In-Conversation with Mr. Benjamin Szeto, Partner and Deputy Head of RHTLaw Taylor Wessing’s Private Wealth Industry Group

By Keith Wong and Choo Qian Ke

As a regional hub, Singapore remains an attractive location for both home-grown and international law firms. It comes as no surprise that RHTLaw Taylor Wessing has carved out a noticeable niche for itself in the Singapore market. As a law firm that delivers international capabilities with a network of more than 3300 legal professionals across 27 jurisdictions in Asia, the Middle East, Europe and the United States, the firm’s model is driven by its focus on helping clients succeed. RHTLaw Taylor Wessing’s ability to cater to the international needs of its clients is accentuated by its access to a wealth of international resources from the firm’s membership of the Interlex Group and the ASEAN Plus Group. For clients, RHTLaw Taylor Wessing provides a one-stop solution by operating as a single unit while delivering multi-jurisdictional and multi-disciplinary representation on complex transactions.

  From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

From left to right: Mr Szeto, Keith Wong (Journal Executive Editor), Choo Qian Ke (Journal Executive Editor), and Mr Siow.

RHTLaw Taylor Wessing offers a diverse range of tailor-made services. One example is the firm’s deep understanding of philanthropy as evidenced by its experience advising a suite of non-governmental organisations, international charitable organisations, charities and institutions of public character. In the same vein, RHTLaw Taylor Wessing is particularly established in the private-wealth sector, with particular expertise in advising entrepreneurs and business owners. The firm’s strong emphasis on issues of interest to clients, including an appreciation of art, reflects the firm’s commitment to understanding its client base. The result is a holistic Art Law Practice comprising lawyers who are passionate about the arts and armed with practical experience in dealing with the art world. With a suite of services in art financing, legacy planning and philanthropy, it comes as no surprise that RHTLaw Taylor Wessing’s achievements were recognised at the WealthBriefingAsia Awards 2018.

To better understand this sector, the Singapore Law Review spoke with Mr. Benjamin Szeto, partner and Deputy Head of RHTLaw Taylor Wessing’s private wealth industry group.

As a Registered Trust and Estate Practitioner of the Society of Trust and Estate Practitioners and an author for LexisNexis Practical Guidance Singapore on Trusts, Mr. Szeto has over 20 years of experience advising High Net Worth Individuals (“HNWIs”), entrepreneurs, financial institutions, listed entities and Fortune 500 corporations on a wide range of transactions. In the private wealth industry group, Mr. Szeto designs bespoke solutions, structures and strategies to assist clients with the key aim to separate business risks from family wealth.

The Secret Recipe Behind RHTLaw Taylor Wessing’s Impressive Achievements

At the Wealth Briefing Asia Awards 2018, RHTLaw Taylor Wessing was recognised as having demonstrated “innovation and excellence” in its business. As such, we started off our interview by seeking Mr Szeto’s views on what has set the firm’s work a tier above that of others to earn it its acolades.

Mr. Szeto highlighted RHTLaw Taylor Wessing’s industry group approach as one of the factors that contributes to the firm’s uniqueness. Unlike most other law firms that are typically organised according to practice areas such as litigation, corporate, intellectual property and conveyancing, RHTLaw Taylor Wessing adopts an industry group organisational structure. The wide range of industry groups span from consumer brands to energy and environment. Mr. Szeto himself helps helm the private wealth industry group. The advantage of having this approach lies in the partners’ ability to better serve the needs of clients from within each industry group. Clients from different industry groups have different sets of problems and issues that they need to address. By being attuned to the issues pertinent to the respective industry groups, lawyers at RHTLaw Taylor Wessing possess perceptive knowledge of the key concerns and considerations of clients specific to every industry group. Such an approach thereby allows lawyers to better understand their clients’ industries and tailor solutions that meet the clients’ needs.

Mr. Szeto also highlighted RHTLaw Taylor Wessing’s ASEAN-centric focus. Via the ASEAN Plus Group, which is a regional network of full-service and well-established law firms in ASEAN plus China, Taiwan, Hong Kong, Japan and Korea, RHT Law Taylor Wessing facilitates its clients' cross-border regional transactions, allowing them to navigate the region and its opportunities with confidence, providing an integrated suite of services across different practice areas and in different ASEAN jurisdictions. This is appropriate since the nature of private wealth is now very global, which alludes to the necessity to serve clients’ needs that may span across multiple jurisdictions. Being attuned to the nuances of working in Asia while also possessing the added perspective and expertise of an international firm has allowed RHTLaw Taylor Wessing to be very efficient in delivering bespoke and comprehensive legal services for clients and multi-disciplinary representation on complex cross-border transactions both in Singapore and on an international level.

Mr Szeto also shared that one of RHT Law Taylor Wessing’s strengths is in the areas of art and philanthropy. Art and philanthropy are very aspirational areas that a lot of private clients are most interested and passionate about. As such, having capabilities and expertise in these areas allow the firm to put together solutions that are not just about meeting legal needs but also about addressing the passions and aspirations of some of these private wealth clients.

Unravelling RHTLaw Taylor Wessing’s International and Regional Practice

Apart from engaging in legal work, Mr. Szeto also looks at regional business development aspects for the private wealth industry group. RHTLaw Taylor Wessing is extremely regional in their private wealth industry outlook. For example, the firm has a strong Indonesian client base, a strong foothold in Hong Kong and good dealings with clients from China. Additionally, they are looking at expanding to other ASEAN countries, especially markets like the Philippines and Vietnam.

RHTLaw Taylor Wessing also has a strong regional focus in its other industry groups and practice areas. They have established regional clients ranging from listed entities to top tier Fortune 500 companies and international banks. To address the various needs of its clients, RHTLaw Taylor Wessing advises on a variety of matters directly from the Singapore office, or will work with its partners in the ASEAN Plus Group on international matters. For example, a client seeking to complete a cross-border M&A transaction can deal with the firm without the need to separately seek advice across multiple jurisdictions. This is one of the forms of cross border support that the firm can provide for its clients. As noted by Mr. Szeto, these days, lawyers have to go beyond just doing the legal work, and must instead provide clients with an experience that is as seamless and efficient as possible.

What Is Private Wealth?

To gain deeper insight into Mr. Szeto’s line of work, we asked him to share certain challenges and points to note when working with private wealth clients. In dissecting the term “private wealth”, we were directed to two sub-groups, namely, the private client and the intermediaries.

In the first group, the private client includes HNWIs, the families, and the family offices. Generally, such clients tend to be the businessowners themselves. As for the second group, intermediaries include corporate parties such as private banks, trust companies and insurance groups.

A key point during our conversation was the importance of context and understanding the values, position, and internal dynamics of each group. Mr. Szeto highlighted the importance of understanding each client’s unique needs, business model and their long-term concerns. In the process, rapport is also developed, strengthening the long-term partnership between the client and the firm.

For lawyers engaged in this field, business development is paramount. Outside of Singapore, Indonesia and the People’s Republic of China are still key drivers of growth. While demand for lawyers in the private wealth sector is strong, the competitive climate demands effective solutions delivered through a seamless network.

As our conversation developed, the world of private wealth seemed all the more attractive. Amid the glitz and glamor often associated with the private wealth sector however, Mr. Szeto quickly pointed out the inevitable overlap with corporate work which one should be prepared to face. This stems from having to assist clients in fulfilling various objectives. Take for example, mergers and acquisitions between companies, purchasing of property in various regions, and the incorporation of new entities. One must also be well-versed in trust structures.

Additionally, the nature of a family business may have implications not often found in other areas. From his experience, a common issue is the tendency to not draw a clear line between the family business and the family fortune. In the long-run, this leads to complications with wealth preservation, legacy planning, and asset protection. Ideally, the two should be kept distinct, given the cyclical nature of businesses and its potential impact on the family fortune.

In areas like these, RHTLaw Taylor Wessing offers solutions to address the needs of clients irrespective of the region or jurisdiction concerned, where necessary liaising with other foreign counsel.

Multiplying Experiences and Perspectives

Impressed by Mr. Szeto’s wide array of experiences ranging from a Master of Science (Real Estate) from the National University of Singapore to a Diploma in Financial Management from the Association of Chartered Certified Accountants, as well as being a Trust and Estate Practitioner of the Society of Trusts and Estate Practitioners, we had to ask him for his thoughts on the insights that his multitude of experiences have rendered to his practice.

Mr. Szeto wisely propounded that lawyers have to understand that they are working with clients in a context. Client advice is multi-disciplinary in nature. Lawyers cannot look at issues in a silo. Moreover, clients these days expect lawyers to not just give good legal advice, but also to understand, comprehend and have a good grasp of the other commercial issues. To quote Mr. Szeto, “Now as lawyers, we are expected to be a jack of all trades, and a master of one”. In short, lawyers have to be good at law, but conversant in other areas as well.

Mr. Szeto shared that his training in real estate and finance have really given him the ability to have a much more rounded conversation with his clients. The width and depth of knowledge that he possesses help him to understand issues much better. In addition, there is no excuse or reason for him to feel intimidated when people talk about foreign non-legal concepts such as balance sheets or income statements. Furthermore, the real estate background is very important especially in the area of private wealth and in dealing with Asian-based families as real estate is a favourite asset class among high net worth clients. To be able to connect with them on a non-legal level and discuss about their real estate investments really goes a long way. Thus, Mr. Szeto personally feels that having skills outside law will help one to become a more rounded person, allowing one to have a more holistic view of various fields. Having qualifications, whether at a rudimentary level or at a more formal level, will definitely help any lawyer in practice.

Parting Advice

In response to our request for his advice and recommendations to aspiring lawyers and students, the first piece of advice that Mr. Szeto gave is to read more widely. While acknowledging the pressure and stress in law school, Mr. Szeto stressed that it would be ideal if law students had the opportunity and time to read beyond our core competencies in law. For instance, students interested in the private wealth space can go a bit deeper into the industry. There are many issues such as common reporting standards, investments, and diverse asset classes. Developments are vast and rapid, and for any student keen on pursuing a career in any particular space, it is good to start to have a feel of what is happening in that space, to explore and to keep abreast of developments by reading widely.

Mr. Szeto’s second piece of advice is to sharpen one’s people skills. Mr. Szeto encourages young lawyers and students to hone client development skills, interaction skills and interview skills, given that people skills are definitely one aspect of practice that cannot be neglected. For example, in the private wealth space, people skills are especially important as clients may not be so direct in their communications, so lawyers would need to figure out what exactly clients are trying to convey.

As concluding remarks, Mr. Szeto recommends young lawyers in their early years of practice to seize every networking opportunity possible. Ultimately, there is value in having a wide network of people that you can turn to for support, as the nature of lawyering is very people-oriented.

