commonly adopted in international investment arbitration, including the ICSID, UNCITRAL and PCA Rules. In doing so, the article considers whether the introduction of these rules is likely to be sufficient to address public concerns surrounding efficiency, transparency and impartiality, or whether a more radical shift is on the horizon.

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investment arbitration proceedings (the “SCC Rules”1 and “SIAC IA Rules”2 respectively). Common Themes, Different Approaches Both the SCC Rules and the SIAC IA Rules were developed, following public consultation, to address some of the more compelling criticisms of existing investor-State arbitration mechanisms. In particular, they both attempt to deal with spiraling costs, frivolous claims, impartiality and public interest interventions, by drawing on best-practice from bodies such as the Permanent Court of Arbitration (“PCA”), the International Centre for Settlement of Investment Disputes (“ICSID”) and the United Nations Commission on International Trade Law (“UNCITRAL”). However, there are notable differences in the way each institution has approached these issues. First and foremost, SIAC has decided to adopt a totally separate set of rules for these kinds of disputes, whereas the SCC has simply included an appendix to its general commercial arbitration rules with provisions specific to investment disputes. Whether this difference will matter in practice remains to be seen. However, a second and more important distinction is that the SIAC IA Rules apply wherever the parties have agreed to their application (whether that is in a treaty, statute, contract or any other instrument) and will not be subject to objective criteria such as the requirement for an “investor” or “investment”, as is the case with ICSID proceedings.3 In contrast, the specific investment arbitration provisions of the SCC Rules only apply where there is a treaty providing for arbitration of disputes between an investor and a State.4 It therefore seems likely that the SIAC IA Rules could be more widely adopted, especially in an environment where bilateral and multilateral investment treaties are falling out of favour and investors may accordingly demand assurances through other legal instruments. Appointment and Dismissal of Arbitrators The SCC Rules and the SIAC IA Rules both include a requirement that arbitrators are independent and impartial, as well as a provision under which sole or presiding arbitrators should not have the same nationality as either of the parties, unless otherwise agreed between the parties.5 Both sets of rules also anticipate the problem of non-participation by the respondent and include default provisions where one party fails to appoint its arbitrator and the institution has to step-in. The SCC Rules do not set out a specific timeframe for such appointments, but the default provisions under the SIAC IA Rules apply if a party fails to make a nomination within 35 days.6 This is in-line with the 30-day window provided for under the equivalent

UNCITRAL and PCA Rules,7 but is a substantially shorter timeframe than provided for in the ISCID Rules, which allow 90 days.8

The grounds for challenging an arbitrator are similar in both sets of rules; namely, where there are justifiable doubts as to the arbitrator’s impartiality or independence or if the arbitrator does not possess any requisite qualification on which the parties have agreed.9 Unlike the ICSID Rules, any challenge is determined by the institution rather than the tribunal itself, which potentially (and specifically, in the case of the SIAC IA Rules) allows the proceedings to continue while a challenge is being considered, thus reducing the risk of challenges being brought as a delay tactic.10 This is further supplemented in both sets of rules by a strict limit on the timing of any such challenges. In contrast to ICSID’s requirement that a challenge must be brought “promptly and, in any event, before the proceedings are declared closed”, the SIAC IA Rules provide a 28-day window from the time of appointment (or the ground for a challenge becoming known) and the SCC Rules provide a stringent 15-day window.11 Given that many ICSID proceedings have been beset by late (and often repeated) challenges, this is undoubtedly a positive development. Summary Procedure and Emergency Arbitrators Drawing on recent developments in multilateral trade and investment agreements such as CETA, both sets of rules provide for early dismissal of claims where they are deemed to be frivolous or unmeritorious. The SIAC IA Rules allow for a claim to be struck out where it is (i) manifestly without merit, (ii) manifestly outside the jurisdiction of the tribunal, or (iii) manifestly inadmissible.12 This clearly draws upon the ICSID Rules and corresponding case law.13 In contrast, the equivalent provisions in the SCC Rules (which also apply to commercial arbitrations) provide a broader right to apply for a summary determination, citing by way of example circumstances where (i) an allegation material to the outcome of the case is manifestly unsustainable, (ii) even if the alleged facts by one party are assumed to be true, no award could be rendered in favour of that party under the applicable law, or (iii) any issue material to the outcome of the case is suitable for determination by way of summary procedure.14

Uniquely among rules applicable to investment arbitration, both the SIAC IA Rules and the SCC Rules provide for an emergency arbitrator to be appointed prior to the constitution of the tribunal.15 This is in stark contrast to the approach taken by the International Chamber of Commerce (“ICC”) in its latest arbitration rules, which specifically exclude the ability of the parties to apply for an emergency arbitrator

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in cases involving treaties.16 Allowing for the appointment of an emergency arbitrator might arguably cut across the mandatory cooling-off period common among investment treaties. In practice, it therefore seems likely that States will seek to exclude these provisions in any agreements referring to either the SCC Rules or the SIAC IA Rules.17

Third Party Interventions In response to the widespread criticism that investment tribunals are clandestine, unaccountable and pay little heed to important public policy issues, both SIAC and the SCC have adopted provisions permitting amicus curiae interventions in certain limited circumstances. These largely adopt the drafting used in the most recent versions of the ICSID and UNCITRAL Rules,18 as well as several recent trade and investment agreements. While the wording varies slightly between the SIAC IA Rules and the SCC Rules, they both provide a prima facie right for non-disputing parties to a treaty to provide written submissions on the correct interpretation of that treaty, provided that these are relevant to the dispute.19 In addition, both sets of rules permit third parties (whether a party to the treaty or not) to apply to the tribunal for permission to make written submissions, provided that they have a “sufficient” (SIAC IA Rules) or “significant” (SCC Rules) interest in the outcome of the proceedings and assist the tribunal in the determination of a relevant factual or legal issue by bringing a perspective, particular knowledge or insight that is different from that of the parties.20 Interestingly, unlike the ICSID and UNCITRAL Rules, both the SIAC IA Rules and SCC Rules also expressly enable the tribunal to seek input from third parties ex proprio motu, provided that the parties have been consulted.21

Third Party Funding One issue that has not expressly been dealt with in any of the rules typically applied to investment arbitrations is the treatment of third party funding. The SIAC IA Rules therefore break the mould in this respect, by providing for the tribunal (i) to order disclosure of third party funding arrangements, including the identity of the funder, its interest in the outcome of proceedings and/or whether the funder has committed to undertake adverse costs liability, and (ii) to take into account any third party funding arrangements when apportioning the costs of the arbitration. It is noteworthy that the original draft of the rules that was circulated for public consultation in February 2016 also included a provision under which the tribunal could make a costs award against a third party funder, if appropriate.22 Given that this proposal was not

adopted in the final draft, it seems that parties to proceedings under the SIAC IA Rules will instead have to rely on the cumulative effect of provisions for funding arrangements to be disclosed and for security for costs to be ordered. No equivalent provision is found in the SCC Rules, but they do grant the tribunal the power to order interim measures (including security for costs, in exceptional circumstances) and a broad discretion to consider “any other relevant circumstances” when making a costs award.23

Transparency and Confidentiality One significant criticism of investment arbitration that is not addressed in either the SIAC IA Rules or the SCC Rules is the issue of transparency. This is perhaps understandable, given these institutions’ primarily commercial focus and the stakeholders that they generally represent. In stark contrast to the recently adopted UNCITRAL Rules on Transparency in Treaty-based investor-State Arbitration 2014, which provide for transparency save in exceptional circumstances (i.e. commercially sensitive information or national security interests), both sets of rules treat confidentiality as the default option. This raises some interesting practical questions, especially in relation to third party interventions. First, it is unclear how interested parties would become aware of the proceedings in the first place if all details are kept confidential. Second, it seems unrealistic to expect non-governmental organisations or other civil society groups to participate in proceedings without consultation with their members and/or the public in general. This would be very difficult unless confidentiality was waived in relation to the key factual and legal issues in dispute between the parties. Clearly this tension between transparency and confidentiality was considered during the consultation phase, since the original proposal from SIAC anticipated the publication of the identity of the parties and their legal counsel.24 Instead, the final rules permit disclosure only of the nationalities of the parties, as well as the identities of the tribunal members and the treaty or other legal instrument under which the arbitration has been commenced.25

Investment Wars: A New Dawn? It is unclear to what extent SIAC and the SCC coordinated the simultaneous release of their new rules, or whether they intend to start an arms race to corner the market for investment arbitration. It is similarly uncertain whether States (who are ultimately likely to have the biggest say in whether such rules are adopted) have any appetite for yet

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more rules to add to the “menu” of options typically included in international investment treaties. The SCC certainly has a first-mover’s advantage, already positioned in second place behind ICSID in terms of the volume of investor-State arbitrations previously administered.26 It also benefits from being one of the existing options set out in the Energy Charter Treaty (“ECT”), which has recently provided a ready source of new investment arbitrations. However, Singapore is quickly emerging as a dominant force in international commercial arbitration and the launch of the Singapore International Commercial Court demonstrates a growing appetite for high-value, high-profile disputes to be heard within the jurisdiction. The recent case of Sanum v Laos27 further demonstrates the Singapore Courts’ willingness and ability to deal with complex issues of public international law when acting as a supervisory Court in international investment arbitration proceedings. While Stockholm emerged as a neutral venue for the resolution of East-West trade disputes during the Cold War and subsequently built on this reputation to expand into investment arbitration, Singapore is well-situated for the new wave of investments from China and other Asia-Pacific economic heavyweights into Africa and the Indian subcontinent. It remains to be seen whether the alternative approach taken by the SCC and SIAC, when compared to ICSID and UNCITRAL, will be sufficient to encourage the widespread adoption of their new rules by States in future investment treaties and contracts. It is even less certain whether the subtle distinctions between the two sets of rules will lead to one being favoured over the other. There is also the more esoteric question of whether the proliferation of different rules is a positive development, providing greater choice and competition among institutions, or a negative development, exacerbating the fragmentation of international law. But in the absence of a consensus among States as to the merits or characteristics of a global investment Court, it is reassuring to see that some steps are being taken to allay the more credible and pertinent public concerns surrounding investment arbitration.

► Richard Allen Senior Associate, Dispute Resolution Practice Group Baker McKenzie Wong & Leow E-mail: [email protected]

Notes

1 Available at <http://www.sccinstitute.com/media/168084/arbitration-rules_eng_17_final.pdf>.

2 Available at <http://www.siac.org.sg/images/stories/articles/rules/IA/SIAC%20Investment%20Arbitration%20Rules%20-%20Final.pdf>.

3 SIAC IA Rules, Recital iii and Rules 1.1 & 1.2; ICSID Convention 1966, Article 25(1).

4 SCC Rules, Appendix III Article 1(1).

5 SIAC IA Rules, Rules 10.1 and 5.7; SCC Rules, Articles 18 and 17(6).

6 SIAC IA Rules, Rule 7.2; SCC Rules 2017.

7 UNCITRAL Arbitration Rules 2013, Article 9.2; PCA Arbitration Rules 2012, Article 9.2.

8 ICSID Rules 2006, Rule 4.

9 SIAC IA Rules, Rule 11.1; SCC Rules, Article 19(1).

10 ICSID Rules 2006, Rules 9(4) and 9(6); SIAC IA Rules, Rules 12.4 and 13.1; SCC Rules, Article 19(5).

11 ICSID Rules 2006, Rule 9(1); SIAC IA Rules, Rule 12.1; SCC Rules, Article 19(3).

12 SIAC IA Rules, Rule 26.1.

13 ICSID Rules 2006, Rule 41(6); e.g. Trans-Global Petroleum Inc. v Jordan, ICSID ARB/07/25.

14 SCC Rules, Article 39.

15 SIAC IA Rules, Rule 27.4 and Schedule 1; SCC Rules, Appendix II.

16 ICC Rules 2012, Article 29(5); ICC Arbitration Commission Report on Arbitration Involving States and State Entities under the ICC Rules of Arbitration (01 Oct 2015), Paragraphs 51 and 52.