Indeed, a timely reminder that as service providers, we as lawyers and lawyers-to-be must always keep abreast with the human aspect of law.

The Singapore Law Review would like to thank Mr. Benjamin Szeto and RHTLaw Taylor Wessing for accommodating our members, Keith Wong and Choo Qian Ke. We are very appreciative of the opportunity to engage and share in such an inspiring and insightful conversation with Mr. Benjamin Szeto.

Singapore Law Review Annual Lecture 2018 - The Obsolescent Judge

By Zhao Junning and Ng Wei Siang

Introduction

The 30th edition of the Singapore Law Review Annual Lecture titled ‘The Obsolescent Judge’ was delivered by the Honourable Justice Aedit Abdullah on 16 October 2018. In a move befitting of the 30th edition of the Lecture, Justice Abdullah departed from traditional black letter law topics to discuss technological advances and their impact on the legal profession. The particular focus in his Lecture was their impact on the role of a judge. While Justice Abdullah prefaced that the Lecture would not be definitive as a forecast, the Lecture certainly delivered on his expectations to provoke some thought and discussion among the audience.

  Justice Abdullah delivering the 30th Singapore Law Review Annual Lecture.

Justice Abdullah delivering the 30th Singapore Law Review Annual Lecture.

Justice Abdullah discussed four main points during his Lecture:

I. Technological disruptions are not something new;

II. Societal responses determine the impact of new technologies;

III. The impact technological developments have on the legal profession;

IV. The future of judging.

I. Technological disruptions are not something new

It is hard to imagine that many of the things that are available to us were once technological innovations that disrupted various professions. Using the example of electrical lighting, Justice Abdullah noted how its advent rendered the profession of lamplighters obsolete. Justice Abdullah further mentioned that just like the lamplighter, various other professions are no longer existent due to technological innovations. Knocker-uppers used to wake workers up. Pin-setters used to assist in resetting pins in bowling alleys. Lighthouse keepers used to maintain lighthouses dutifully. Yet these have all become jobs of yesteryear with the advent of technology.

Justice Abdullah then posed a question to the audience: could the vision of the immutable, distant, and all-knowing judge be sustained in light of technological innovations?

Building on the question posed to the audience, Justice Abdullah observed that much of the structure of the legal system was due to history and tradition. The adoption of English Common Law in Singapore had a huge influence on the many court processes and institutional structures in place, such as the forms that have to be filed, interlocutory judgments, and cross-examinations. Justice Abdullah queried the audience: if one could design a system from scratch, would he or she set it up in the way it currently is?

Justice Abdullah highlighted, inter alia, that several considerations that might be addressed in the future in lieu of technological innovations include:

• Whether asynchronous hearings would be possible;

• Whether parties have to be present in a courtroom;

• Whether lawyers will be needed in all cases.

Many often forget that changes to legal systems are not new. Justice Abdullah gave the example of the writ system in England. Under the writ system, it was essential that a claim was framed in a specific manner and pursued in the correct court. It was only until the courts in England underwent a massive restructuring in the 19th century that the rules were less rigid.

II. Societal responses determine the impact of new technologies

While acknowledging that we are constrained by our history, Justice Abdullah suggested that we are at the cusp of a new era of development in the legal system. Nevertheless, societal acceptance guides technological developments and the impact they have.

Justice Abdullah highlighted four factors that affect the implementation of new technologies: cost, efficiency, access to justice, and autonomy.

With regard to cost, Justice Abdullah gave the example of the Concorde planes that used to fly between London and Singapore. While such technology was innovative for its time, high costs meant that such flights were uneconomical leading to their cessation.

Moving on to the factor of efficiency, Justice Abdullah indicated that efficiency affects whether a technological innovation will be successful. A technological innovation that allows one to save time is more likely to be successful.

As access to justice is an important aim in the legal profession, Justice Abdullah opined that technological innovations that increase access to justice are likely to find acceptance.

Lastly, Justice Abdullah noted that there is a strong desire for personal autonomy in contemporary societies: the modern person wants to be able to make decisions for himself or herself. The learned judge shared that he would check his symptoms on the internet before going to the doctor. The reason for doing so was not cost, but because he wanted to take charge of his own health. Justice Abdullah observed that there is a similar trend in the legal profession. Litigants-in-Person have demonstrated an increased willingness to file their own claims and affidavits.

These four societal factors exhibit a degree of pressure on the legal system and determine whether the technology is adopted.

III. The impact technological developments have on the legal profession

Justice Abdullah moved on to provide a quick survey of the various technologies that are in use in legal systems around the globe.

Turning first to the legal technologies present today, the first technology discussed by the learned judge was artificial intelligence: some law firms have adopted technology that helps them to analyse documents, draft contracts, aid in the discovery process, and predict outcomes. Beyond law firms, Justice Abdullah noted that the People’s Republic of China’s legal system has been very open to adopting artificial intelligence with predictive technology for litigants, and adopting technology to help their judges research and find relevant or similar cases. The learned judge further noted that the same could be said for the United States of America, with prediction systems that rival the Chinese in accuracy as well as programmes to help with, inter alia, bail and sentencing. The Americans also rely on artificial intelligence to assist in dispute resolution for online commerce, with programmes suggesting solutions for human controllers.

Justice Abdullah then discussed data mining, which he observed is generally used in conjunction with artificial intelligence to analyse data and provide solutions. The more data available, the higher the likelihood that the programme will provide an appropriate solution.

Lastly, the learned judge gave his views on blockchains. Justice Abdullah considered the possibility that with a trusted system, the need for human verification may be removed in many cases. The system would be able to get a result on its own once the process is initiated.

IV. The future of judging

With such technologies mind, Justice Abdullah considered their impact on the role of judges in the future.

Firstly, Justice Abdullah opined that where parties had something to prove as a matter of principle, they would still want to come to court.

Secondly, the learned judge noted that for commercial cases such as those pertaining to insurance, systems with a high level of predictive accuracy would result in a decrease in litigation. In such cases, the judge would only be required to act as a reviewer of the initial decision where parties are dissatisfied with the outcome the system provides. Additionally, Justice Abdullah noted a category of cases which are largely administrative which artificial intelligence has a greater role to play.

Thirdly, Justice Abdullah suggested that for a category cases where a balancing of various factors is required, the impact of predictive systems may be more limited. Situations mentioned by Justice Abdullah include: forum non conveniens applications; sentencing outcomes; bail applications; and an assessment of damages. As various factors often pull in different directions, finding the right solution is an art and the role judges play is still essential. In Family Law cases, while there are systems that attempt to predict the division of matrimonial property, there is a personal dimension to such cases which a machine may not be suited to deal with. Additionally, Justice Abdullah noted that with regard to sentencing outcomes, most people would not want their liberty to be at the hands of a machine, or even to be assisted by one.

Lastly, Justice Abdullah opined that the area of developing new rules will be closed off to artificial intelligence. While the learned judge noted that it is theoretically not out of the realm of possibility, it would take a long time before humans would be willing to hand over such decisions to machines.

Ultimately, Justice Abdullah suggested that trial judges in particular may have to evolve. A possible scenario is that role of the trial judge may have to be expanded to become more like a counsellor and assist the parties in achieving a lasting solution.

Conclusion

Justice Abdullah emphasised that the point of the lecture was not to predict what the future held, but to suggest that there will be technological disruptions to the legal system. The learned judge noted that no aspect of the legal system is immune from changes, judges included. Justice Abdullah also mentioned that the system of justice is about achieving justice for the individual citizen and it does not owe a living to anyone in the legal profession.

There is little doubt that Justice Abdullah’s message was well-received. The authors spoke to members of the audience at the conclusion of the Lecture during the dinner reception. A member of the audience noted that: “The Lecture was very timely, and it covered big issues. It was a great introduction to the issues covered.” Another attending professional from the technological sector said: “Justice Abdullah knows a lot about legal technology. The topic was relevant and is good to know areas in legal technology that Justice Abdullah considers more promising in the future.”

  Associate Professor Eleanor Wong presenting a token of appreciation to Justice Abdullah.

Associate Professor Eleanor Wong presenting a token of appreciation to Justice Abdullah.

Justice Abdullah ended the Lecture with a message to the students in the audience. While no one could be certain whether technological disruption to the legal system would ultimately occur, even if the legal system in the future was different, with the right effort, right thinking, and right energy, Justice Abdullah remained optimistic that the legal system would continue to serve the needs of the citizen.

On the subject of technology’s impact on the law, the Singapore Law Review is currently organizing a call for papers on law and technology with the region’s leading specialist in the field, LawTech.Asia. Full-length essay submissions can be made to journal@singaporelawreview.com by 29 October 2018, while shorter articles below 2,0000 will be received any time at hello@lawtech.asia.

The Turf Club Articulation of Wrotham Park Damages: A Curious Kind of Compensation?

By Stephanie Ng Wenli*

I. INTRODUCTION

What happens when a negative covenant is breached, specific relief is not available, and no financial loss was suffered? Owing to the ingenuity of the common law, one can claim for Wrotham Park damages. Formulated by Brightman J in Wrotham Park Estate Co Ltd v Parkside Homes Ltd1 [Wrotham Park], Wrotham Park damages represent a hypothetical sum of money that might reasonably be demanded by the claimant as quid pro quo for releasing the defendant from the obligation breached (‘hypothetical bargain measure’).2 While Brightman J’s creation was admirably inventive, it also incited a wellspring of controversy in succeeding years.3 In particular, a great deal of ink has been spilt in determining the conceptual basis of Wrotham Park damages – are they compensatory or restitutionary?

The recent case of Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua4 [Turf Club] sought to resolve this controversy.5 According to the SGCA, Wrotham Park damages are an established part of our contractual firmament, and may be characterised by three features. First, they are an “independent head” of damages.6 Second, they are “measured objectively” by simulating a hypothetical bargain between parties, and quantifying the award with reference to the defendant’s anticipated profits (as opposed to actual profits).7 Third, they are aimed at compensating the plaintiff for the “loss of the performance interest itself”,8 thereby making them compensatory and not restitutionary.9

The final point is the most controversial, and raises a central question that this article seeks to answer: Is the SGCA guilty of strong-arming Wrotham Park damages into a compensatory framework? Or is the decision a shining testament to the remedial flexibility of compensation? This article will show that the latter is the case. Going further, it will also explain why a compensatory account of Wrotham Park damages is nevertheless novel, and consider alternative accounts.

II. THE TEST DETERMINING THE AWARD OF WROTHAM PARK DAMAGES

Before dealing with the conceptual basis of Wrotham Park damages, it is critical to note the legal test that has to be satisfied before they will be awarded. According to the SGCA, Wrotham Park damages should only be awarded “in a specific and limited category of cases”,10 where the following three requirements are satisfied.11

(a) First, there must be a remedial lacuna, which arises when both orthodox compensatory damages and specific relief are unavailable, and yet “there is still a need to provide the plaintiff with a remedy to protect the plaintiff’s performance interest”.12

(b) Second, the obligation breached must be a negative covenant. This is because the hypothetical bargain measure underpinning Wrotham Park damages is most relevant and appropriate in cases involving negative covenants.13

(c) Third, the fiction of the hypothetical bargain cannot be taken too far. The court must be able “construct a hypothetical bargain between the parties in a rational and sensible manner”.14 This means that Wrotham Park damages will not be awarded in a case where “it would be irrational or totally unrealistic to expect the parties to bargain for the release of the relevant covenant, even on a hypothetical basis”.15 A clear example of this is when it is legally impermissible to negotiate for the release of the covenant.16

III. THE CONCEPTUAL GRID ON WHICH WROTHAM PARK DAMAGES HANG: MY LOSS OR YOUR GAIN?

To support its holding that Wrotham Park damages were compensatory in nature, the SGCA leveraged heavily on the concept of performance interest. The Wrotham Park measure was simply another tool in the court’s remedial arsenal that seeks to make good the plaintiff’s loss, thereby protecting his interest in contractual performance.17 What then, does performance interest mean?

A. Performance interest and the remedies that protect it

A good place to start is Friedmann’s seminal article, The Performance Interest in Contract Damages. It was duly cited by the SGCA in Turf Club,18 and is significant for a number of reasons. First, it established the plaintiff’s right to performance (and the defendant’s correlative duty to perform) as a fundamental aim of contract law.19

Second, it explained the remedial ways in which this right to performance is protected.20 Specific performance for instance, directly vindicates the right, with the plaintiff receiving exactly what he contracted for. In contrast, compensatory damages vindicate this right in economic terms, with the plaintiff receiving monetary compensation to the extent necessary to put him in the same position as if the contract had been performed.21

Third, it stressed the importance of distinguishing between rights and remedies.22 Indeed, it is easy to forget that the right to performance is almost never fully honoured at the remedial end. Compensatory damages—if awarded—are often cut back for one reason or another23 (see for example, the Ruxley reluctance to award cost of cure damages,24 or the discount applied when awarding loss of chance damages).25 This reveals how our compensatory remedies protect the plaintiff’s right to performance modestly at best. As such, the recognition of a measure of compensation as hypothetical (and one might say, fictitious) as Wrotham Park damages is nothing short of bold. It is therefore no surprise that the SGCA spent a great deal of time justifying and defending the compensatory nature of Wrotham Park damages. This will be discussed below.

B. The approach adopted: Wrotham Park damages as objective compensation

One of the perennial objections that the SGCA had to address was how Wrotham Park damages cannot be compensatory because the plaintiff did not suffer any identifiable loss for which compensation is warranted.26 The SGCA’s riposte was that the infringement of the plaintiff’s right to performance was itself a loss that merited compensation.27 In assessing the value of this lost right, the court will employ the hypothetical bargain measure. Crucially, the fact that such compensation is premised solely on the infringement of an abstract right to contract performance, without requiring the plaintiff to point to any subjective loss suffered, is what makes Wrotham Park damages so novel. Cunnington calls this objective compensation, which is distinct from subjective compensation. Its award is not based on any subjective loss identification, but on the objective valuation of the plaintiff’s right to performance.28 While this subjective-objective distinction to compensation was not expressly adopted in Turf Club, it is immensely useful in helping us understand why Wrotham Park compensation occupies such a special place in the landscape of contractual compensation.

When the law awards compensation for a breach, it is often taken for granted that such compensation is measured in subjective terms. This is why the plaintiff must prove “the fact of damage” before he can be compensated for it.29 Conventional compensation is subjective and therefore contingent on loss identification. In Turf Club however, the SGCA silently departed from this convention by grounding Wrotham Park compensation in objective terms instead. Such compensation would not flow from proving subjective loss, but from the objective infringement of performance interest.30 The significance of this shift cannot be overstated, as it boldly recognises a head of compensation that does away with loss identification.

However, this does not explain why the objective compensation account should be accepted over other accounts. One alternative is to persist in the compensatory analysis, but rationalise Wrotham Park damages as subjective compensation by creatively locating the loss in the lost opportunity to bargain for a release of the obligation breached.31 Another alternative is to relinquish the compensatory analysis altogether, and instead concede that Wrotham Park damages are restitutionary. The first alternative can be easily rejected – section C will show that such loss-based reasoning is too strained to make sense. In contrast, the second alternative does show some promise – this will be explained further in section D.

C. Alternative account 1: Wrotham Park damages as subjective compensation

The first alternative is to locate the plaintiff’s loss in the lost opportunity to bargain for a release of the obligation breached (i.e. ‘lost opportunity’ articulation).32 Unfortunately, this articulation runs into two problems. Firstly, it carries more than a whiff of artificiality. Such an articulation is constructed from a fictional narrative which casts the parties as willing negotiators, even though they may not actually have been willing to negotiate on the facts.33 It thus makes no sense to claim that there was a loss, because any ‘loss’ is entirely imaginary.

Secondly, close scrutiny reveals that this ‘lost opportunity’ articulation is not strictly a loss at all.34 A Wrotham Park loss is not a loss of future opportunity that may or may not materialise. Instead, it is a missed past opportunity that exists only in the hypothetical realm. In fact, one could even go as far to say that it was not so much lost as it was given up or foregone. The examples below illustrate this difference.

(1) Suppose P goes to a hairdresser (D) who offers the following service: In consideration of P donating a minimum length of hair (say, 5 inches) which D will then sell it to a wig manufacturer for a profit, he will waive any hairdressing charges that would otherwise apply. P enters into a contract with H, telling him that she is only willing to donate the minimum 5 inches, in return for the free haircut promised. However, D ends up cutting off over 15 inches in breach of contract, and proceeds to sell them for a good profit of $200. Assume also that D would have made a far lower profit of $50 had he only cut off 5 inches as promised. If the ‘lost opportunity’ articulation were recognised, P’s ‘loss’ would be the missed opportunity to demand from D a sum of money for cutting off an extra 10 inches of hair. This is what a missed opportunity to negotiate would look like.

(2) The facts remain the same. But suppose also that because of D’s breach, P is now left with a short bob that precludes her from participating in a beauty pageant, causing her to lose the chance to be crowned a beauty queen. This is what a loss of opportunity would look like.

Example (1) shows how there is no subjective loss at all in a Wrotham Park situation. This stands in contrast to example (2), where P’s subjective loss is the chance to become a beauty queen. It is thus submitted that the ‘lost opportunity’ articulation is less of a loss and more of a method of monetising the breached obligation as if it were a bargained-for contractual right that the defendant managed to obtain from the plaintiff. On the facts of example (1), we are valuing D’s breach by asking how much it would cost him if he were to bargain for the right to cut 10 more inches off P’s hair. This demonstrates how the Wrotham Park compensation that P receives does not flow from any loss, but from the above valuation exercise. In fact, this seems to be the underlying principle behind the SGCA’s decision to rationalise Wrotham Park damages as objective compensation for the infringement of the plaintiff’s right to performance – with this right being valued in terms of the amount the plaintiff would charge the defendant for releasing him from the obligation breached.35

D. Alternative account 2: Wrotham Park damages as restitutionary remedy

The other alternative is to rationalise Wrotham Park damages as gain-based restitution. Despite the academic support for the restitutionary account,36 the SGCA rejected it, stating that it is “unprincipled in so far as it implies that Wrotham Park damages should be available only where the defendant concerned derives a benefit from [his] breach of contract”. Accordingly, this is objectionable because it leaves an opening for a defendant to avoid making restitution on the basis that he did not make any gains from his breach.38

However, this objection assumes that the plaintiff’s restitutionary award can only be measured on a subjective basis, when it can also be measured on an objective basis.39 The concern that the defendant can avoid making restitution if he did not make any subjective gains no longer finds purchase under an objective approach, for he will still have to make restitution based on the objective gains he would have made as a result of his breach. What then, would be the objective gain made by a defendant in a Wrotham Park situation? Going back to example (1), this would be the expense saved by D from not having to bargain with P for the right to cut off an extra 10 inches of hair. In other words, the objective gain should relate to a saved negotiation expense.40 An objective restitutionary account that seeks to reverse the benefit gained by the defendant from saving himself a negotiation expense therefore proves to be very promising, as it explains many once puzzling features of Wrotham Park damages:

(a) It explains why Wrotham Park damages are calculated by reference to the defendant’s anticipated (and not actual) profits, as it concerned with objective (and not subjective) gains.

(b) It also explains why Wrotham Park damages are calculated by reference to a percentage of such anticipated profits. That percentage represents the expense that the defendant would have incurred in procuring a release from his contractual obligation, but which he saved because he chose to breach it instead.

This shows that a strong case could potentially be made for a restitutionary account of Wrotham Park damages. Unfortunately, English authorities have generally eschewed the restitutionary account.41 Turf Club shows that Singapore is following the same trend. Indeed, the other objections raised by the SCGA in rejecting the restitutionary account relate to contract law’s aversion to punishment,42 and the weight of past authority supporting a compensatory analysis.43 While it is hoped that future cases will examine the merits of a restitutionary account more satisfactorily, it seems that the rationalisation of Wrotham Park damages as objective compensation has been settled for now.

IV. CONCLUSION

In closing, this article has shown how Turf Club’s account of Wrotham Park damages as objective compensation is bold step forward, creating a novel head of compensation that does away with loss identification and premising it instead on the valuation of the performance interest. To that extent, Wrotham Park damages are, as the title suggests, a truly curious kind of compensation.


* LL.B. (Hons.), National University of Singapore.

[1] [1974] 1 WLR 798 [Wrotham Park].

[2] Ibid at 815. On the facts, this was assessed to be 5% of the profits that the defendants were expected to make from developing the land in breach of the negative covenant.

[3] See Andrew Burrows, “Are ‘Damages on the Wrotham Park Basis’ Compensatory, Restitutionary, or Neither?” in Djakhongir Saidov & Ralph Cunnington, eds, Current Themes in the Law of Contract Damages (Oxford: Hart Publishing, 2008) 165. See also David Pearce & Roger Halson, “Damages for Breach of Contract: Compensation, Restitution and Vindication” (2008) 28:1 Oxford J Leg Stud 73 [Pearce & Halson], where the authors observed the following trend at 91-92: “The judicial consensus appears to favour a compensatory analysis. Academics seem, on the whole, to prefer a restitutionary interpretation”.