17 The SIAC IA Rules require specific consent to the emergency arbitrator provisions, whereas under the SCC Rules the parties are deemed to have agreed to the emergency arbitrator provisions unless otherwise indicated.

18 ICSID Rules 2006, Rule 37(3); UNCITRAL Rules on Transparency in Treaty-based investor-State Arbitration 2014, Articles 4 and 5.1.

19 SIAC IA Rules, Rule 29.1; SCC Rules, Appendix III Article 4.

20 SIAC IA Rules, Rules 29.2 and 29.3; SCC Rules, Appendix III Article 3.

21 SIAC IA Rules, Rule 29.2; SCC Rules, Appendix III Article 3(4).

22 Public Consultation on Draft SIAC Investment Arbitration Rules (01 Feb 2016), Draft Rule 34.

23 SCC Rules, Articles 37, 38 and 50.

24 Public Consultation on Draft SIAC Investment Arbitration Rules (01 Feb 2016), Draft Rule 37.2.

25 SIAC IA Rules, Rule 38.2.

26 See <http://www.sccinstitute.com/dispute-resolution/investment-disputes/>.

27 Sanum Investments Ltd v Government of the Lao People’s Democratic Republic [2016] 5 SLR 536.

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Your duty to act in the best interests of your client includes a responsibility to maintain the confidentiality of any information which you acquire in the course of your professional work. You must not knowingly disclose any information which is confidential to your client and is acquired by you (whether from your client or from any other person) in the course of your engagement (rule 6(2) Legal Profession (Professional Conduct) Rules (“PCR”)). Exceptions to this duty are set out in rule 6(3) PCR. You may disclose confidential information in certain circumstances described in rule 6(3)PCR, including if your client authorises the disclosure; or if you are permitted or required by law, by an order of court, or by a tribunal to make the disclosure. The end of the retainer with your client is not an exception. The duty of confidentiality owed by you to your client continues even after the termination of the retainer. A useful case study on client confidentiality is a matter that was reported in New Zealand Law Society’s monthly publication, LawTalk (February 2017):

A lawyer, C, who sent a woman’s will to her husband without the woman’s consent, has been reprimanded by a lawyers standards committee and ordered to pay the woman $5,000 compensation. The LCRO (Legal Complaints Review Officer) increased this to $6,000 on review and confirmed the committee’s decision to reprimand C. Mr and Mrs B decided to sell a property they jointly owned and Mr B met C at the offices of the firm, which had acted for them on the purchase of the property. Mrs B was not present at the meeting. During the meeting, Mr B asked if the wills of himself and his wife, which they had executed at the firm, were still on file and was told that they were. Mr B asked for some paperwork to be emailed to him. C instructed her law clerk to send both Mr and Mrs B’s wills as attachments to Mr B’s email address. The standards committee noted that it was uncontested that no contact was made with Mrs B to check if the release of her will to her husband was acceptable.

Let’s Keep it ConfidentialAs a result of the disclosure, Mr B became aware of a provision in Mrs B’s will that he was not previously aware of. Mrs B was extremely distressed and angry at what she described as a “very serious” breach of confidentiality and the damage that had caused to a marriage of 44 years. The committee noted Mrs B’s description of the consequences of breach, which led to her experiencing considerable turmoil. Mrs B “was entitled absolutely to confidentiality surrounding her will,” the committee said. “She recounted having instructed her lawyer at the time of making her will that it be marked to the effect ‘private and confidential, to be opened only in the event of my death’, of which there is no record, but her will is in any case private and confidential and any such instruction would be superfluous. By sending Mrs [B]’s will to anyone without her instructions to do so, [C] breached her obligations under Chapter 8 RCCC (Rules of Conduct and Client Care) and has done so to such a degree as to be guilty of unsatisfactory conduct.” The committee also said it found Mrs B was harmed by the breach of confidentiality. As well as the reprimand and compensation order, the committee ordered C to apologise to Mrs B in writing for the unsatisfactory conduct and to pay the Law Society $1,000 costs.

(Source: “Reprimanded for breaching confidentiality”, LawTalk Issue 903 – February 2017, New Zealand Law Society.) You should not assume that a client would not object to the disclosure of confidential information to another party. You require your client’s consent even though the other party is your client’s spouse, or is related to your client. By developing and implementing polices and controls in relation to client confidentiality for your law practice, you would reduce the risks of confidential information being disclosed without client’s consent.

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The management of a law practice has a responsibility under the PCR to: 1. Take reasonable steps to ensure that the law practice

has in place adequate systems, policies and controls for ensuring that the law practice and the lawyers working in the law practice, comply with the applicable written law, and any applicable practice directions, guidance notes and rulings relating to client confidentiality (rule 35(4)).

2. Take reasonable steps to ensure that the systems, policies and controls include, but are not limited to training all relevant employees of the law practice (rule 35(5)(a)).

Each law practice must develop its own systems, policies and controls that are appropriate for its circumstances. Rule 35(1)(c) PCR allows a law practice to develop systems relating to client confidentiality that are appropriate to the size and complexity of the law practice, the nature of the work undertaken, and the number and qualifications of its employees. The following are some examples of systems, policies and controls relating to client confidentiality that a law practice may consider adopting or modifying to suit its circumstances: 1. All lawyers must be familiar with rule 6 PCR.

2. To include in the job description of all lawyers and staff, the requirement to ensure confidentiality and security of all of the law practice’s and client documentation and information.

3. All outgoing e-mails must contain a confidentiality warning to warn all unintended recipients.

4. Where an e-mail contains confidential information, you should obtain the prior informed consent of the client on the use of e-mail as a means of delivery of the confidential information.

5. If storage systems are outsourced, confidentiality must be protected by entering into nondisclosure agreements or confidentiality clauses and using outsource partners in jurisdictions that generally uphold such agreements and clauses. If the law practice uses cloud services and confidential information is stored on a cloud storage service, the law practice must be aware of any risks and have in place appropriate safeguards to ensure that client confidentiality is preserved.

6. The use of the law practice’s IT systems to create, copy, transmit or disseminate inappropriate, illegal or offensive material is strictly prohibited. Inappropriate material (whether text, image, video, data or programs) includes material that contains or involves breach of client confidentiality.

7. Issues of client confidentiality in the reception area must be kept in mind - avoid discussing client matters in the reception area, including the lift lobby, and common areas. If there is to be any discussions of confidential information, an office or meeting room must be used.

In this age of social media, you must be especially careful. When you use social media to send messages or post comments, always bear in mind the duty maintain client confidentiality. The Law Society of England & Wales makes some interesting observations in its Social Media Practice Note (18 June 2015):

Unlike other more traditional forms of communication social media enables professionals, both nationally and internationally, to more easily interact with each other. Usually this sort of engagement will encompass current issues, affairs and developments in the legal profession. However, individuals are also able to post comments or opinions about clients, their cases and other legal professionals. You should consider that in doing so you may be breaching the requirements on client care, confidentiality, conflicts of interests and publicity in the SRA Code, and should exercise caution in this area.

• For example: You may be engaged in a general

discussion about access to justice issues and, while posting a comment about your previous experiences, disclose information about a previous case you have worked on, thus breaching client confidentiality.

It is important that everyone in your law practice understands the importance of preserving client confidentiality. You should always be conscious and vigilant about information which is confidential to your client and the restrictions against its disclosure. This mindset should permeate throughout your law practice. Knowledge Management DepartmentThe Law Society of Singapore

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To assist in research and as an aid in convergence of commercial common law, these are brief notes of commercial decisions of the intermediate and final appellate Courts of Australia, New Zealand, Singapore, Hong Kong, Canada and the United Kingdom. More detailed head notes are available at www.fordsreports.com. AGENCY – Lender bears loss of fraud by agent clothed with authority – Alberta The Alberta Court of Appeal has held that a lender should bear the loss of his broker’s absconding with a loan repayment because the lender clothed the broker with authority as his agent. The address of the lender on the registered mortgage was “c/o” the broker, the Land Titles Act entitled third parties to rely on the register and said that payout statements should be obtained from the address for payment on the mortgage, and the lender knew the broker was signing payout statements but did not stop her or qualify her authority: Toronto-Dominion Bank (TD Canada Trust) v Currie (http://fordsreports.com/wp-content/uploads/2017/02/14-Toronto-Dominion-Bank-TD-Canada-Trust-v-Currie-2017-FICR-14.pdf) at [20]. It is for someone relying on an agent’s action to show the agent had ostensible authority, but for the principal to show that there is some limitation on their agent’s actual authority which was conveyed to the person relying. Here the agent had actual authority to send payout statements and receive payment and the lender principal had not conveyed any limitation to the third parties.

Cameron Ford’s International Commercial Cases

APPEAL – Appellate review of contract interpretation – Manitoba The Manitoba Court of Appeal has applied the Canadian Supreme Court’s ruling that the standard of review of a trial Judge’s interpretation of a contract is on the standard of palpable and overriding error unless there is an extricable question of law or the contract is a standard form. If either of the latter, the standard of review is correctness: Corydon Village Mall Ltd v TEL Management Inc (http://fordsreports.com/wp-content/uploads/2017/01/Corydon-Village-Mall-Ltd-v-TEL-Management-Inc-2017-MBCA-8-CanLII-2017-FICR-9.pdf). Extricable questions of law include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. Standard form contracts are where there is no negotiation and one party effectively says “take it or leave it”. They can also be where the contract is widely used. APPEAL – Inadequate reasons not free-standing appeal ground – Canada The British Columbia Court of Appeal has reiterated that the failure to give adequate reasons is not a free-standing ground of appeal: Ecobase Enterprises Inc v Mass Enterprise Inc (http://fordsreports.com/wp-content/uploads/2017/01/Ecobase-Enterprises-Inc.-v.-Mass-Enterprise-Inc.-2017-BCCA-29-CanLII-2017-FICR-7.pdf) 2017 BCCA 29 (CanLII).

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Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. The duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confer entitlement to appellate intervention”. A decision should not be set aside if the record permits meaningful appellate review. ARBITRATION – When is litigation after arbitration an abuse? – UK The Court of Appeal has considered the use of findings in arbitral awards in later related litigation and whether that litigation is an abuse of process. The Court said that findings in awards cannot be admitted in later litigation as conclusive of the facts, but can be admitted on an application that the litigation is an abuse of process: Michael Wilson & Partners Limited v Sinclair and others http://fordsreports.com/wp-content/uploads/2017/01/Michael-Wilson-Partners-Limited-v-Sinclair-2017-FICR-3.pdf [2017] EWCA Civ 3. Prevention of abuse of process serves the twin polices of ensuring no person is vexed twice for the same reason and the public interest in not having issues repeatedly litigated. There is no prima facie assumption that proceedings on issues that have been already decided amount to an abuse, and the Court’s power is only used where justice and public policy demand it. To determine whether proceedings are abusive the Court must engage in a close “merits based” analysis of the facts, taking into account the private and public interests involved, and focusing on the crucial question of whether in all the circumstances a party is abusing or misusing the Court’s process. It will rarely be an abuse of process if the parties or their privies are different in the two proceedings, unless it would be manifestly unfair to a party in the later proceedings that the same issues should be re-litigated, or if there is an element of vexation in the use of litigation for an improper purpose. It will be rare that Court proceedings against a non-party to an arbitration will be an abuse of process. There is no “hard edged” rule that a prior arbitration award cannot found an argument that subsequent litigation is an abuse of process.