[4] [2018] SGCA 44 [Turf Club].

[5] For a summary of the case, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[6] Turf Club, supra note 4 at [150], [164], [286].

[7] Turf Club, supra note 4 at [199], [205], [247], [268].

[8] Ibid at [205], [268].

[9] Ibid at [193].

[10] Ibid at [215].

[11] Ibid at [217]. For a comprehensive case summary, see Singapore Law Watch, “Supreme Court Note: Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal [2018] SGCA 44 (legal principles relating to the award of Wrotham Park damages)” (7 August 2018), online: <http://www.singaporelawwatch.sg/Headlines/supreme-court-note-turf-club-auto-emporium-pte-ltd-and-others-v-yeo-boong-hua-and-others-and-another-appeal-2018-sgca-44-legal-principles-relating-to-the-award-of-wrotham-park-damages>.

[12] Turf Club, supra note 4 at [219].

[13] Ibid at [227].

[14] Ibid at [230].

[15] Ibid at [230].

[16] Ibid at [232].

[17] Ibid at [170], [190]. Indeed, this concords nicely with Pearce & Halson, supra note 3, where the authors argue that the purpose of contract damages is not only to indemnify loss caused by the breach, but also to ‘vindicate’ the contractual right. The latter explains certain awards such as Ruxley damages, the broad ground in Panatown, and Wrotham Park damages.

[18] Turf Club, supra note 4 at [170].

[19] Daniel Friedmann, “The Performance Interest in Contract Damages” (1995) 111 Law Q Rev 628 at 629 [Friedmann].

[20] Ibid at 629-630.

[21] The well-accepted compensatory principle finds its origins in Parke B’s classic formulation in Robinson v Harman, (1848) 1 Exch 850, which has since been approved by a spate of local cases. See PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd and another appeal, [2017] 2 SLR 129, [2017] SGCA 26 at [62], and Turf Club, supra note 4 at [123]-[128].

[22] Friedmann, supra note 19 at 639.

[23] Mindy Chen-Wishart, “Specific Performance and Change of Mind” in Graham Virgo & Sarah Worthington, eds, Commercial Remedies: Resolving Controversies (Cambridge: Cambridge University Press, 2017) at 112.

[24] Ruxley Electronics and Construction Ltd v Forsyth, [1996] AC 344, endorsed locally in Yap Boon Keng Sonny v Pacific Prince International Pte Ltd, [2009] 1 SLR (R) 385, [2008] SGHC 161.

[25] Chaplin v Hicks, [1911] 2 KB 786.

[26] This objection was raised by the amicus curiae, Associate Professor Goh Yihan, at [205]. Also see Leo Zhi Wei, “Wrotham Park Damages Revisited” (February 2018), Gazette Feature, online: <https://lawgazette.com.sg/feature/wrotham-park-damages-revisited/> [Leo] who states that the case of Wrotham Park “is an example of an instance where the claimants were unable to prove any financial loss. In the absence of loss, it would be quite inaccurate to describe Wrotham Park damages as serving any compensatory function for the claimant at all”.

[27] Turf Club, supra note 4 at [205], [215]. This line of reasoning was analogised from the ‘user principle’ in the context of the tort of wrongful detention. Just as how the ‘user principle’ regards the invasion of property rights as itself a loss which yields proper recompense, so too the Wrotham Park doctrine regards the infringement of the right to performance as a loss that merits compensation (see [206]-[207]).

[28] Ralph Cunnington, “The Assessment of Gain-Based Damages for Breach of Contract” (2008) 71:4 Mod L Rev 559 at 562-563 [Cunnington].

[29] Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd and Another, [2008] 2 SLR 623, [2008] SGCA 8 at [27], citing McGregor on Damages, 17th ed (Sweet & Maxwell: 2003) at para 8-001.

[30] Admittedly, judicial recourse to the performance interest for the purpose of justifying certain remedial responses is not new. For instance, this was the very basis on which the ‘Panatown broad ground’ was conceived (originating from Alfred McAlpine Construction Ltd v Panatown Ltd, [2000] 3 WLR 946).

[31] Robert J Sharpe & S M Waddams, “Damages for lost opportunity to bargain” (1982) 2:2 Oxford J Leg Stud 290 [Sharpe & Waddams], cited in Turf Club, supra note 4 at [144].

[32] Formulated by Sharpe & Waddams, supra note 31, and relied on in subsequent English cases like Jaggard v Sawyer, [1995] 1 WLR 269, and Gafford v Graham, (1998) 77 P & CR 73.

[33] Leo, supra note 26, Cunnington, supra note 28 at 562-563.

[34] This point was forcefully put in Pearce & Halson at 92: “The difficulty with characteri[s]ing the award as compensatory arises, not because the loss cannot be expressed in financial terms, but because there was no loss at all.” Cf Jill Poole, Textbook on Contract Law, 12th ed (Oxford: Oxford University Press, 2014) at 421-422.

[35] Cunnington, surpa note 28 at 564: “In the absence of a factual pecuniary loss, the [Wrotham Park] award places an objective value on the claimant’s right to performance—a right which has been infringed by the defendant—and the award requires the defendant to pay for the right infringed.”

[36] See Ralph Cunnington, “The Measure and Availability of Gain-Based Damages for Breach of Contract” in Djakhongir Saidov & Ralph Cunnington, eds, Contract Damages: Domestic and International Perspectives (Oxford: Hart Publishing, 2008), Craig Rotherham, “‘Wrotham Park Damages’ and Accounts of Profits: Compensation or Restitution?” (2008) LMCLQ 25 [Rotherham].

[37] Turf Club, supra note 4 at [200].

[38] Ibid, citing Yenty Lily (trading as Access International Services) v ACES System Development Pte Ltd, [2013] 1 SLR 577, [2012] SGHC 208 at [66].

[39] Cunnington, surpa note 28 at 565 explains the difference between the objective and subjective restitutionary account well.

[40] Lionel D Smith, “Disgorgement of the Profits of Breach of Contract: Property, Contract and ‘Efficient Breach’” (1994-1995) 24 Can Bus LJ 121 at 138.

[41] See Rotherham, supra note 36 where the author observed at 26 that the compensatory account of Wrotham Park damages is “presently enjoying something of a renaissance”.

[42] Turf Club, supra note 4 at [197].

[43] Turf Club, supra note 4 at [202].


The PDF version of this article is available for download here.

Torn Fealty to the Courts and Science: Conundrums over Medical Expert Opinions (I/II)

By Agnes Lo, Bryont Chin, Leon Tay & Louis Lai

I. THE CONUNDRUMS OF THE MEDICAL EXPERT WITNESS AND COUNSEL

The Singapore courts are well-accustomed to hearing technically complex disputes, and disputes involving medical issues may present the most complex of these cases. Where judges and counsel are unable to divine the implications of facts and evidence at hand, they inevitably turn to expert witnesses. Expert witnesses assist in interpreting the facts, opining on what these facts mean, and provide specialized knowledge and information so very crucial for a judgment to be made.

Expert witnesses have become necessary ever since complexity in technical matters increased beyond a layman’s untrained capacity. It was understood that when the machines inevitably got involved in disputes, judges had to call on experts to advise them. However, judges do not blindly defer to the authority of the expert. Care is necessarily taken to differentiate between different opinions proffered by each expert, and not every testimony is given equal weight or admitted without any questions. A clear example where the judge departs from the views of an expert is in situations of bias. Another possible difficulty is in finding an objective approach to evaluate competing expert opinions. In such situations, whose opinion is to be preferred and given more weight? Is a professor’s academic opinion more reliable than that of an experienced practitioner lacking in qualifications? These questions continue to plague the courts today.

In a two-part series, this article sets out a preliminary examination of the main factors considered by the court in assessing the proper weight to be given to expert testimony. Medical experts are given foremost consideration as they feature prominently among the expert witnesses appearing before the courts. In a following article, we will also examine inconsistencies and incoherence in the courts’ use of expert evidence, and discuss recommendations for future use of expert evidence.

A. The use of medical experts in court

Medical expert opinions are widely admitted in criminal and civil trials. In criminal cases, these opinions are necessary to determine the psychological or physiological state of the accused persons, from which the judge can establish the legal elements of the offence. When deciding on sentencing, expert opinion also informs the judge of facts from which he can find exacerbating or mitigating factors. In civil matters, liability of the accused and damages to be awarded often depends heavily on the assessment of a medical expert. After all, judges are hardly able to decide what an appropriate sum for medical expenses should be, or how much income would have been lost as a result of an injury. Of course, medical expert opinions are most often adduced in physical injury cases,1 and when trespassing into the realm of medical expertise, judges are loath to substitute their own views for those of the proper experts in the field. In this regard, judges thus place a greater weight on the testimony of a defendant doctor’s own peers.

B. The present litmus tests for the admissibility and reliability of opinions of medical experts

Prior to the introduction of the adversarial criminal system in the 18th century, there was no legal procedure to define experts qua expert witnesses;2 experts would usually be summoned as jurors or witnesses. Evidentiary rules and objections were subsequently developed to standardise the types of evidence and how they can be presented before the court. While the rule against opinion being admissible as evidence emerged alongside the prohibitive rule against hearsay, experts’ opinions are an exception to this otherwise strict rule. This exception was necessary in the adversarial system for experts to provide opinions as witnesses without having observed the facts.

The present legal framework for the admission and giving weight to expert evidence bears two stages of analysis. Judges as finders of fact must contend with the question of whether the expert’s opinion is admissible as evidence, and if so, whether the expert’s opinion is of sufficient weight to be relied upon to establish a fact in issue. The former is governed largely by Section 47 of the Evidence Act and interpretive cases, while the latter is largely a matter expounded upon by case law.

Section 47 of the Evidence Act essentially requires counsel to establish three points to admit expert opinions as evidence:

(a) The pleaded point must be one of “scientific, technical or other specialised knowledge”.3 The ambit of such knowledge and whether a particular field would fall within it seems to be open to discussion, and local courts have yet to pronounce on the specific test. There have been suggestions for reference to tests in foreign jurisprudence, such as the more lenient test in Frye v United States4 (“Frye”); or a more stringent inquiry under Daubert v Merrell Dow Pharmaceuticals.5

(b) The individual giving the opinion must be an expert, who must have obtained the knowledge applied in his opinion “based on training, study or experience”.6 A judicial determination of whether this is made out is discretionary, and often turns on the qualifications, experience, and credibility of the expert in question.7

(c) In the round, the opinion provided must be “likely to assist” the Court in making its determination of fact. This is a lower threshold than that under the same provision before the 2012 Amendments to the Evidence Act.