ARBITRATION – Tread lightly to avoid “step in the proceedings”– Singapore The Singapore Court of Appeal has held that an application to strike out proceedings on the merits will almost always be a step in the proceedings to preclude the granting of a stay of litigation in favour of arbitration under s 6(1) of the International Arbitration Act: L Capital Jones Ltd and another v Maniach Pte Ltd (http://fordsreports.com/wp-content/uploads/2017/02/11-L-Capital-Jones-Ltd-v-Maniach-Pte-ltd-2017-SGCA-3-2017-FICR-11.pdf). A pragmatic approach should be taken to assessing whether a step in the proceedings has been taken, and the Court should look at the substance of what has occurred and not place “an undue premium on procedural subtleties rather than on the substance of the issue at hand”. One of two defendants had applied to strike out litigation on the merits and sought a stay under the Act in the alternative. It filed affidavits and submissions on the strike-out application but did not proceed at the hearing and instead pressed only the stay application. This was held to be a step for the purpsoes of s 6(1). ARBITRATION – Litigation lock-step – attributing steps to co-defendant – Singapore The Singapore Court of Appeal has exceptionally held that the step of one defendant in proceedings was to be attributed to a co-defendant who had not even been served with the statement of claim. That step was filing an application to strike out proceedings on the merits with the effect of disentitling both the applicant and the un-served co-defendant from applying for a stay in favour of arbitration under s 6(1) of the International Arbitration Act: L Capital Jones Ltd and another v Maniach Pte Ltd (http://fordsreports.com/wp-content/uploads/2017/02/11-L-Capital-Jones-Ltd-v-Maniach-Pte-ltd-2017-SGCA-3-2017-FICR-11.pdf). The Court found that the relief was sought on behalf of the un-served co-defendant and the applicant was a shell company controlled by the co-defendant who had the real interest in the application, greater than the applicant’s. CONTRACT – “Subject to contract” bites back – UK The Court of Appeal has held that a contract was not formed in a phone call following a letter of offer marked “WITHOUT PREJUDICE – SUBJECT TO CONTRACT”. There was no evidence of the unequivocal wavier of that condition required to form a contract and the parties’ conduct after the call clearly showed no contract had been concluded: Global

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Asset Capital Inc v Aabar Block SARL (http://fordsreports.com/wp-content/uploads/2017/02/12-Global-Asset-Capital-Inc-and-anor-v-Aabar-Block-S.A.R.L.-and-others-2017-FICR-12.pdf). The Court of Appeal held that the Court can look at conduct after the alleged formation of a contract to determine whether a contract was formed. “Subject to contract” negates contractual intention and the acceptance of such an offer only amounts to an agreement to agree. Waiver of that condition must be unequivocal and the Court will not lightly so hold. CONTRACT – No inconsistent implied term – UK The Court of Appeal has refused to imply a term into a contract where it would be inconsistent with the operation of an express term: Irish Bank Resolution Corporation Ltd v Camden Market Holdings Corp & Ors (http://fordsreports.com/wp-content /up loads/2017/02/13- I r ish-Bank-Resolution-Corporation-Ltd-v-Camden-Market-Holdings-Corp-Ors-2017-FICR-13.pdf). A borrower said the bank’s marketing of loans was contrary to an implied term in the loan agreement that the bank would not do anything to hinder the borrower’s marketing of the properties. There was an express term in the loan agreement which allowed the bank to market the loans for sale and to provide information about them to any potential buyer. The Court reiterated that terms are not to be implied lightly, especially in long and detailed contracts and where the contract makes express provision about the issue. There are two forms of inconsistency between express and implied terms – linguistic and substantive. Here there was no linguistic inconsistency but the express and the implied terms could not operate together, therefore there was substantive inconsistency. CONTRACT – Penalty test evolving in common law world The British Columbia Court of Appeal has held that an exit fee payable to a broker on default under a loan was not a penalty under the common law or s 8 of the Interest Act. The Court applied the test of the House of Lords in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd and asked whether the 0.67% fee was a genuine pre-estimate of damages, holding that it was open to the trial judge to find that it was: Bankers Mortgage Corporation v Plaza 500 Hotels Ltd (http://fordsreports.com/wp-content/uploads/2017/02/15-Bankers-Mortgage-Corporation-v.-Plaza-500-Hotels-Ltd-2017-FICR-15.pdf).

The Court said that where a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some serious and others less so, there is a presumption (but no more) that it is a penalty. That presumption may be displaced.

There was no discussion of the recent contretemps between the UK Supreme Court and the High Court of Australia in Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30, Cavendish Square Holding BV v Makdessi [2015] UKSC 67; [2015] 3 WLR 1373; [2016] 2 All ER 519, and finally in http://fordsreports.com/wp-content/uploads/2016/10/Paciocco-v-Australia-New-Zealand-Banking-Group-Ltd-2016-APLR.pdf; 90 ALJR 835. In Andrews, the High Court held that there subsisted, independently of the common law rule, an equitable jurisdiction to relieve against any sufficiently onerous provision which was conditional upon a failure to observe some other provision, whether or not that failure was a breach of contract. It applied the Dunlop test of whether the detriment was a genuine pre-estimate of loss. The effect of Andrews was that a provision is a penalty if it is a detriment arising on breach or non-performance of a primary or secondary obligation and is unconscionable and extravagant compared to the greatest loss the innocent party could conceivably prove In Cavendish Square, the Supreme Court said Andrews was “a radical departure from the from the previous understanding of the law”, which was that a provision is a penalty if it is a detriment arising only on breach of a secondary obligation and is unconscionable and extravagant compared to the greatest loss the innocent party could conceivably prove. It must be noted, though, that the notion of legitimate interest itself comes from Dunlop, which held that the innocent party’s legitimate interest in that case was measured by the greatest loss if could conceivably prove However, Cavendish Square itself departed from the previous law in holding that a detriment is a penalty if it is out of all proportion to any legitimate interest of the innocent party in the enforcement of the secondary obligation. This is instead of its being unconscionable and extravagant compared to the greatest loss the innocent party could conceivably prove. In Paciocco, the Australian High Court defended its decision in Andrews but adopted the Supreme Court’s “legitimate interest” test in place of the “genuine pre-estimate of loss”.

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The result is that it is more difficult for a detriment to be a penalty in the UK than in Australia because in the UK a penalty is only on a secondary obligation. Singapore adheres to the UK position, with Allplus Holdings Pte Ltd v Phoon Wui Nyen [2016] SGHC 144 referring only to Cavendish as to the penalty doctrine applying to secondary obligations, without any mention of Andrews. Allplus also applied the “legitimate interest” test. In 2015, before Cavendish was delivered, the Singapore Court of Appeal applied the “genuine pre-estimate of loss” test and did not have occasion to consider the primary/secondary obligation issue in Andrews. For the time being, Hong Kong applies the Dunlop “genuine pre-estimate of loss” test, with neither the Court of Appeal nor Court of Final Appeal having had occasion to revisit the issue since Ip Ming Kin v Wong Siu Lan CACV [2013] HKCA 252. The District Court referred to Cavendish in Tictas System Automation Ltd v Explorer Travel Ltd [2016] HKDC 1581 but followed Ip Ming which did not need to consider the primary/secondary obligation issue in Andrews. New Zealand appellate courts have not considered the issue of penalties since Amaltal Corporation Ltd v Maruha (NZ) Corporation Ltd [2004] 2 NZLR 614 (CA), before the contentious developments, and recited the standard Dunlop test. CONTRACT INTERPRETATION – Pre-contractual negotiations and drafts admissible – Ontario The Ontario Court of Appeal has considered negotiating e-mails and drafts of a lease to determine the basement of a building was included in an inconsistent and contradictory lease: 1079268 Ontario Inc v GoodLife Fitness Centres Inc (http://fordsreports.com/wp-content/uploads/2017/01/1079268-Ontario-Inc.-v.-GoodLife-Fitness-Centres-Inc.2017-ONCA-12-2017-FICR-4.pdf). The lease was inconsistent and contradictory as to whether the basement was included. The Court said the application Judge erred in not considering e-mails and drafts of the lease suggesting it was to be included. DECLARATIONS – Commercial declarations if useful and serve justice – UK The Court of appeal commented generally on the principles of declarations in commercial disputes, particularly where a statutory remedy is theoretically available: Fujifilm Kyowa

Kirin Biologics Co Ltd v Abbvie Biotechnology Limited & Anor (http://fordsreports.com/wp-content/uploads/2017/01/Fuj i f i lm-Kyowa-Ki r in-Bio log ics-Co-Ltd-v-Abbvie-Biotechnology-Ltd-2017-FICR-2-3.pdf); [2017] EWCA Civ 1. The Court said declaratory relief in commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. Instead it should be kept in proper bounds by the exercise of the Court’s discretion. When considering granting a declaration, the Court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons. It is no longer necessary to have a “claim of right”, but its existence is relevant. If a statutory remedy is available, it should be pursued rather than a declaration unless it is not presently available in the circumstances, is being frustrated or does not provide the relief the claimant needs. A declaration may be refused if it is a collateral attack or a disguised challenge which should be mounted by way of the statutory remedy. The eventual availability of the statutory remedy may be relevant to the question of whether a declaration should be granted in the exercise of the court’s discretion. ENFORCEMENT – Enforcing foreign judgments before appeal – Marevas and stay – Ontario In Independence Plaza 1 Associates LLC v Figliolini (http://fordsreports.com/wp-content/uploads/2017/01/Independence-Plaza-1-Associates-L.L.C.-v-Figliolini-2017-ONCA-44-2017-FICR-8.pdf), the Ontario Court of Appeal said that in the ordinary course, judgment creditors will wait until the appeal process has run its course before commencing proceedings to enforce the judgment in Ontario. However, the creditor may apply for a Mareva injunction in Ontario before a proceeding on the foreign judgment is commenced in and while the foreign appeal process is still running its course. Conversely, if the creditor obtains an Ontario judgment based on the foreign judgment before the appeal process is exhausted, the creditor may apply for a stay of the Ontario judgment pending exhaustion of the foreign appeals. ENFORCEMENT – Time limit for enforcing foreign judgments – Ontario The Ontario Court of Appeal has held that the time limit for suing in Ontario on a foreign judgment runs from when it was “discovered” that suing in Ontario was appropriate as a result of the Limitations Act 2002. In most cases this will be

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when the final appeal judgment is given or perhaps when the creditor discovers the debtor has assets in Ontario to execute against: Independence Plaza 1 Associates LLC v Figliolini (http://fordsreports.com/wp-content/uploads/2017/01/Independence-Plaza-1-Associates-L.L.C.-v-Figliolini-2017-ONCA-44-2017-FICR-8.pdf). ESTOPPEL – Promissory estoppel elements – Canada In Ecobase Enterprises Inc v Mass Enterprise Inc (http://fordsreports.com/wp-content/uploads/2017/01/Ecobase-Enterprises-Inc.-v.-Mass-Enterprise-Inc.-2017-BCCA-29-CanLII-2017-FICR-7.pdf); 2017 BCCA 29 (CanLII), the British Columbia Court of Appeal has reiterated the four elements of promissory estoppel in Canada of: 1. an existing legal relationship;

2. a promise or assurance made by the other party and intended to affect their legal relationship;

3. reliance on the promise or assurance; and

4. a change in position to the party’s detriment. The court did not have to determine whether the elements were made out in this case as the appellant only appealed on the basis of the sufficiency of the judge’s reasons. LEASES – Landlord’s refusal of prohibited use not unreasonable – Manitoba The Manitoba Court of Appeal has held that a trial judge’s decision that a prohibited use under a lease is an exception to the obligation of the landlord not to unreasonably withhold consent to a change of use request did not involve a palpable and overriding error or an extricable question of law: Corydon Village Mall Ltd v TEL Management Inc (http://fordsreports.com/wp-content/uploads/2017/01/Corydon-Village-Mall-Ltd-v-TEL-Management-Inc-2017-MBCA-8-CanLII-2017-FICR-9.pdf). Had there been an extricable question of law, the Court would have been able to consider the correctness of the decision. An extricable question of law includes the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. Given that fairly flexible inclusive definition, it would have been relatively simple for the Court to find an extricable question of law had it considered the Judge had erred in coming to that conclusion.

LEASES – When is a lease a subdivision? – Alberta The Alberta Court of Appeal has held that the lessee’s degree of control over land is the critical factor in determining whether a lease is an illegal subdivision. The length of the term of the lease and the lump sum payment of rent are not determinative: Paskal Holdings Inc v Loedeman (http://fordsreports.com/wp-content/uploads/2017/01/Paskal-Holdings-Inc-v-Loedeman-2017-ABCA-29-CanLII-2017-FICR-10.pdf). A new owner was trying to evict an elderly couple who had sold their quarter section of land (160 acres) to a prior owner and leased back 10 acres with a house and buildings. The unregistered lease gave them a life interest but they could not sell their interest and would lose it if they left the land.

The new owner said the lease was invalid because it was an illegal subdivision contrary to s 94(1) of the Land Titles Act. Subdivision by lease is dealt with differently in the Australian states, New Zealand and Singapore where there is a statutory presumption that a lease of part of the land for more than a particular number of years is a subdivision. LEASES – Certainty in lease property descriptions – Alberta The Alberta Court of Appeal has held that a property description in a lease of “the house and buildings only located on 10 acres more or less” was sufficiently certain to render the lease enforceable: Paskal Holdings Inc v Loedeman (http://fordsreports.com/wp-content/uploads/2017/01/Paskal-Holdings-Inc-v-Loedeman-2017-ABCA-29-CanLII-2017-FICR-10.pdf). A new owner was trying to evict an elderly couple who had sold their quarter section of land (160 acres) to a prior owner and leased back 10 acres with a house and buildings. The unregistered lease gave them a life interest but they could not sell their interest and would lose it if they left the land. The lease described the land as “the house and buildings only located on 10 acres more or less”. The new owner argued that the description of the land was insufficiently specific for the lease to be valid but the chambers Judge disagreed and held it was sufficiently certain. The Court of Appeal held the land was described with sufficient specificity. It said here is not one single correct way to describe the premises in a lease for it be valid.

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Even a description based on a statement of area may suffice. Ambiguity can be resolved by extrinsic evidence if it explains, but does not contradict, an existing description and fits within the parameters of the parol evidence rule. PRIVATE INTERNATIONAL LAW – When is exclusive jurisdiction not exclusive? – Ontario The Ontario Court of Appeal has held that a clause in an agreement giving the Cayman Islands exclusive jurisdiction did not apply because the claim was not against parties to the agreement or within the clause: W&W Fiberglass Tank Co Profit Sharing Plan v Bartholomew (http://fordsreports.com/wp-content/uploads/2017/01/WW-Fiberglass-Tank-Co.-Profit-Sharing-Plan-v.-Bartholomew-2017-FICR-5.pdf). The clause gave the Cayman Islands exclusive jurisdiction for “any action or proceeding arising, directly, indirectly, or otherwise, in connection with, out of, related to, or from, this Application Form for Subscription or the purchase of the Participating Shares, or any transaction covered hereby”. A claim against a non-party for breach of fiduciary duty was not within the clause. PRIVATE INTERNATIONAL LAW – Forum non conveniens test: Canada vs UK The British Columbia Court of Appeal has held that British Columbia was the more appropriate forum to hear a claim by Guatemalan citizens shot at a mine in Guatemala ultimately owned by a British Columbian company: Garcia v Tahoe Resources Inc (http://fordsreports.com/wp-content/uploads/2017/02/17-Garcia-v-Tahoe-Resources-Inc-2017-FICR-17.pdf). A chambers Judge stayed the Canadian proceedings, finding that Guatemala was clearly the more appropriate forum because it was “capable of providing justice”. The appeal Court said was the wrong test and it should have asked whether there was a real risk of an unfair process in the foreign court. Indefinite adjournment of the Guatemalan criminal proceedings, uncertainty over extension of the civil limitation period and the inadequate discovery process in Guatemala meant that there was a real risk. Canada and England take a different approach to forum non conveniens. In England, a defendant must establish that its proposed alternate forum is more appropriate; if this burden is met, then a stay will ordinarily be granted unless the plaintiff can establish other circumstances which make the granting of a stay adverse to the interests of justice, such as corruption or injustice in the alternate forum. This

burden is on the plaintiff and comes at a secondary stage after the defendant has established the alternate forum is more appropriate. The Canadian approach is not a two-stage analysis. All factors and concerns must be weighed together in one stage with the overall burden on the defendant to establish that the proposed alternate forum is in a better position to dispose fairly and efficiently of the litigation. Where a plaintiff presents evidence of corruption and injustice in the defendant’s proposed alternate forum, the court must ask whether the evidence shows a “real risk” that the alternate forum will not provide justice. Sweeping, generalized evidence of corruption in the alternate forum does not meet that standard. There is no specific evidentiary threshold in Canada. The quality of evidence regarding the risk of unfairness should dictate the weight that is attached to that factor. Broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight. PROCEDURE – Put best foot forward and beware being estopped by taking “no position” on orders – Ontario A party taking no position on a summary judgment application is bound by the judgment and estopped from raising issues it determines. So held the Ontario Court of Appeal in D’Onofrio v Advantage Car & Truck Rentals Limited et al (http://fordsreports.com/wp-content/uploads/2017/01/WW-Fiberglass-Tank-Co.-Profit-Sharing-Plan-v.-Bartholomew-2017-FICR-5.pdf). Defendants had taken no position on another defendant’s application for summary judgment that it released from proceedings. The Court of Appeal held that the defendants were bound by the summary judgment and were estopped from raising a defence that was directly affected by the judgment. They were parties to the action and were bound regardless of the position they took.

► Cameron Ford Corporate Counsel Rio Tinto, Singapore E-mail: [email protected]

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There’s a running joke amongst young Australian lawyers about becoming “the other kind of barrister”, i.e. the barista. In Singapore, we’ve all heard of the young lawyer who quit their job to start their own business – nightclubs, Japanese food, skincare products, just to name a few. Comparatively less has been written about the young lawyer who quit their job to start their own law firm. In this article, Alicia Zhuang (“AZ”) speaks with three gutsy lawyers who did just that. Susan Tay Ting Lan (“ST”), the lao jiao of the lot, started OTP Law Corporation 26 years ago. The other two, Wilbur Lim (“WL”) and Hazell Ng (“HN”), started WMH Law Corporation just last year. In addition to asking them “why”, “when”, and “how”, this interview attempts to explore the mindsets of the three, and their motivations. AZ: Let’s begin with a brief introduction for the readers. Could you tell us your age, educational background, and areas of practice? ST: 51 years old going on 30. I was from NUS and was called to the Bar in 1989, so long ago that sometimes I forget which year it was. Where the law is concerned, I am now mainly handling family and matrimonial, and civil litigation relating to shareholders’ disputes, property and trusts. I have also done commercial transactional work and conveyancing. WL: I am 29, I studied law at Singapore Management University (“SMU”), and practised at one of the Big Four law firms for a few years before starting WMH Law Corporation. My areas of practice are construction, commercial, criminal and matrimonial. I’m also concurrently teaching as an adjunct faculty at SMU School of Law. HN: I am 27 this year and went to University of Manchester. I did my training contract at a small firm and then transitioned to a Big Four law firm before starting WMH. I handle matrimonial, probate, insolvency and defamation matters. AZ: What made you decide to start your own firm? ST: When I was 12, I knew I wanted to start my own business by the time I turned 28. I also told my mother when I was six that I would leave home when I went to university. Maybe it was because I was the eldest child in the family, you know, that strain of disease called needforindependencema found commonly in firstborns? But at two PQE I knew that I did

not want to be an employee. I wanted equal say. I wanted partnership. WL: The younger generation of lawyers tends to have a different outlook on the practice of law and how cases ought to be handled. There is no right or wrong. However, rather than lamenting over the areas which we hope to change, I think that starting my own practice is the most effective way for me to effect the changes. I have known Mark Lee, our other joint Managing Director, since day one of law school. In our early years, we had dreams of running our own practice. We wanted to be able to customise our practice, to run our own cases, have a say in legal fees, do more pro bono, and create an environment in which colleagues would have each other’s back. We strongly believe in fixed fee or fee caps so that clients understand the costs involved right at the outset, and legal technology. HN: I believe in Wilbur’s visions and wanted to support him. In addition, I wanted better control over my own files. And if people want to get married and have kids, there will usually be events that they need to take time off for, like if their kids got sick. I’d want to take my kid to the doctor, and even if someone else could do it, I’d still be worried. AZ: I think that in most law firms, only partners get to attend to urgent family matters during working hours without having worry about urgent leave approval. And being viewed unfavourably for it.

Putting on the Boss Hat

L to R Mark Lee, Wilbur Lim, Hazell Ng

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HN: Yeah, I felt that junior lawyers don’t get to enjoy this flexibility and are forced to choose between work and family. Starting my own firm was a solution. AZ: When did you start your firm, and why at that particular stage? ST: The year I was turning 26, I was suddenly impatient. I asked myself why wait another two years? Just do it already! I am quite the dogged type, especially about getting what I want, and am probably the kind to look for opportunities than to wait for opportunities to knock on my door. So just before it was time to renew my practising certificate after two PQE, I went to my boss’ office (who was also my pupil master) and told him I was ready to be a partner. He said many things, but all I can remember now is “no, you are not”. Within a few months I tendered my resignation. I spent time speaking with people about setting up my own firm – parents, friends. People started introducing to me other lawyers who had set up their firms, and that was how I met Ong Ying Ping, a sole proprietor of one year who had started Ong & Associates straight out of pupillage. We really clicked, mainly because he immediately offered equal partnership. In 1991, we set up Ong Tay & Partners. WL: WMH Law Corporation was launched in November 2016. It had always been our plan to set up our own law firm when we were ready. AZ: When you were ready… that wasn’t tied to PQE? Or say upon hitting partnership? WL: No, there is never a perfect time. No matter what your seniority is, there will always be naysayers who think you should wait a few more years. When you ask what they think the golden rule is, they either throw out an arbitrary number of post-qualification experience or avoid the question altogether. Some senior practitioners had even told me that despite their seniority, more than 20 years in practice, they still did not feel ready to start their own practice. Again, there is no right or wrong. It just goes to show that there is never a perfect time. What is important is responsibility to your clients, your dependents, the Court, and yourself. HN: To add on, prior to the Law Society’s requirement that you must have been in practice for at least three years to start your own law firm, there were lawyers starting their own firms just after one year in practice. Some are doing very well now.