Once admitted, the court generally gives weight to the expert opinion unless it is later found to be ”obviously lacking in defensibility”.8 In cases where only one expert opinion is adduced or where the experts are in agreement, there are few obstacles that may lead to the courts giving it less weight. This is contrasted to cases where competing expert opinions are adduced in court, where there is interest in how a judge chooses which view to adopt, especially so in the absence of legitimate technical experience. A brief survey of cases involving medical experts affirms a multi-factorial approach to be taken. Some of the factors are examined below.

1. Expert's qualifications and experiences

The most prominent factor is the expert’s qualifications. “Qualifications”, as explained by the Court of Appeal, refers not to an expert’s “professional titles” but instead refers more generally to the expert’s “knowledge and familiarity”.9 While it is generally true that actual experience lends more weight to an expert testimony than mere paper qualifications, the High Court has qualified this by stating in obiter that this was “not an inevitable rule of thumb”.10

The relevance of practical experience to the subject matter of the case is considered down to a micro-level: the court has differentiated between experts with clinical experience in cancer diagnosis and experts with clinical experience in cancer treatment,11 and between experts in the treatment of drug addicts and experts in recognizing signs of drug addiction.12

Other factors that affect the weight given to an expert testimony are his experience doing research relevant to the case at hand,13 and his experience practicing in the Singapore context.14 That a medical expert witness has experience treating one of the parties involved also lends authority to his testimony, since he would be more familiar with that party’s condition(s); however, his familiarity and personal relationship with the party raises clear possibilities of bias that must be dealt with.15

2. Impartiality of expert witness

The testimony of even the most qualified expert will not pass muster if it is tainted by bias. Hired guns fighting for the parties that called (and paid) them can hardly be relied on to provide accurate testimony. The influence of bias is great in practice due to monetary incentives being available, the priming of experts to be a part of the legal team, and the lack of safeguards against errant experts trying to manipulate facts to support a biased opinion.16

Although expert witnesses are appointed by parties themselves, their ultimate duty is always to the court.17 They cannot become mercenaries for hire, bending the facts for the highest bidder. Bias is especially dangerous for expert witnesses because, by definition, expert witnesses have expertise that the judge does not; an errant expert could easily mislead the judge and dictate the outcome. Therefore, judges must remain alive to the dangers of expert bias. Given the high stakes, judges impose only a low threshold for finding bias: even “perceived partiality or inclination” on the expert’s part can suffice to disqualify him for bias.18

3. Alignment with factual evidence

The words of even the most illustrious expert have no weight if it does not comport with the facts. Although disagreement in expert opinions is so common as to be almost inevitable, expert opinions must remain based on the facts established by the court. Expert testimonies that contradict the facts often prove fatal to that side’s case.19 When faced with insufficient evidence or evidence that contradicts the point their side wants to prove, it would be better for the experts to concede “where they ha[ve] to”20 than have the credibility of their entire report doubted by the court.

Factual evidence can also be used as a weapon to knock down opposing experts’ testimonies. In Hii Chii Kok v Ooi Peng Jin London Lucien and another,21 since the plaintiff’s expert could not provide “objective clinical data to support his assertions”, the court strongly preferred the defendant’s experts, whose testimonies “convincingly” countered the plaintiff’s expert’s testimony “point-by-point”.

Finally, expert testimonies should be precise and specific. Sweeping generalisations and conjecture are frowned upon, even more so when they are unsupported by evidence22 or outside the expert’s field of expertise.23

4. Internal consistency of testimony

Inconsistency in an expert’s testimony casts a long shadow over his credibility. The degree of internal consistency has been described as one of the “paramount” considerations that courts will consider when assessing such reports.24 Given that experts are meant to guide the court, admitting the evidence of a muddled and confused expert would be akin to the blind leading the blind. Therefore, courts readily reject inconsistent expert reports or grant them less weight. An example would be in Chua Thong Jiang Andrew v Yue Wai Mun and another25 where the expert’s quality was harshly criticized because of various self-contradictions in his oral testimony plus ambiguities and conflations in his expert report. The court issued a scathing dismissal of his report, describing it as an “illogical and unconvincing” explanation that was “completely off the mark”.

On the other hand, experts who can maintain a high degree of internal consistency in their testimony will enjoy high praise from the courts. In Public Prosecutor v Tengku Jonaris Badlishah bin Tengku Abdul Hamid Thani,26 the court described the prosecution’s expert in the most admiring terms, calling his opinion “consistent, impressive and able to stand up to objectivity”. It should be noted, however, that a dogmatic expert who refuses to change his view even in the face of overwhelming evidence to the contrary is not necessarily preferable to a reasonable expert who concedes in such situations. Experts need not defend their point to the death for fear of sounding inconsistent: courts understand and appreciate an expert changing his view to consider and account for shortcomings in his side’s case. In Khek Ching Ching v SBS Transit Ltd,27 the court noted that under “withering” cross-examination, the plaintiff’s expert had conceded that he was unable to confirm with complete certainty the causation of the plaintiff’s injury. Because he had continued to maintain his position while still conceded where he had to, the court commended him as a “generally good” expert witness that had testified “professionally”, and noted that he had been “of assistance to the court”.

5. Expert's methodology

Although courts are loath to put themselves into the expert’s shoes, an expert report derived using clearly flawed methodology will still be dismissed. It should be noted that an expert’s level of qualification is a separate and distinct factor from the quality of his methodology (although, hopefully, the former would lead to the latter). Ong Pang Siew v Public Prosecutor28 is the main case where this factor has been relevant. In that case, where the accused pleaded the defence of diminished responsibility, the court harshly criticized the prosecution witness for his poor investigative methodology29 when writing his report. The defence witness’ “undoubtedly more comprehensive” methodology meant that his report turned the tide, and led the court to allow the appeal.

6. Expert pushing his/her own case theory

While it is natural for experts to form case theories from prolonged exposure to a case, it is prudent for experts to remain objective in their testimonies and not venture into interpreting facts. Once experts accept the responsibility of testifying, they must resist this temptation and stay impartial to the facts. However, this is easier said than done.

In Eu Lim Hoklai v Public Prosecutor,30 the Court of Appeal explicitly pointed out the Prosecution witness’ “over-enthusiastic allegiance” to her own case theory, and how, in her “absolute certainty” that it was correct, she had overlooked its “inherent improbabilities” and “uncertainty in the evidence”.31 Although V K Rajah JA (as he then was) restrained himself to stating that her “reliability as an expert witness...may rightly be called into question”, the failure of the Prosecution’s “most important” witness in this important regard defeated the Prosecution’s case.32 Advocacy must be left to the lawyers, and the experts should keep within their own field.

C. Conclusion

As explained in the introduction, the exception of the expert witness was necessitated by the increasing complexity of legal disputes. In the years since, as the sight of experts in courtrooms became commonplace, rules in this area appeared and grew. Much of the law on the admissibility and weight of expert evidence was created by judges, since it is for them that the issue is most pressing. Judges rely on experts to guide them through their fields of expertise, to steer them through the pits of ignorance to reach justice, fairness, and truth. Thus, when searching for guides, judges are just like the rest of us: they look for persons with impartiality, experience, clarity, and intellectual honesty. Such paragons of virtue may be hard to find, but there is hardly an alternative. Trade-offs have to be made, and the second part of this series will examine them in greater depth.


[1] This has been established in a number of American studies. See Andrew W Jurs, “Expert Prevalence, Persuasion, and Price: What Trial Participants Really Think about Experts” (2016) 91 Ind LJ 353, which records that physicians make up the majority of experts at 37.5%; and Champagne et al, “An Empirical Examination of the Use of Expert Witnesses in American Courts” (1991) 31:4 Jurimetrics J 375, which observed that most experts were physicians (48%), and experts were mainly used in physical injury cases, and Samuel R Gross, “Don’t Try: Civil Jury Verdicts in a System Geared to Settlement” (1996) 44 UCLA L Rev 1, which observed that medical experts make up the majority of experts.

[2] Tal Golan, “The History of Scientific Expert Testimony in the English Courtroom” (1999) 12:1 Science in Context 7 at 9.

[3] Evidence Act (Cap 97, 2012 Rev Ed Sing, s 47(1).

[4] 293 F 1013 (DC Cir 1923).

[5] 509 US 579 (1993).

[6] Supra note 3 at s 47(2).

[7] Fok Chia Siong v Public Prosecutor [1999] SGCA 5 and Wong Swee Chin v PP [1981] 1 MLJ 212.

[8] Saeng-Un Udom v Public Prosecutor [2001] 2 SLR(R) 1; [2001] SGCA 38 at [26].

[9] Muhammad Jefrry v Public Prosecutor [1996] 2 SLR(R) 738; [1996] SGCA 44 [Jefrry] at [107].

[10] Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR(R) 983; [2007] SGHC 54 [Sakthivel Punithavathi] at [75].

[11] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2018] SGHC 35 (“Noor Azlin”) at [63].

[12] Jefrry, supra note 9 at [90]-[91].

[13] Supra note 11 at [23].

[14] Ibid at [63].

[15] Tan Teck Boon v Lee Gim Siong and others [2011] SGHC 76 at [7]; AOD, a minor suing by the litigation representative v AOE [2014] SGHCR 21 at [63].

[16] Jeffery D Pinsler, “Expert’s Duty to be truthful in light of the Rules of Court” (2004) 16 SAcLJ 407.

[17] Rules of Court (Cap 322, R 5, 2014 Rev Ed Sing), O 40A, r 2.

[18] Public Prosecutor v Thangaraju Sarukesi [2007] SGMC 7 at [71].

[19] See generally Sheila Leow Seu Moi v Public Prosecutor [2001] SGDC 376 [Sheila Leow]; Yeo Henry (executor and trustee of the estate of Ng Lay Hua, deceased) v Yeo Charles and others [2016] SGHC 220 at [63]-[67], [89], and [91]; Eu Lim Hoklai v Public Prosecutor [2011] 3 SLR 167; [2011] SGCA 16 [Eu Lim Hoklai] at [58], and Public Prosecutor v Tong Lai Chun [2003] SGMC 7 at [183].

[20] Khek Ching Ching v SBS Transit Ltd [2010] SGDC 220 at [95].

[21] [2016] SGHC 21.

[22] Sheila Leow, supra note 22 at [118]-[119].

[23] Eu Lim Hoklai, supra note 22 at [58].

[24] Sakthivel Punithavathi, supra note 10 at [75].

[25] [2015] SGHC 119.

[26] [1998] SGHC 401.

[27] [2010] SGDC 220.

[28] [2011] 1 SLR 606; [2010] SGCA 37.