AZ: So, probably everyone has an opinion about how a law firm should be run. Or how they would like to run their own law firm. What got me curious about running successful businesses were computer games like SimCity, Railroad Tycoon and Civilization. But that’s all a different kettle of fish from actually starting a business yourself. I mean, when things start going south in a computer game, you can always go back to a save point or restart from scratch. No consequences. You have the benefit of hindsight to avoid making the same mistakes. Here, you’re starting a real life business, a professional one at that, carrying with it many additional professional and ethical obligations, and early in your legal career. There are no save points. Time travel doesn’t exist. Apart from worrying about having the financial wherewithal, I think I’m not alone when I say that I’d also be worried about not having a senior lawyer around as a sounding board… someone who’s had to be responsible for business plans and budgets, someone who’s had much more experience in the practice of law. Did you consider starting your firm with a senior lawyer, or bringing one on board after starting? ST: There were so many considerations one should be concerned with that if I had started worrying about every detail, I would likely be frozen in fear and stayed in my first job which by the way, was a good place. Nobody thought about what if I got sued for negligence, definitely not me. Sometimes, all it takes is to have luck on your side, meet someone you believe shares the same fundamentals and then take that leap of faith. Thus it was with a crazy ambition I set for myself at 12, plenty of luck and that chance meeting that I left associateship behind to become a partner in my own firm. As luck was on my side, we did have a mentor. He was Lim Seng Siew, two years our senior, who was then practising on the sixth floor while our firm was on the eighth. Today, I can tell you confidently that your mentors and seniors may guide you but lessons are often learnt from your peers and your staff. WL: We were comfortable starting out without a senior lawyer. We do not think that age or seniority is a big factor. I am also very fortunate to have worked with some of the best and most respectable and ethical lawyers in the field in my early years of practice. It goes a long way to ensure that I am equipped with the skills and knowledge required.

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As to whether we have considered bringing senior lawyers in, we are always open for discussions as long as he or she believes in what we are doing. AZ: Can you tell us about the process of setting up your law firm? WL: We spent a few years preparing for this, from thinking about business structure and management, to attracting and managing clients, and doing our due diligence in relation to compliance with all applicable regulations. HN: The lawyers setting up the firm must be very hands-on in relation to all cases and administrative matters. WL: We applied for a license for our law firm with LSRA [Legal Services Regulatory Authority, Ministry of Law]. Among the things you will need to submit with the application are a draft constitution and organisational structure. If you are sharing office premises with someone else you will need to seek approval. Once we received interim approval from the LRSA, we registered the firm with ACRA [Accounting and Corporate Regulatory Authority]. We spoke with the professional indemnity insurers to arrange for insurance, informed the Law Society when we intended to launch the firm, and applied for an exemption from the Law Society’s Legal Practice Management Course. After all of this was done we went back to LRSA for final approval. AZ: Just a note for the readers that a brief write-up on the LRSA and its answers to commonly asked questions can be found in the December 2016 issue of the Law Gazette at pages 8 to 11. HN: Remember to apply for an eLitigation account, file your notice of change of particulars, and set up your office account and client account with a bank. WL: There are numerous rules governing the client account that you need to watch out for. We also spent some time discussing about security and client confidentiality, and setting up a library of books and precedents. We have also invested substantial resources on network drives to ensure that all lawyers in the firm are adequately connected to their respective folders. ST: Back then, it was really easy to set up your own firm. There was no three PQE requirement or management course you needed to pass. The abbreviation “PQE” hadn’t even been invented yet! You just had to inform the Law

Society, get your insurance, apply for a practising certificate under the new firm, file notices of change for all your cases, and that’s it. Oh yes, and change your signage and name cards. AZ: What did your firm look like in the early days? ST: Our first office was a long, narrow, teeny but neat cubbyhole in Colombo Court. Two rooms, and enough space to put two more desks outside the rooms, plus a small two-seater grey sofa. It was maybe 200 square feet? With rental at $800 a month. I remember each of us had a giant desktop computer with Wordstar which I didn’t really use. Both Ying Ping and I had our own secretaries. We went to the High Court library for research. We were also next door to the Law Society and loved it. We popped by every so often and knew everyone who worked there. AZ: And what does your firm look like now? ST: If you mean physical space, we keep getting smaller. We share a 1,300 square foot space with two other law firms. My own room is shared with two other lawyers, but it is big enough for six people for lunch or a birthday celebration. In terms of people, the only people in OTP Law Corporation are lawyers. We sub-contract the running of the firm and all non-legal aspects to PracticeForte Pte Ltd, an entity which takes care of the premises, software, hardware, peopleware, and vapourware. This lets OTP focus on the practice of law. We are also more wired than ever – tablets,

L to R Lim Seng Siew, Susan Tay Ting Lan, Mylene Chua, Sandra Yong, Serene Ee

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mobile phones, laptops. I am in the office four days a week and work offsite on Fridays. In terms of the practice, OTP has been a part of a network called PracticeForte Advisory since May last year. This is a network of independent professional firms of lawyers and accountants. As at the time of this interview, it is 14 professionals strong. With the Advisory and a system of collaboration, a law firm can pitch for more complex work as we now have a bigger team with wider expertise. WL: Our office is located at High Street Plaza just opposite the Supreme Court. We chose High Street for its close proximity to the Supreme Court. It was also the location of the Attorney-General’s Chambers in the past. The history junkie in us thought that it was far too good a location to be missed. Our office has a waiting area with a sofa, a large meeting room, a smaller room that we use as a pantry and for storage, and an open-concept work area where our desks, printer and network attached storage system are. Everything was paid for using our own savings. We didn’t take out any loans. At the moment it’s just Mark, Hazell and I. AZ: What are the biggest challenges you have encountered? WL: Hiring the right people. We want to be confident that the people we approach share the same vision as us in relation to the practice of law. We have been actively looking for lawyers and support staff. ST: Managing people. I dare say I was one big bad boss. In early 2000, Ying Ping’s secretary, Sandra Yong, quit because of me. I pleaded with Sandra to come back after one year, and she did. She has been with us since. She’s like family now, and our epoxy glue. She was the one who taught me a lot about caring for your team. Because she knows, she makes sure the support team feels valued and cared for. Other than that, collections. We were so bad at collecting our fees that we had people owing us more than what we owed the bank. Eventually we learnt about finance from an accountant and hired a finance person to take care of billings and collections. AZ: Why do you say you were a bad boss? And what have you learnt about managing people? ST: I was impatient, short tempered and careless, hurting my colleagues with strong words or being downright

unreasonable in my expectations. Things like timelines for example. Practice in the early years was so stressful that I did not spend any time trying to get to know my colleagues but instead took out my frustrations on them. When Sandra quit, she had just given birth and I did not even visit her. Instead, I was just piling on the pressure. I am still impatient but I don't think I am so careless anymore. I also try to keep my temper in check. I laugh a lot more now. People management is still tough but thanks to the great people in my team it gets better. AZ: Yup, “take care of your employees and they’ll take care of your business.” There are people who think that this saying is a load of woo woo codswallop, but I have seen that culture and values are key. [ST nods] Did any of you have any doubters? ST: Apart from mummy, everyone doubted. They thought that coming out after only two PQE was nuts – not enough experience, and where were you going to get clients? Only my mother thought it was a good idea to leave and set up my own firm. Even better if the firm bore my name. When I borrowed $20,000 from my mum to set up Ong Tay & Partners, some people called me “idiot” behind my back for paying so much. But it was the best investment I ever made in my life. I paid my mum back within a month. WL: There will always be doubters and naysayers. By way of example, in a matter that we were instructed on, we have the other side making snide remarks about the age of our firm, which were eventually conveyed to our clients. Our general approach is to brush those comments aside and let the outcome speak for itself. We believe that age does not determine your capabilities as a lawyer. For example, we have some of the brightest minds taking up important roles in the Singapore Legal Service at a young age. AZ: How about your sources of support or inspiration? ST: Family. Very luckily, I come from a close-knit clan of siblings. Until my dad passed, he was a huge inspiration and support. Needless to say, mummy is my pillar always. Also, good friends. And definitely my team, Sandra, Serene, Seng Siew, and Mylene. When Mylene joined OTP Law Corporation in 2015, she brought a lot of energy and new ideas to the firm. PracticeForte was started thanks to her. I am also inspired by heroes who lead ordinary lives, and some of the young people who have interned or worked with us. I am amazed by how bright those young people are,

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and how earnest they are in seeking what is meaningful for them. HN: My family members. My mother runs her own law firm in Malaysia and gave me a lot of tips on things like admin and client management. We visited her law firm a couple of times. WL: My family has been incredibly supportive. When I told my parents that I wanted to quit and start my own practice, they told me to go ahead, do a good job, and be an honourable and respectable lawyer. They trust that I knew what I was doing. AZ: Let me ask you this. What if running your own law firm didn’t work out? ST: Air hostess? A bit too old now. Truth? I had no Plan B. WL: You should plan for the worst, but I don’t believe in going into a business venture with a quick and easy exit plan. If I believed in safety nets I would have asked Hazell to remain at her previous job while I set up the law firm. AZ: That reminds me of what the founder of Theranos said: “The minute you have a backup plan, you’ve admitted you’re not going to succeed”. But even if you didn’t have a backup plan, what would you probably do if it didn’t work out? WL: I love the law. If it doesn’t work out, I will continue to be the best lawyer I could be in another firm. HN: My answer is the same as Wilbur’s. ST: Speaking with the benefit of hindsight, I would have started something else. In 1996, we co-owned a café and in 2000, a law dot com. In 2015, PracticeForte. So yes, I would definitely have started something else but maybe after finding some time to lick my wounds and learn from previous failures. AZ: Where do you see your law firm in five years? ST: For OTP, another incarnation, being part of a bigger set-up, being run by a group of younger and very capable people. Change has been constant for OTP. WL: We are looking to grow and expand our practice. Right now we are litigation focused, but we want to become a full service firm with corporate and conveyancing practices.

AZ: What’s your best advice for young lawyers who dream of starting their own law firms? ST: Three things really: (1) just do it already; (2) after you do, keep at it, don’t give up; remember that failure is part of the landscape of success; and (3) until you have given all your best and the fun is well and truly over, then walk away and never look back. Don’t forget the important ingredient of course – good and supportive partners. But be one yourself first. And I must repeat the trite but true saying, "there is no better time to start than now". You should pursue what you want and disregard the naysayers. They are everywhere at every corner. Use them to spur you, not to stop you. But beware the biggest and most effective naysayer and that is the part of us that is afraid of the unknown. HN: There will always be high points and down points. When you are running your own law firm you have to accept that there will be dry spells, and just persevere. You should set up a rainy day fund for yourself and your law firm. WL: Think about it very carefully. Don’t jump into it. Weigh your commitments. Don’t start a law firm for money or fame. If you want that, you should stay in the big firms. Starting a law firm is a lot of work. You will have doubters, and you have to manage the business aspect of the firm. You need to have at least a two-year plan for the firm. You need to look into minute details such as when you should engage an accountant, who should keep track of regulations and compliance. At the end of the day, the best job security is the one you create for yourself. Whether you are in a big or a small firm, the important thing to do is to carve out a practice for yourself that is not easily dispensable and replaceable. This applies to everyone.

► Alicia Zhuang Australian Lawyer Advocate & Solicitor

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It must be the nth time she has committed yet another shoplifting offence. Why can’t she just stop? How much more shame and embarrassment is she going to bring to herself and her family? Why wouldn’t she change? Amongst offenders who steal, shoplift, cheat and embezzle, there is a minority of them whose stories and behaviours baffle and fascinate us because of their nonsensical, repetitive and self-defeating nature. A number of questions come to mind when the stealing does not conform to or resemble those of a normal thief (i.e. a Typical Theft Offender) who steals out of greed or for the monetary value of the items. Different names are given to such behaviour: compulsive stealing, stealing addiction, and Kleptomania. What is Kleptomania? Kleptomania is an Impulse Control Disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). The defining behaviour is itself illegal. Diagnostic Criteria of Kleptomania (312.32) 1. Recurrent failure to resist impulses to steal objects that

are not needed for personal use or for their monetary value.

Atypical Theft Offending2. Increasing sense of tension immediately before

committing the theft.

3. Pleasure, gratification, or relief at the time of committing the theft.

4. The stealing is not committed to express anger or vengeance and is not in response to a delusion or a hallucination.

5. The stealing is not better explained by conduct disorder, a manic episode, or antisocial personality disorder.

Despite its seemingly attractive explanatory power for nonsensical theft behaviour, Kleptomania indeed is a very rare condition in the general population – about 0.3%–0.6%. Amongst people who are arrested for shoplifting, about 4%–24% can be classified as “Kleptomaniac”. Females outnumber males at a ratio of 3:1 (APA, 2013). In the past eight years, I have assessed more than 60 individuals with nonsensical theft and cheating behaviour who were arrested, warned, prosecuted, fined, and incarcerated. Many of them are educated, honest and law-abiding people before they started stealing. Some of them have never stolen or shoplifted before, and had no clue why they stole. Some had a history of stealing for some time and were caught for the first time. Some, however, were repeat

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From the spouse of an Atypical Theft Offender (ATO):* As the spouse of an ATO, my life changed completely the day I decided to be with her. The moment we started dating, I was prepared for the fact that she could never control her stealing urges. However her condition mutated, with every incarceration there were more struggles to overcome. She became more socially withdrawn; this affected my social life as well. I was afraid to meet up with old friends in case they asked me about my wife. I no longer met my ex-colleagues because they gossiped behind my back. I was afraid of bringing my wife to company events in case my colleagues recognised her from the newspapers. Her pictures were always published in the newspapers whenever she reoffended. I try to have as few friends as possible. It was very difficult for her to find a job. It would be impossible for employers to hire her because she has been to jail before and she is a patient of IMH. Due to not being gainfully employed, her mental health has been affected. Gradually her social circle became smaller. When she meets up with people she has little things to talk about. This further alienates her from society. Every time she reoffends it would cost us a lot financially. We have to pay for lawyers and doctors. The case can drag for up to two years before she is finally sentenced. All the waiting causes a lot of anxiety for both of us. Many times the anxiety causes her to reoffend while on bail.

Very sadly the prosecutors are not very sympathetic. Their main priority is to send her to be assessed to see if there is any causal link between her mental condition and her offending. Due to the complexity of her condition, she has been diagnosed with many different conditions and many doctors differ in their opinions. Some say it is not Kleptomania but a personality disorder. Some say she is totally normal. Due to the complicated diagnoses, the whole process takes a very long time that the fees spent on doctors and lawyers are very costly. Usually when our lawyers feel that the sentence is unfair, we would be advised to appeal. Though we have always had our appeals upheld in the High Court, it is not a victory for us considering the time and money spent going to Court. I really wish the AG would not be in a hurry to charge my wife. Every time my wife is arrested, the police officer will tell us that my wife is a “repeat offender”, “definitely must charge”. It is really sad. It feels like the system is such, there is no way out for her. The moment she is arrested the system already assumes she is not remorseful. We have to exhaust all our means to prove that she has an illness. It was so difficult to do so because IMH has certain guidelines on how a person is diagnosed as a Kleptomaniac. If my wife does not fulfil all the diagnostic criteria, she is deemed to not be a Kleptomaniac, and hence there is no causal link between her condition and her offending. It does not matter to them

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offenders, been in and out of prison a few times before they came to see me. They matched some features of Kleptomania, e.g. the tension experienced and the urges to steal. But they are not Kleptomaniac. They were assessed as “Atypical Theft Offenders” (“ATOs”). Unlike Typical Theft Offenders (“TTOs”), ATOs feel very ashamed, embarrassed and remorseful, and may even contemplate killing themselves out of guilt, desperation and humiliation upon arrest. They feel “out of control” and keep falling back into the same cycle. Over the years, my knowledge and understanding of Atypical Theft Behaviour have broadened and deepened as I was referred more such cases by criminal lawyers who found their clients’ theft behaviours puzzling and incomprehensible. I started reading up the medical/psychological literature, ordering books from overseas, researching local landmark Court cases, as well as digging into local news to get a

flavour of the offenders’ backgrounds and their common disposition in the criminal justice system. In my clinic work, I have come to appreciate that in addition to theft behaviour like shoplifting, Atypical Theft Behaviour also has a few variants like fraud, cheating, embezzlement and stealing from employers, which are precipitated and triggered by similar underlying psychodynamic issues. One of my major findings was – pure Kleptomania could be a myth. I noticed the majority of shoplifters or theft offenders referred by criminal lawyers do not always meet the full diagnostic criteria of Kleptomania. Very often, their theft behaviours were precipitated or triggered by certain underlying psychological issues or emotions. The more I listened to their stories, the circumstances of which their nonsensical stealing offences took place, the tremendous guilt and shame experienced, as well as their being clueless as to why they committed such behaviour, the more I embrace the notion and phenomenon of Atypical Theft Offending (“ATO”).

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Atypical Theft Offending At the time when this article is being written, ATO is not a diagnosable disorder in the DSM-5 or ICD-10 (International Statistical Classification of Diseases and Related Health Problems). The fact that it cannot be found in official psychiatric diagnostic manuals does not nullify its existence. Rather it only points to our ignorance and inability to truly and fully conceptualise, understand and appreciate the psychodynamics behind such nonsensical stealing behaviours, and to delineate the underlying triggers and motives, and tailor effective treatment options for the offender-sufferers. According to Dr Will Cupchik, an expert who spent four decades working with ATOs in terms of assessment and treatment, and providing consultation and psycho-education to relevant parties,

An Atypical Theft Offender is defined as “an individual whose theft behaviour was not primarily precipitated out of either need or greed, but rather was a behavioural response to usually subconscious or unconscious psychodynamic factors. The act of theft and/or the item(s) stolen have symbolic meaning.” (Cupchik, 2002, page xxxiii).

ATO is a psychological condition of which stealing or shoplifting behaviour becomes the sufferers’ maladaptive coping strategy, also known as “acting out” behaviour. ATOs usually have very low self-esteem despite their apparent accomplishment. The typical age of onset is late adolescence or early adulthood, although it is also seen in individuals of a wide age range from children to elderly. Cupchik (2014) proposed a number of contributing factors among other reasons of atypical theft behaviour: (1) actual or anticipated unfair personally meaningful losses (e.g. of a parent, spouse, significant relationship, job and health) in the past or currently; (2) extreme stressors; (3) a desire for unconscious retribution or manipulation (e.g. holding negative emotions like anger and resentment; and/or (4) the actual or anticipated occurrence of cancer or another serious illness in oneself or in a loved one. He put forward the “Loss-Substitution-by-Stealing” hypothesis that describes individuals’ acting out (stealing) to “compensate” for the personal losses they experienced, subconsciously or unconsciously. Assessment of Atypical Theft Behaviour Atypical theft behaviour is often confused with and mis-diagnosed as Kleptomania, an Impulse Control Disorder, simply because of their overlapping characteristics. It would

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that my wife has received psychiatric treatment for more than 10 years. The main thing the prosecutors want to know is “if there is a causal link”. If there is no causal link, they will charge her. I find this to be so unfair. We have paid so much money for psychiatric treatment over the past 10 years. How could she be normal? If she is perfectly fine, why would we bother seeing a doctor every week? Every single week. Every week attending psychotherapy. For a single-income couple with a new-born baby, seeing a doctor every week is so expensive. Despite that, I have never considered stopping treatment because I think it is necessary. The psychotherapy is helpful. It is just that from time to time she would encounter setbacks and she may reoffend. It does not mean that she is not getting better. We need to give her time. Every time she goes to jail we have to start the process all over again. It destroys all the progress and sets her back even more. Prosecutors tend to think she is using her mental condition as an excuse to escape a jail term. I have sat through so many hearings and heard prosecutors calling her nasty names. My heart would be filled with anger and sadness.

I always wonder if their own mother, daughter or wife were to have the same condition, would they use such nasty terms on them? No one in this world can possibly understand this condition. Only someone who lives with a person like this can imagine how dreadful it is to be an ATO. Being locked up in prison for a prolonged period of time only causes her to have even lower self-esteem and withdraw from society even further. It exposes her to hardened criminals and this has a negative impact on her life. She is a university graduate, did well in her studies and had a high paying job. All these were gone because of her illness. What can be more punitive than having all these taken away from you? There is no need to punish her further by sending her to a physical prison. She is already locked in a prison of her own mind. After being in and out of Court for 10 years, she is slowly losing her strength to fight this illness. Her hope for a normal life is slowly being extinguished. I feel so tired and hopeless seeing this happen over and over again. * Based on a true story with informed consent given by the ATO and ATO-spouse.

Columns


be fair to say that Kleptomania falls under the umbrella of Atypical Theft Behaviour, and has more stringent diagnostic criteria which distinguishes those diagnosed with it as suffering from primarily an Impulse Control Disorder. A theft offender would indeed be considered “lucky” if he or she is diagnosed as suffering from “Kleptomania” – a more well-known and headline-grabbing mental disorder that may gain them some sympathy. There are people who out of sarcasm and misunderstanding, equate “a diagnosis of Kleptomania” to “a licence to steal”. A detailed assessment of a theft offender’s background, presence of any significant personal losses, onset and history of theft behaviour, circumstances of the theft incidents, and details of items stolen may reveal valuable information to our understanding as to whether an offender is an ATO or TTO, or a Mixed-type (ATO/TTO). A Mixed-type (ATO/TTO) refers to a group of theft offenders who display features of both atypical and typical theft behaviours. In addition to stealing behaviour, ATOs usually also have other comorbid (co-existing) conditions like mood disorders, anxiety disorders, hoarding disorders, eating disorders, substance use disorders, attention-deficit/hyperactivity disorder, post-traumatic stress disorder, personality disorders and other impulse control disorders which would require detailed assessment too. The overlapping with these disorders enlightens our understanding with regard to their respective underlying psychological issues, neurochemical mechanisms as well as psychopharmacological approaches to manage the condition. Treatment of Atypical Theft Behaviour There is a misconception that there is a cure for atypical theft behaviour. In a way, ATO is no different from some of the mental illnesses like schizophrenia, or physical illnesses like hypertension or diabetes, where monitoring and management of the condition to maximise recovery and functioning is key. Due to the chronicity and complexity of atypical theft behaviour, long-term psychotherapy which explores and resolves underlying psychological issues should be the first-line of treatment. Contrary to a historical practice of prescribing anti-depressants to treat nonsensical stealing behaviour because an offender might be assessed as depressed at the time of offence commission, it is well-documented that increased disinhibition, hostility, aggressiveness, mental slowness, forgetfulness and acting out behaviour are amongst some of the side-effects of anti-depressants (Cupchik, 2014). Treatment of ATOs will thus require a balance of medical and psychosocial input so

that these co-existing mental conditions will not be further aggravated. Mental Conditions and Offence Commission A mental condition is never “a licence” to breach the law, or commit a crime. Theft is considered a “serious” crime in Singapore as s 380 of the Penal Code carries a mandatory jail sentence which may extend to seven years. Some repeat offenders may also be eligible for corrective training or preventive detention. Due to a lack of understanding of Atypical Theft Behaviour, some of the theft offenders have not been properly assessed who are indeed ATOs. Many of such repeat offenders are even considered by prosecutors and Judges as “not remorseful” or “not learning from their lessons”, and are labelled as “recalcitrant and a danger to society”. The fact is they are struggling with their ATO condition, they could be seeking treatment but are still prone to relapse when triggered, i.e. re-offend. Unlike other psychiatric diagnoses like major depression which may have a direct causal link to offence commission, ATO is in itself the manifestation of the mental affliction, and thus the search for any causal link is simply futile and irrelevant. Looking at the situation from another point of view or a different mindset, we may view atypical theft offenders differently and grant them the compassion and opportunity they deserve. They are not bad people, or mad, or sad. They are simply afflicted with a mental condition that is not commonly known in the mental health and criminal justice systems. Punishment vs Rehabilitation Being apprehended for their stealing behaviour is more a norm than an exception in this group. However, despite multiple arrests and convictions, individuals with ATO tend to perpetuate their behaviours, unless treatment and intervention are put in place in a timely manner and with continued monitoring. It is a double misfortune that repeat atypical theft offenders are often mis-diagnosed by the mental health system as “anti-social” or “normal”, who are then invariably misunderstood by the criminal justice system as TTOs. Many of the ATOs, particularly those without lawyer representation and a psychiatric/psychological assessment and diagnosis, go to jail in silence because their feelings of shame and guilt tell them they deserve to be punished. This group is also prone to self-harm behaviour like suicidal ideation and attempted suicide. Repeat stealing behaviour by someone who was once an honest and law-abiding member of the society always adds to the conundrum and makes newspaper