[29] Firstly, the witness had failed to interview people who had recently contacted the accused person (thus breaching the diagnostic guidelines in the DSM-IV-TR, a reputed psychiatric manual). Secondly, he had also failed to investigate what the court considered to be relevant considerations, viz. the accused person’s changing jobs three times in the 18 months before committing the crime and his diabetes, which increased the risk of depression. Thirdly, he had interviewed the accused person in Mandarin even though he knew that the latter was more comfortable in Hokkien. The court thus condemned his methodology as an “unsatisfactory” one that “fell short of the requisite standard prescribed under the DSM-IV-TR”, especially since he, being the prosecution witness, would have much more available resources. Because of this, his testimony was held to be “less convincing” than that of the defence witness, who not only interviewed the accused in Hokkien, but also interviewed the accused person’s family members and the persons close to him.

[30] Eu Lim Hoklai, supra note 22.

[31] Eu Lim Hoklai, supra note 22 at [56]-[57].

[32] Eu Lim Hoklai, supra note 22 at [52] and [59].


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Pillars of Strength: NTUC Foodfare Co-operative v SIA Engineering

By Daniel Ang Wei En*

I. INTRODUCTION

The Singapore Court of Appeal’s recent judgment in NTUC Foodfare Co-operative v SIA Engineering1 [NTUC] shed light on the present Singapore position on the imposition of a duty of care in cases of negligence resulting in economic loss.

In NTUC, a driver had collided an airtug into a pillar supporting the floor which the claimant’s kiosk was situated on.2 It was undisputed that the airtug driver failed to keep a proper lookout, and that the kiosk itself was not materially damaged.3 Following the incident, the Building and Construction Authority closed the premises, and Changi Airport Group cut off the supply of electricity to the claimant’s unit.4 Correspondingly, the claimant claimed for: (i) damage to equipment resulting from disuse; (ii) loss of profits during closure; (iii) costs for rebuilding of the kiosk; and (iv) rental incurred during renovation of the kiosk.5

A key question that arose was whether the driver owed a duty of care to avert the pure economic loss suffered by the plaintiff. In this regard, the Court of Appeal’s judgment dealt with three important issues:

(a) The appropriate stage to consider issues of indeterminate liability;

(b) The test applicable to relational economic loss; and

(c) The assessment of physical proximity.

These will be considered below, in turn.

II. APPROPRIATE STAGE OF THE SPANDECK TEST TO CONSIDER INDETERMINATE LIABILITY

The Court of Appeal held that considerations of indeterminate liability are addressed by, and turn on, the findings on legal proximity within the first stage of the test set out in Spandeck Engineering v Defence Science & Technology Agency6 [Spandeck].7 The Court reasoned that since potential defendants must have had a sufficiently close and proximate relationship with the claimant, a finding of proximity necessarily limits the class of potential plaintiffs.8

The Court held that the proximity requirement addresses the concern of liability to an indeterminate class – here, it ensured that the driver was liable only for the pure economic loss suffered by the determinate class of business operators in the area affected by his airtug’s collision.9 Applying the proximity factor of knowledge, the Court of Appeal held that the driver knew that by driving a “powerful vehicle”,10 he could cause damage to structures in the area. Correspondingly, the kiosk operators who would suffer economic loss due to the damaged structures was limited to “a determinate class of persons”11 [emphasis in original] and confined to operators on the same floor as the driver.

Ostensibly, the concern of indeterminate liability is still a policy factor considered under the second stage of the Spandeck test. In considering the policy factors, the Court reiterated its finding (earlier in the proximity stage) that the proximity requirement limited the driver’s liability to a determinate class of claimants (business operators in the affected premises who suffered pure economic loss).12

III. THE APPLICABLE TEST FOR RELATIONAL ECONOMIC LOSS

The Court of Appeal held that the Spandeck test is the applicable test for imposing a duty of care in respect of relational economic loss. Although the issue of relational economic loss specifically had not been considered by the Singapore Courts before,13 the Court of Appeal arrived at this conclusion because of: (i) the doctrinal coherence accorded by the Spandeck test; and (ii) the lack of normative justifications to transpose foreign tests into the Spandeck test.

On the first reason, the Court of Appeal reaffirmed that the Spandeck test would be the “single test for a duty of care for all claims in negligence, regardless of the nature of the plaintiff’s loss”.14 On the contrary, distinguishing relational economic loss from other kinds of economic loss would be to “introduce an even finer distinction into the duty of care inquiry” than the previously rejected distinction between physical damage and economic loss.15

In respect of the second reason, after reviewing Australian and Canadian authorities, the Court of Appeal concluded that they did not show a compelling normative justification warranting a separate criteria, because: (i) such criteria has been strongly criticized;16 and (ii) its purpose of addressing indeterminate liability can be addressed by Spandeck’s proximity requirement.17 In fact, the Court of Appeal opined that the foreign authorities also contained elements of a “proximity-based analysis”.18

IV. THE ASSESSMENT OF PHYSICAL PROXIMITY

The Court of Appeal held that there was physical proximity between the Driver and the business operator. First, there was physical proximity in terms of the physical-spatial distance between the Driver’s operations and the affected premises.19 More importantly, the Driver’s operations were confined to a very restricted area which included the affected premises.20 The Court contrasted this with the lack of proximity between shopping mall tenants and a driver operating in a much wider public area who collided into a shopping mall.21 Ostensibly, such a driver would be indeterminately liable – possibly to every tenant in every shopping mall in which he passes.

V. CONCLUDING THOUGHTS

Despite insisting on coherence between the duties of care with respect to the various types of pure economic loss, the Court of Appeal’s application of the Spandeck test itself lacked theoretical neatness. By addressing the concern of indeterminate liability in tandem with legal proximity, the Court conflated the two by straddling two conceptually distinct stages.

While the inquiries of legal proximity and indeterminate liability may effectively lead to the same result of limiting the class of plaintiffs, the two are not analogous. Rather, the content of each inquiry is distinct. The former incrementally22 applies “substantive content … capable of being expressed in terms of legal principles” [emphasis added] to the instant factual matrix.23 However, the latter assesses public policy, possibly “involving value judgments which reflect differential weighing and balancing of competing moral claims and broad social welfare goals” [emphasis added].24

These approaches have been applied even in cases where, like NTUC, the same subject-matter was assessed at both stages of the Spandeck test. In Spandeck, the considerations of adhering to the parties’ contractual framework were assessed at both the proximity stage and the policy stage. Unlike NTUC however, in Spandeck, each stage had a different inquiry. At the proximity stage, the Court of Appeal in Spandeck considered it as part of the assumption of responsibility inquiry.25 In contrast, at the policy stage, the Court in Spandeck sought to avoid imposing “a parasitic duty unnecessary for the parties’ protection”.26

Instead, the Court of Appeal in NTUC conducted the same inquiry at both stages, risking the dangers of applying legal requirements at a Spandeck stage inappropriate for the inquiry. The Court of Appeal in Spandeck warned that “it would be better if the courts were to articulate [policy] concerns under the requirement of policy considerations, rather than subsume these concerns within the proximity requirement, which may then lead to an overall distortion of the legal test to determine the existence of a duty of care” [emphasis added].27 Although the Court of Appeal’s conflation in NTUC is readily justifiable on grounds of practicality, it might potentially result in confusing guidance for lower courts in the future.

Moreover, the effect of the Court of Appeal’s assessment of physical proximity in this case is rather concerning. The distinction drawn by the Court through its contrasting examples effectively reduces liability for defendants who operate in a large, undefined and changing area.28 This is counter-intuitive – from a risk-creation perspective, such defendants create larger risks, ostensibly supporting the imposition of a duty of care.

Additionally, at the proximity stage of the Spandeck test, the Court’s consideration of proximities (physical and causal) together with a proximity factor (knowledge) in NTUC follows the trend of the Court of Appeal flexibly applying the three proximities and proximity factors. This is consistent with the Court of Appeal’s expansion of recognised proximity factors in Anwar Patrick Adrian v Ng Chong & Hue LLC29, beyond assumption of responsibility and reliance, by interposing the knowledge factor within relational proximity.30

Moving forward, this decision clearly reinforces the Spandeck test as the defining test for the duty of care inquiry in negligence. Since its inception, the utility of the Spandeck test’s general application and its theoretical neatness have been pillars of strength supporting the test’s application. However, it remains to be seen whether the shifting of the Spandeck stages will, much like in this case, collapse these very pillars of strength that the Spandeck test was founded upon.


* LL.B. (Hons.) Candidate, National University of Singapore. I record a debt of gratitude to Wong Wen Jian (Judicial Associate, State Courts of Singapore) whose invaluable guidance has greatly benefited an earlier draft of this case note and my education in the law of torts. Any errors and infelicities are, necessarily, my own.

[1] [2018] SGCA 41.

[2] Ibid at [11].

[3] Ibid at [11]-[12].

[4] Ibid at [13]-[14].

[5] Ibid at 22.

[6] [2007] SGCA 37; [2007] 4 SLR(R) 100.

[7] Supra note 1, at [42]-[43].

[8] Ibid at [43].

[9] Ibid at [52].

[10] Ibid at [50].

[11] Ibid.

[12] Ibid at [54].

[13] Ibid at [59].

[14] Ibid at [60].

[15] Ibid.

[16] Ibid at [61].

[17] Ibid at [78].

[18] Ibid at [65].

[19] Ibid at [47].

[20] Ibid.

[21] Ibid.

[22] Supra note 6 at [82].

[23] Ibid at [80].

[24] Ibid at [85].

[25] Ibid at [108].

[26] Ibid at [101] and [114].

[27] Ibid at [85].

[28] See supra note 21, for more on the issue.

[29] [2014] SGCA 34; [2014] 3 SLR 761.

[30] Ibid at [148].


The PDF version of this article can be found here

Terrorism and the European Court of Human Rights

By Keith Jieren Thirumaran

I. INTRODUCTION

The Council of Europe currently consists of 47 European Countries.1 In order to join and remain a member of the Council of Europe,2 countries must ratify and adhere to the European Convention on Human Rights [Convention].3 Through the Convention, the European Court of Human Rights (“ECtHR”) is empowered to ensure that the Convention is adhered to4 as well as to develop binding5 case law to progress the interpretation of the Convention. The ECtHR interprets the Convention as a “living instrument”6 which has led to an expansive scope of its provisions. This article will examine the impact of developments in the ECtHR’s case law on governments and public officials in the context of combating terrorism. In particular, this article will examine the restrictions that the ECtHR has placed on parties to the Convention (“Member States”) under Articles 2, 3 and 6 of the Convention. It will be submitted subsequently that although restrictions on governments and public officials are generally necessary, the restrictions of the ECtHR are too far-reaching and unreasonable in the context of protecting the lives of innocent civilians.