Practice Support

Columns


headlines. A criminal record and imprisonment term make their already “out of control” lives even more miserable. Sometime ago I assessed a gentleman who lost his job through no fault of his more than a decade ago. He felt he was unfairly treated and his pent-up anger, frustrations and vengeance led to a series of theft offences which landed him in prison. Upon his release, a criminal record made job-hunting understandably more difficult. He became angrier, yet was unaware of his hidden negative emotions. When provoked by life stressors again, he engaged in another spate of theft offences without knowing why he did so. Is incarceration a truly satisfactory or appropriate solution? Is it a suitable deterrent and punishment for someone with ATO, in particular a repeat ATO? Would it not exacerbate the ATO condition and estrange the offender further from the remaining support that is crucial to rehabilitative progress? Imprisonment often sabotages the effort made by the offender to turn over a new leaf, as well as further alienates him or her from society, where treatment and support are more readily available. It also destroys the last hope for recovery. Imprisonment inevitably puts the ATOs in both a physical and mental prison, with a significantly bleaker prognosis of their condition upon release. Imprisonment also adds pressure to family members of ATOs who are again stranded until the vicious cycle of atypical thefts repeats itself the next time. They are being punished too.

Going Forward In countries like Canada which are more developed in terms of understanding and handling Atypical Theft Behaviour, psycho-education and consultation are provided to loss prevention officers, law enforcement officers and also Court personnel. If a theft offender is suspected to be an ATO or a mixed-type (ATO/TTO), a thorough assessment should be carried out, with proper referrals to respective treatment agencies. In Singapore, it is understood that the Court routinely refers ATOs to We Care Community Services which provides specialized ATO treatment programmes. It is hoped that this article will enhance our knowledge and understanding of Atypical Theft Behaviour. It should be highlighted that the fact that an offender re-offends does not mean treatment has failed; it simply means that he or she needs more time to work on the underlying psychodynamics to replace stealing as a way of coping.

► Dr Julia Lam Consultant Forensic Psychologist Forensic Psych Services E-mail: [email protected]

Bibliography: APA, Diagnostic and Statistical Manual of Mental Disorders, 5th Ed (American Psychiatric Association, 2013).

Cupchik, W, Why Honest People Shoplift or Commit Other Acts of Theft: Assessment and Treatment of Atypical Theft Offenders (Tagami Communications, 2002).

Cupchik, W, Why Usually Honest People Steal: Understanding, Treating and Stopping Nonsensical Shoplifting and Other Bizarre Theft Behaviours (Tagami Communications, 2013).

Cupchik, W (2014), Why ‘Kleptomania’ hardly exists… but antidepressants may trigger it!, retrieved from <http://www.whyhonestpeoplesteal.com/articles.html>.

Cupchik, W and Atcheson, JD, ‘Shoplifting: An occasional crime of the moral majority’, Bulletin of the American of Psychiatry and the Law, 11, 4-343 (1983).

Goh Lee Yin v Public Prosecutor [2006] 1 SLR(R) 530

Grant, J, Impulse Control Disorders: A Clinician's Guide to Understanding and Treating Behavioural Addictions (1st Edition) (WW Norton & Company, 2008)

Grant, JE and Kim, SW, Stop Me Because I Can't Stop Myself: Taking Control of Impulsive Behaviour (McGraw-Hill Education, 2003).

Grant, JE and Potenza, MN (eds), The Oxford Handbook of Impulse Control Disorders (Oxford University Press, 2011).

Shulman, TD, Something for Nothing: Shoplifting Addiction and Recovery (Infinity Publishing, 2012).

Practice Support

Lifestyle


Twenty years ago on this month, my journey in law started. In fact, it started way before that when I worked in Dr Ann Tan’s office, which was my first job and my first entry into a law firm and foray into family law. Little did I know then that one day I will become a full time family lawyer. The study of law for me was inspired by only one motive – to help people. In fact, I would have become a social worker if not for the gentle push by my father to take up law. He said that I could help people as a lawyer as well, which paved the way for this long journey. Helping people has been important to me since I was 15. The process of giving gives me a positive feeling of satisfaction and fulfillment. It is a contribution to the world I live in so that it can be a better place for others. As idealistic and cliché as it sounds, my life is all about that. My legal education was not eventful. During the preparation for the UK Bar Examinations, I was pretty sure I was going to practise law for three years only. Being busy with law practice in Allen & Gledhill, I did not realise when the three year mark passed. Unlike many, I have had only three jobs in my entire life. I was full of dreams and ideals. Over time I have become more pragmatic but the love for helping continues. I measure my life by my law practice as that is what the majority of my life has been about as a result of the firms

Destiny and Destinations

Alter Ego

I worked in. It is rather difficult to comparmentalise law as an aspect of life. It is not just a job or even a career. It is a calling which is a large part of life. My law practice has been about hard work. Long hours of focussed and dedicated work often stretching into weekends. In the beginning years of practice, the work week was five and a half days, then with alternate Saturdays off and then finally a five day week. I would not exchange the training ground in my previous law firms, Ann Tan & Associates or Allen & Gledhill for anything. It was at these firms that I learnt the important qualities of hard work and serving clients well and the detailed care we have to show in our work. There was no leeway for tardiness or excuses for mistakes or low quality output at all. The values instilled in me then have become a part of me even now when I run my own firm.

Lifestyle


My time spent in Ann Tan & Associates ignited my deep interest in family law. I was given a lot of independence in my work whilst assisting a legal associate. I worked with clients. Dr Ann Tan herself was very demanding and did not tolerate the legal associates’ slack or mistakes. It was a difficult working relationship, but we also forged a close friendship. The camaraderie and the close kinship that existed in the firm made it an enjoyable place to work in. The firm was a second home to me. Being in a large and prestigious law firm was a different experience altogether when I later joined Allen & Gledhill. The high standards of professionalism, the quick response time, the expectations of continuous hard work no matter whether it was day or night during the initial years of practice were tough and built up my physical and mental stamina for rigorous law practice. In the midst of sacrificing my personal life, time with loved ones and other pursuits, the last 14 years of running my own firm have added further heavy responsibilities and stresses. There is more than one way to run a law firm. As I wanted to be a serious entrepreneur at the same time, I focused my energies also on the various aspects of the business such as marketing, information technology, and setting up of systems and processes. A former colleague once said, “Have you forgotten that you are the employer? Why push yourself so hard?” “The A&G training has become part of my DNA. I do not know how to work less hard or any other way,” I replied. There have been many low moments in the last 20 years. When I left Allen & Gledhill 14 years ago, I was close to leaving law. The wish to be an entrepreneur and the only product I knew how to deliver was legal services; hence I returned to law. It then came to mind that my favourite area of practice was family law. I also knew I wanted to practise family law in a non-adversarial manner which is best suited to helping couples and their kids. The rollercoaster journey has been filled with interesting family work, mediation work, collaborative family practice, child representative work, pro bono work and volunteering with the Law Society and the Courts. Friends tell me I cannot stop being a lawyer. Recently, Lynn Lee, owner of the famous Awfully Chocolate and I were sharing our different entrepreneurship journeys. We came to the conclusion that it is difficult work and we may not have

embarked on it if we knew how hard it would be. However, we know that we have to continue doing the work. To me, law practice is more than fulfilling my financial needs. In fact, I never thought a lot about the money making process. Being happy and contented was more important. Pursuing dreams and causes I believed in made life complete. There are just too many people to thank who have made an impact in my life and career during this journey. My father who nudged me into law and who is still the backbone of my law practice today. My mother who keeps reminding me of the value of continuous hard work. The Wife who stood by me through thick and thin during the last 14 years of running my own firm. She took the risk with me and made many sacrifices for me. My platoon sergeant Bala who encouraged me to become a lawyer during my national service days. Dr Ann Tan who inspires me by her dedication to family practice till today. My pupil master, Ronnie Quek whose two pieces of advice (“Life is nothing but about working hard” and “Treat the client’s problem as if it is yours and you will be able to think of many creative solutions”) are my guiding principles. The late Palakrishnan SC who through his passionate speeches, fiery passion in his eyes and dedication to law started a fire in my belly during my first year of practice. And the many senior counsels whom I have had the privilege to know and my fellow friends in law who inspire me through their own dedication of their lives to law. I have learnt a lot in the last 20 years of my life. I have always felt that my work was insignificant and that I should do more. However, looking back at the professional journey I have taken, I finally feel a sense of fulfilment. I feel complete and think it is time to focus on other aspects of life. There is always more to be done and the work of helping and making a difference to people is an endless journey. I also believe that if there is no more passion in the work we do or we feel the work is complete, then it is time to move on to something else. The future looks different and uncertain now. What it will bring, just like in the past 20 years is unknown and yet, exciting.

► Rajan Chettiar Rajan Chettiar LLC E-mail: [email protected]

Alter Ego

Lifestyle


My most valuable takeaway from a seminar on Ethics in Family Law last year was the reminder from one of its speakers, Professor Nahum Mushin, that regardless of which area of law you practise, a lawyer must remember that an ethical practice runs parallel to the way in which you advise and lawyer. But until fairly recently, a lawyer in Singapore would be hard put to find a consolidated set of rules, let alone any textbook teaching you about legal ethics. When I started practice, all we had was a blue ring binder which consisted of practice rulings and guidance notes from the Law Society

Lawyers’ Ethics: Doing What is Right, Not What is Easy

of Singapore. I also had an old beat up copy of Sir Thomas Lund’s Professional Ethics. Everything else I knew about professional ethics came from lectures by then President of the Law Society, Mr Chelva Rajah, SC, who taught us professional responsibility at the Postgraduate Law Course (as it was then known), from my late pupil-master, Palakrishnan, SC, colleagues in my first firm, and through interactions with other members of the Bar. Sometimes, the lessons I learnt from observation on the ground were lessons on what I ought not to do, rather than to emulate. Many of these came on the back of lessons learnt by fellow solicitors who had the misfortune of being caught out and faced with disciplinary proceedings. This seemed a shame when the run-in did not involve outright dishonesty, but rather came about due to pressure from a persistent client leading to a lapse in good judgment, or just someone trying to be too clever by half and thinking he or she could argue their way out of an ethical breach. I recall being a member of Council when the Law Society’s Ethics Committee set about putting together the Professional Conduct Rules 1998. Finally, there was a set of codified rules for quick reference. Even better when, in 2007, Professor Jeffrey Pinsler through Academy Publishing produced his seminal work, Ethics and Professional Responsibility: A Code for the Advocate and Solicitor. Some years after, the Law Society through its own publication, A Guide to the Professional Conduct Rules, fleshed out the PCR with real-life examples and references from real life cases referred to and rulings by its Ethics Committee. Over the years, the PCR has undergone various clarifications and amendments and with that we are fortunate to have a new reference in Understanding Lawyers’ Ethics in Singapore by Alvin Chen and Helena Whalen-Bridge. Rather than being a White Book-like reference with a rule by rule exposition on the law, this slim book sets out the general principles and thinking behind each Rule and breaks it down so that the reader can appreciate the rationale behind the rule. Apart from covering the usual topics of the lawyer-client relationships, issues of confidentiality and the difficult one of conflicts of interest, the book also covers management and supervision over other players in the law practice such as staff, paralegals, practice trainees etc. There is also a

Book Shelf

Invitationfor Contribution of Articles

The Singapore Law Gazette (“SLG”), an official publication of the Law Society, aims to be an educational resource for both practising lawyers and in-house counsel, a forum for debate, and a useful reference of high quality commissioned articles covering all legal specialties.

Members of the Law Society, non-practising legal professionals and professionals in related fields are welcome to submit well-researched manuscripts that are of educational merit and likely to be of interest to a wide-ranging legal audience.

Submissions are welcome throughout the year. All submissions should be unpublished works between 1,500 to 2,500 words and are subject to the Law Society’s review.

The SLG is the premier legal journal for all lawyers and other related professionals practising in Singapore. Our articles are read by 5,000 readers including practitioners, the judiciary, the legal service, the academia, libraries, overseas bar associations and a significant number of in-house counsel in Singapore.

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Lifestyle


whole chapter on ethics in pro bono work and access to justice. The book also bravely attempts to tackle the difficult balance to be struck between law as a business and a profession. This is a useful guide with references to not just recent local cases and decisions by disciplinary tribunals, but also with relevant guidance to be had from decisions of the Solicitor’s Regulatory Authority in England, as well as Australian decisions. In the concluding words of the Honourable Justice Coomaraswamy who wrote its Foreword, the “analyses will prove invaluable to the lawyer seeking to orient her moral compass in the uncharted and principles-based waters” of the new PCR.

Put another way, the why and how is important. People don’t just judge what you do; they judge why you do it and how you do it. And what and how you do it simply proves what you believe in. Understanding Lawyers’ Ethics in Singapore is a useful compendium for any lawyer, young or senior. It is a good resource to dip into when something in your guts does not feel right about something someone has done, or something you are about to do.

► Malathi Das Joyce A Tan & Partners LLC E-mail: [email protected]

Understanding Lawyers’ Ethics in Singapore is available from LexisNexis at $125.19.

Book Shelf

Notices


Information on Wills

Name of Deceased (Sex)NRIC

Date of Death Last Known AddressSolicitors/Contact

Person Reference

Lim Tiow Kim @ Lim King (M)S1229898F6 November 2013

344 Telok Kurau RoadSingapore 423870

Summit Law Corporation6597 8363

2017011214/11

Tng Meng Koon (M)S1410363E21 January 2017

Blk 140 Tampines Street 12#09-432Singapore 520140

Aziz Tayabali & Associates6533 0505

AT/ml/2451/02/2017

Lim Boon Hong (F)S0151635C30 May 2016

Blk 339D Kang Ching Road#18-362Singapore 614339

Jayne Wong Advocates & Solicitors6466 9221

JW/ll/82091/LA

Chelliah Jonathan (M)S0081956E30 December 2016

15 Chestnut CrescentSingapore 679370

Legal Options LLC6438 8039

16.416.JL

Ng Leong Bin (M)S0780816Z18 January 2017

23 Jalan ChermatSingapore 538373

Bernard & Rada Law Corporation6899 9888

FSY.17.0166.sg

Tan Bah Kee (F)S0780746E24 January 2017

23 Jalan ChermatSingapore 538373

Bernard & Rada Law Corporation6899 9888

FSY.17.0126.sg

Muneshwar Singh s/o Nepal Singh(M)S2031156H25 January 2017

30 Lange RoadSingapore 547992

UniLegal LLC 6236 2434

17.010.RKS.RK21.001.he

Low Kee Wai (M)S2672726Z11 February 2016

Blk 986B Buangkok Crescent#03-64Singapore 532986

Tan Leroy & Associates6429 0788

LAB/LST/L/7423/2016

Periyasamy Suppiah (M)S1163458C26 October 2007

Blk 820 Jurong West Street 81#01-226Singapore 640820

APL Law Corporation6225 4589

A.APL.1356.17.PRO

Sai Hua Koon (Sai HuaJun) (M)S7400352D14 January 2017

Blk 263 Waterloo Street#06-213Singapore 180263

Luna Yap LLC6532 0205

Kuan/17.02 PB

Notices


Name of Deceased (Sex)NRIC

Date of Death Last Known AddressSolicitors/Contact

Person Reference

Er Zong Lin Katherina (F)S9238610D31 December 2016

2 Brookvale Walk#01-01Singapore 599952

Cheong & Koh6226 4487

CGE/ER

Duan Xianyi (F)S2771544C19 January 2017

Blk 106 Bukit Batok Central#04-211Singapore 650106

Seng Sheoh & Co6533 2021

LSS/DXY.2017

Tan Cheng Quee @ Tan Buck Hon (M)S0431818H19 June 2015

5 Temple StreetSingapore 058557

Tan Chye Kwee6538 3330

CK wn 8147 2016 318

Law practices are encouraged to submit their Information on Wills requests via the online form available at our website www.lawsociety.org.sg > For Members > eForms > Information on Wills. Using the online form ensures that requests are processed quicker and details published with accuracy. Effective 1 January 2017, the rates for Information on Wills will be revised to S$107 per entry for law firms. All submissions must reach us by the 5th day of the preceding month.

anywhere and everywhere by downloading the online version at:

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Construction Disputes Counsel 8-13 PQE Energy Singapore [S41052]

• Leading energy company in Asia• Supporting primarily the O&G businesses• Handling construction disputes involving plants

located all over the world

Compliance Counsel 7-10 PQEEnergy and Commodities Singapore [S41036]

• Standalone role • Reporting to the Head of Compliance based in

Geneva • Relevant compliance experience with

commodities trading houses or from the oil & gas industry strongly desired

• Mandarin abilities required as this role will cover the PRC market

Legal and Compliance Counsel 3-6 PQEHedge Fund Singapore [S41047]

• To advise on all legal, regulatory and compliance matters relating to the hedge fund

• Funds and/or ISDA experience would be ideal • Candidates with general banking and/or

financial services experience will be considered

Legal Counsel 15+ PQEInformation Technology Bangalore, India [S40501]

• India qualified lawyer with strong team management and leadership skills

• Responsibilities entail negotiating high value, complex IT deals and general executive support

Senior Legal Counsel 10+ PQEConsumer Products Kuala Lumpur, Malaysia [S41049]

• Partner with HR and business to craft creative, pragmatic solutions to employment issues

• Develop and execute strategies that are reflective of company policy and compliant with applicable laws in the jurisdictions the company operates

• Strong leadership and project management skills

• Fluency in one Asian language• Travel within the APAC region is anticipated• Attractive package on offer

Regional Counsel 8-12 PQEConstruction Singapore/ Thailand/ Vietnam [S41031]

• Common law qualification • Solid construction experience gained at a large

law firm and in-house in the construction or related industry

• International experience preferred• Thai, Vietnamese or Indonesian language ability

a plus

Associate General Counsel, APAC 12+ PQE Cloud Computing Singapore [S41045]

• First lawyer for APJ, reporting to VP and General Counsel in the US

• Broad based experience with a leading software or technology company

• Specific experience in the cloud computing/ enterprise software/ social network industry would be ideal

• Track record in successful teaming with sales leadership and contract negotiation

• Ability to deliver in a demanding and entrepreneurial environment

Structured Finance Lawyer 10+ PQECommodities Singapore [S41042]

• SG / UK qualified • Experience in structured finance required• Trade finance, shipping litigation and treasury

experience would be advantageous • Global coverage• Mandarin language ability essential as this role

covers the PRC market• Travel to UAE is expected

Legal Counsel, South East Asia 10+ PQEFinancial Services Singapore [S41016]

• Sole counsel to act as trusted adviser to senior leadership team for the region

• Provide legal and regulatory advice on online payments and remittances, interbank settlements, foreign exchange and related issues

• Advise on general legal and regulatory risk relating to the sales, marketing and operations of the company in the region

• Knowledge of general banking, securities and financial services related regulations would be ideal

Corporate Governance Counsel 10+ PQEInsurance Singapore [S41035]

• Lead lawyer for corporate governance and all matters relating to the board of directors and running of board/committee meetings for group entities in Singapore and the APAC region

• An influencer, and accustomed to interfacing confidently with independent directors and senior management

• Experience liaising with MAS and some familiarity with relevant MAS regulations and guidelines

M&A Counsel 10+ PQEResources Singapore[S41053]

• Functional lead for M&A• Provide legal support to shared services (IT, HR,

finance) and a key business unit

Be Part of the MAS TeamHelp shape Singapore’s financial landscapeCapital Markets Department Assistant Director/Associate (Legal), Enforcement (Ref: 30019402_62011)At the forefront of a specialised area of practice, you will be a member of a team responsible for

the enforcement of the civil penalty regime under the Securities and Futures Act (SFA). You will

investigate potential market misconduct, including insider trading and market manipulation and

conduct litigation on behalf of the MAS for the award of civil penalties for market misconduct. You can expect to be challenged intellectually and professionally as you work closely with other regulators and

enforcement agencies. You will gain insight into how capital markets participants operate, and the rules and regulations

at play, as you serve as an important part of MAS' enhanced enforcement regime under the SFA. Your work will shape

the legal landscape for this area of Law, which is fundamental in safeguarding and enhancing the reputation of

Singapore as a financial centre and ensuring its continued growth. Requirements:• Recognised Law Degree and admitted to legal practice in Singapore • At least 1 to 3 years of Civil/Commercial Litigation experience • Willing to be a pioneer in an emerging area of practice • Ability to be innovative and creative in solving problemsApplication:

To apply, please log on to our career page at http://www.mas.gov.sg/careersInformation on the other positions is also available at the Singapore Public Service Job Portal at www.careers.gov.sg.

Closing Date: 7 August 2011

Advertise in the Law Gazette’s Appointments section.

For enquiries, please contact Perry Tan: [email protected] Tan: [email protected]

RR

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Pure Search:

Growing Private Practice Offering We are delighted to announce that Jane Kim has joined Pure Search.

Mike Wright

+852 2520 5298 [email protected]

Alexandra Starke


EA Licence No.: 12S5954 / R1222863

Sonia Taylor


Paulin Tan


EA Licence No.: 12S5954 / R1433787

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For a confidential discussion on your business needs, a bespoke career consultation, or for a more general discussion on the market, please contact one of the team.

Jane is an experienced legal recruiter; prior to joining Pure she covered both private practice and in-house for a specialist legal recruitment firm. In addition to her strong understanding of the Hong Kong market, she is very familiar with China, Singapore, Japan and Australia.

+852 2499 1244 | [email protected]

Jane will work closely with our existing team of Private Practice Legal recruitment specialists in the North Asia region:

Jane Kim