II. RIGHTS AFFORDED UNDER THE CONVENTION

All humans have the right to life and this is enshrined in Article 2 of the Convention. Under Article 3 of the Convention, all humans also have the right to be free from torture as well as inhuman or degrading treatment or punishment. Terrorists are defined as people who use violence and intimidation to coerce governments and communities.7 These people commonly engage in unlawful activities that extend to the killing and torture of innocent civilians, thus depriving innocent civilians of these Convention rights.

Article 1 of the Convention provides that Member States must secure these rights and freedoms to everyone within their jurisdiction. This means that Member States must take measures to ensure that no individual is subjected to torture nor to inhuman or degrading treatment, whether committed by a public official or by private individuals such as terrorists.8 Similarly, Members must also take “preventive operational measures” to protect individuals whose lives are at risk from the acts of other individuals, such as terrorists.9

These are positive obligations placed on Member States and public officials to ensure that innocent civilians are not killed or tortured by anyone, including terrorists.10 They require Member States to take reasonable measures to prevent the killing11 or torture12 of anyone in cases where authorities had or ought to have had, at the material time, knowledge of a “real and immediate risk” of loss of life or torture.

However, these positive obligations are in addition to negative obligations placed on Member States not to kill or torture individuals within their jurisdiction, whether innocent civilian or terrorist.13

III. RESTRICTIONS ON NON-JUDICIALLY SANCTIONED STATE ACTIONS

A. Deprivation of Life

Article 2(2) of the Convention provides exceptions where a Member State is permitted to use force that might result in the deprivation of life.14 Under Article 2(2)(a), such force may be used “in the defence of any person from unlawful violence”. Such force must also have been “absolutely necessary” in order to achieve the aim in Article 2(2)(a)15 and must therefore be “strictly proportionate”.16

As Articles 2 and 3 are fundamental and basic values of Member States,17 the ECtHR subjects deprivations of life to careful scrutiny and will therefore consider both the actions of state agents who administer the force as well as surrounding circumstances such as the planning and control of the operation.18

The restriction on public officials using such force only when absolutely necessary is itself an uncontroversial restriction. An example demonstrating this necessity is the case of the innocent civilian who was shot dead by police officers on 22 July 2005 on board the London transport network because the public authorities had wrongly suspected that he was a terrorist.19 Although the civil case was settled by mediation,20 this case illustrates the need to hold public officials accountable for their counter-terrorism operations.

In most cases, the application of the test of “absolute necessity” (and its accompanying strict proportionality test) will be straightforward. The firing of guns directly at demonstrators21 and usage of high-explosive indiscriminate aerial fragmentation bombs in an area populated with innocent civilians are clearly more than absolutely necessary.22 However, in less straightforward cases, the manner of application of the test to the facts might result in a decision that places an unreasonable restriction on public officials, especially when applying strict proportionality.

In McCann v United Kingdom,23 4 soldiers shot dead 3 known terrorists in Gibraltar24 after they made movements that appeared as if they were attempting to detonate a bomb.25 It transpired that the terrorists were not armed and were only on a reconnaissance mission with the intention of eventually planting a bomb there.26 The ECtHR held that by not making sufficient allowances for the possibility that intelligence information could be wrong and by not preventing the terrorists from travelling into Gibraltar, the overall situation led to the killing of the terrorists which was therefore not absolutely necessary, violating Article 2.27 This controversial decision generated a strong political backlash in the UK against the ECtHR.28

It is submitted, in support of the minority judges, that the failure to make allowances for intelligence information being wrong was analysed by the majority judges with the benefit of hindsight.29 Both the majority30 and minority31 judges agreed that the authorities had incomplete information and had no choice but to formulate their operation on the basis of information available at that time. Difficult operational choices had to be made involving unpredictable human conduct.32 It must be recalled that the actions taken by the UK government must be judged based on the information available at the material time,33 a position that is akin to the approach under UK Domestic Criminal Law.34

Judges in the majority had earlier found that since the soldiers honestly believed, based on the information that they had, that shooting the suspects was necessary to prevent serious loss of life. The soldiers thus did not violate Article 2: “to hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others”.35 This stands in stark contrast against the subsequent finding that the UK Government violated Article 2, especially since the latter had also honestly believed, based on the information they had, that shooting those terrorists were absolutely necessary to save the lives of innocent civilians.

The consequences of the intelligence information being correct are devastating and as such no responsible government would have allowed the risk of such a detonation.36 It is therefore submitted that the authorities were correct in proceeding on the worst-case scenario basis.37 Failing to do so would show a “reckless failure of concern for public safety”38 and a breach of the authorities’ duty to protect innocent civilians as well as their own military personnel.39

It is also submitted, in support of the minority judges, that it would not have been practicable for UK authorities to arrest and detain the terrorists at the border.40 The UK Government’s reason for not arresting the terrorists at the border was because there was insufficient evidence to warrant the detention and trial of the suspects.41 However, this was rejected by the majority.42 The result of the majority’s finding places an unreasonable restriction on public authorities because arresting and releasing terrorists at that stage in time would have alerted the terrorists to the readiness of the authorities.43 The risk of a successful renewed attack on innocent civilians would increase as a consequence.44 Furthermore, the UK Government had no option of preventive detention of suspected terrorists as the ECtHR had previously ruled that detention without trial would be a violation of Article 5 of the Convention.45 The incompatibility of preventive detention with the Convention, even in the context of terrorism, has subsequently been reinforced.46

As such, the ECtHR’s imposition of a test of strict proportionality in determining whether the force was “absolutely necessary” effectively leaves the UK government without any options to protect innocent civilians from terrorists. On the facts of McCann v United Kingdom, there would have been nothing the UK government could have done and they would have been forced to risk innocent lives.

By way of contrast, on the opposite end of the spectrum, the USA frequently engages in targeted killings of terrorists via drones and airstrikes, even on targets located in foreign countries.47 This itself is submitted to be too extreme an opposing view.

It is submitted that a middle ground should be adopted where the proportionality test is moderated to be more lenient, in line with general standards relating to private- or self-defence. Under UK Domestic Criminal Law, strict proportionality is not applied for these doctrines of defence because it is unrealistic to expect anyone to weigh the exact amount of force necessary for self-defence in the midst of a situation.48 This position is similar elsewhere because the proportionality of a response should not be weighed on “golden scales” with the “luxury of time and calmness to think about the possible courses of action to take”.49 The detached objectivity that is natural in courtrooms long after the incident has taken place is an inappropriate test for such proportionality.50

B. Torture, inhuman or degrading treatment

(1) Obtaining Information

Torture as well as inhuman or degrading treatment or punishment are widely accepted to be morally wrong and unacceptable behaviour. The issue here is whether there are circumstances where such behaviour can ever be justifiable. Much of this discourse tenders to moral and philosophical quandaries as opposed to legal matters. It is therefore unsurprising that there is no international consensus on this issue. As much academic ink has been spilled on this issue – most of it being non-legal and beyond the scope of this article – the following will only provide a brief overview of the contrasting positions at the risk of oversimplification.

Deontologists favour an absolute moral prohibition because of the essence of human dignity which prevents such actions, regardless of any possible disastrous costs of an absolute prohibition.51 A common illustration is to let a nuclear bomb go off in a city rather than getting the information needed to stop it.52 The Council of Europe and the ECtHR both adopt positions in favour of the deontologist view. The prohibition against torture, and inhuman or degrading treatment or punishment is an absolute prohibition.53 This is irrespective of the conduct of the person,54 and has no exceptions and can have no derogations, “even in the event of a public emergency threatening the life of the nation”.55 Even under difficult circumstances such as fighting organized terrorism and crime, violations of Article 3 are absolutely prohibited.56 Furthermore, a sufficiently real and immediate threat of conduct violating Article 3 may also result in a violation of Article 3.57 In addition, any physical force that has not been made strictly necessary by a suspect’s conduct may result in a violation of Article 3.58 In light of the absolute nature of the Article 3 right, judicial corporal punishment such as caning has also been ruled to violate Article 3, and therefore cannot be applied to any person59 regardless of the crime committed.60

Under this view, one must also consider the possibility of suspects confessing false information to stop being tortured. Furthermore, suspects may not always possess the information as believed and may not even be the correct persons to apprehend.61 Furthermore, opening the door to “some” torture might lead to a slippery slope as it is not possible to limit the boundary on torture, leading to more extensive torture.62 Lastly, torture is more heinous than operational killings because a suspect is particularly vulnerable when held in police custody and deprived of liberty.63 Where the suspect is already entirely under the public authorities’ control, the authorities must bear a duty to protect him or her.64

Consequentialists, on the other hand, acknowledge that there may be some circumstances where torture may be necessary for the greater good.65 An example of the consequentialist view is the USA which engages in conduct that would violate Article 3 of the Convention during some of its interrogations.66

Under this view, a common example is known as the “ticking bomb” scenario where information is needed urgently to diffuse a bomb to save lives and torture is the only method that can obtain the information.67 In such situations, at varying levels, consequentialists agree that torture would be necessary.68 Beyond this common argument, it should be noted that in one case where the interrogation was held in breach of Article 3, the authorities obtained a “considerable quantity of intelligence information, including the identification” of 700 terrorists and solved 85 unexplained crimes.69

(2) Obtaining Convictions

Where subsequent evidence is obtained as a result of information earlier obtained during treatment that violates Article 3 (torture, inhuman or degrading treatment), and if the evidence (resulting in a conviction) is a direct result of the violation, then it is automatically unfair to use the evidence.70 The reason for this is because allowing such evidence to be admitted would be an incentive for public authorities to continue violations.71. This only applies where the evidence had a bearing on a conviction, as opposed to reliance on other untainted evidence.72 This means that the focus of the ECtHR is on the unfairness of the violation in light of the absolute nature of Article 3, as opposed to other factors in other jurisdictions such as reliability,73 probative value74 or voluntariness.75

While hardly any objection is taken to this approach, caution must be taken by the ECtHR to ensure that conduct in alleged violation actually meets the high thresholds of “torture, inhuman or degrading” treatment. The reason for this is because in interrogations, “some discomfort has to be expected”76 and it should be borne in mind that “the police work in difficult circumstances” such that removing “all doubt of influence or fear” would mean that the police “would never be able to achieve anything”.77

IV. RESTIRCTIONS ON JUDICIALLY SANCTIONED STATE ACTIONS

The ECtHR has decided that Member States cannot extradite a criminal to a Non-Member State where there are substantial grounds to believe that there is a real risk of torture, inhuman or degrading treatment or punishment for the criminal.78 In light of the fact that judicial corporal punishment such as caning has been held to be prohibited by Article 3,79 Member States are unable to extradite terrorists to Non-Member States to face caning. The ECtHR subsequently extended this to include the death penalty and execution,80 such that Member States can no longer extradite criminals to Non-Member States to face the death penalty.81 The ECtHR has also expanded this to include extradition to a Non-Member State where a terrorist faces a de facto irreducible life sentence without parole.82 The ECtHR has made clear that these restrictions also prevent expulsions83 and even to the deportation of illegal immigrants that have snuck into the country.84 In one case where extradition was prohibited, the ECtHR has went so far as to say that the “serious threat to the community” does not diminish the risk of a terrorist suffering harm when deported.85

Leaving aside any potential diminution of deterrent effect from death penalties or caning, the implication of the ECtHR’s decisions is that Member States are no longer able to get rid of terrorists that were originally not within their jurisdiction. Furthermore, an extension of this would be that terrorists from Non-Member States might specially flee to seek refuge in Member States since they cannot be deported back to face the death penalty or judicial corporal punishment even if they entered the Member State illegally.

A possible workaround in recent times has been to ensure that the state requesting for extradition agrees not to impose judicial corporal punishment on the suspect.86 This can logically be extended to securing an agreement not to impose the death penalty as well. It remains, however, less than ideal. Apart from questions of sovereign equality or those of imposing of subjective values on other states, any Non-Member State is free to decide that it will not agree to the imposed terms for extradition, thus leaving the Member State potentially stuck with a terrorist. Furthermore, the ECtHR may not even be persuaded by the assurances provided by the state requesting for extradition if it finds that the foreign government is unable to adequately guarantee a freedom from Article 3 treatment.87

V. CONCLUSION

The sum effect of developments in the ECtHR’s case law is that governments and public officials in the Council of Europe are severely hampered from combating terrorism. Member States must fulfil a test of strict proportionality when making decisions relating to deprivations of life and are also unable to detain nor remove terrorists from their countries. These considerable restrictions place the lives of innocent civilians at significant risk and are therefore unreasonable in the context of fighting terrorism.

It is suggested that in analysing state behaviour in respect of terrorism, a useful analogy may be drawn from the opposing goals and values of Criminal Justice Systems. In the Criminal Justice System, a balance is normally struck somewhere along the spectrum between a model that primarily aims to suppress crime88 (the “Crime Control Model”) and a model that primarily seeks to protect an individual’s rights89 (the “Due Process Model”). When it comes to terrorism, many innocent lives are at stake. The severity of the risks involved mean that the appropriate balance required must be shifted towards the values of the Crime Control Model. It is thus submitted that the better way forward is to focus on suppressing terrorism, with the necessary compromise on some of the values of the Due Process Model. As such, primacy must be given to the protection of innocent lives with the necessary evil of watering down some of the rights in the Convention.


[1] Council of Europe, Statute of the Council of Europe, CETS No. 001 (1949) at Article 26 (as at May 2018).

[2] Ibid at Articles 3 and 8.

[3] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950), as amended by Protocols No. 11 and 14.

[4] Ibid at Article 19.

[5] Ibid at Article 46.

[6] Soering v United Kingdom [1989] ECHR 14 at [102].

[7] The Concise Oxford Dictionary of Current English, 9th Ed, sub verbo, “terrorist”.

[8] Z v United Kingdom [2001] ECHR 333 at [73]; A v United Kingdom [1998] ECHR 85 at [22].

[9] Osman v United Kingdom [1998] ECHR 101 at [115].

[10] Ibid.

[11] Ibid at [116]; See also, Edwards v United Kingdom [2002] ECHR 303 at [121].

[12] Z v United Kingdom [2001] ECHR 333 at [73].

[13] Supra note 9 at [115].

[14] McCann v United Kingdom [1995] ECHR 31 at [148].

[15] Ibid.

[16] Ibid at [149].

[17] Ibid at [147].

[18] Ibid at [150].

[19] Armani Da Silva v United Kingdom [2016] ECHR 314, at [12] and [37]–[38].

[20] Ibid at [142].

[21] Simsek v Turkey [2005] ECHR 546 at [108] and [112].

[22] Kerimova v Russia [2011] ECHR 744 at [253] and [257].

[23] Supra note 14.

[24] Ibid at [199].

[25] Ibid at [196] and [197].

[26] Ibid at [219].

[27] Ibid at [213].

[28] Peter Cumper, “When the State Kills – McCann and Others v United Kingdom”, (1995) 4 Nottingham LJ 207.

[29] Joint Dissenting Opinion, McCann v United Kingdom, [1995] ECHR 31 at [8].

[30] Supra note 14 at [193].

[31] Supra note 29 at [8]

[32] Supra note 9 at [116].

[33] Ibid; see also Edwards v United Kingdom, [2002] ECHR 303 at [121].

[34] Criminal Justice and Immigration Act 2008 (UK), c4, s76(3).

[35] Supra note 14 at [200].

[36] Supra note 29 at [9].

[37] Ibid at [13].

[38] Ibid.

[39] Supra note 14 at [192].

[40] Supra note 29 at [11].

[41] Supra note 15 at [204].

[42] Ibid at [205].

[43] Supra note 29 at [11].

[44] Ibid.

[45] Brogan v United Kingdom [1988] ECHR 24.

[46] A and others v Secretary of State for the Home Department [2004] UKHL 56; A and Others v Secretary of State for the Home Department [2009] ECHR 301.

[47] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, (2010) United Nations, A/HRC/14/24/Add.6 at [18]-[22].

[48] Supra note 34 at s76(7)(a); Palmer v R [1971] AC 814 (Privy Council on Appeal from Jamaica).

[49] PP v Vijayakumar s/o Veeriah [2005] SGHC 221 at [52].

[50] Jai Dev v State of Punjab, AIR 1963 SC 612 (India) at 617.

[51] Robert J Homant et. al., ‘Is Torture Ever Justified – College Students’ Attitudes Toward Coercion/Torture’ (2008) 8 JIJIS at p 153.

[52] Ibid at p 153.

[53] Supra note 12 at [73]; Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[54] Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[55] Aksoy v Turkey [1996] ECHR 68 at [62]; Selcuk & Asker v Turkey [1998] ECHR 36 at [75].

[56] Ibid.

[57] Gafgen v Germany [2010] ECHR 759 at [91].

[58] Bouyid v Belgium [2015] ECHR 819 at [100].

[59] Tyrer v United Kingdom [1978] ECHR 2 at [35].

[60] Ibid at [34].

[61] Supra note 51 at p 154.

[62] Ibid.

[63] Ribitsch v Austria [1995] ECHR 55 at [36] and [38]; Bouyid v Belgium [2015] ECHR 819 at [100].

[64] Bouyid v Belgium [2015] ECHR 819 at [103] and [107].

[65] Supra note 51 at p 154.

[66] Department of Defense Joint Task Force 170 on Guantanamo Bay in Cuba, APO AE 09860, Declassified “Legal Brief on Proposed Counter-Resistance Strategies”, JTF170-SJA (31 October 2002).

[67] Supra note 51 at p 153.

[68] Ibid at p 154.

[69] Supra note 54 at [98].

[70] Ibid at [173]; Gocmen v Turkey [2006] ECHR 2003.

[71] Supra note 54 at [178].

[72] Ibid at [178]-[181] and [187].

[73] Poh Kay Keong v PP [1995] 3 SLR(R) 887 (Court of Appeal, Singapore) at [42].

[74] Muhammad bin Kadar v PP [2011] SGCA 32 at [53].

[75] Yeo See How v PP [1996] 2 SLR(R) 277 (Court of Appeal, Singapore) at [40].

[76] Ibid.

[77] Panya Martmontree v PP [1995] 2 SLR(R) 806 (Court of Appeal, Singapore) at [29].

[78] Supra note 6 at [91] and [111].

[79] Supra note 59 at [35].

[80] Al-Saadoon & Mufdhi v United Kingdom [2010] ECHR 282 at [120] and [137].

[81] AL (XW) v Russia [2015] ECHR 964 at [64].

[82] Trabelsi v Belgium [2014] ECHR 893 at [138] and [139].

[83] LM v Russia [2015] ECHR 908 at [126].

[84] Jabari v Turkey [2010] ECHR 369 at [42].

[85] Saadi v Italy [2008] ECHR 179.

[86] John Geddie and Robert Birsel (ed), “Singapore says won’t cane suspected bank robber if deported from UK”, (20 February 2018) Reuters World News, online: <https://www.reuters.com/article/us-singapore-bank-robbery/singapore-says-wont-cane-suspected-bank-robber-if-deported-from-uk-idUSKCN1G40Y9>; “StanChart robbery: Singapore agrees to UK request to not cane suspect if found guilty”, (20 February 2018) Channel News Asia, online: <https://www.channelnewsasia.com/news/singapore/stanchart-robbery-singapore-david-roach-uk-request-extradition-9974270>.

[87] Chahal v The United Kingdom [1996] ECHR 54 at [105].

[88] Herbert L Packer, The Limits of the Criminal (1968) Stanford University Press at p 159.

[89] Ibid at p 239.


The PDF version of this article is available for download here.

Joint Call for Papers Law x Technology: Transforming the Face of the Law

Technology disrupts for the better of those prepared. Legal practice is hardly impervious to the implications that technology brings. The advent of blockchain and machine learning technologies is an opportunity, and a potential cost if not pursued. Conversely, the use of technology is equally subject to legal regimes and institutions. Developing a sensitivity to the mutual interaction of the two forces is of utmost urgency as governments and peoples search for a firm footing.

The Singapore Law Review (“SLR”), Asia’s oldest student-run legal publication, and LawTech.Asia, Southeast Asia’s foremost law and technology review, are collaborating on a special issue of the Singapore Law Review journal and LawTech.Asia online publication on the theme “Law x Technology: Transforming the face of the Law”.

Singapore Law Review Journal

We will be accepting articles that are between 5,000 and 11,000 words in length. The topics can cover a wide range from the study of jurisprudence, to cutting-edge empirical research on legal matters, to discussions about recent legal developments, both locally and internationally.

Authors may expect a review of the articles by leading academics in the field of legal technology. Selected submissions will be published in the upcoming Volume 37 of the SLR next year.

Submission deadline: 29 October 2018

For submission guidelines, please visit: http://www.singaporelawreview.com/submissions/

Questions? Email us at journal@singaporelawreview.com

LawTech.Asia online publication

For contributors keen on more concise and insightful articles, we will be accepting submissions below 5,000 words long for online publication. We welcome work which brings a unique perspective to the discourse surrounding law, technology and policy issues, and aim to enrich the community here and globally by re-centering existing discussions around Southeast Asia.

Articles published on LawTech.Asia will also be published on the SLR’s online publication Juris Illuminae.

Submissions can be made any time, and selected articles will be published on a rolling basis.

Guidelines for submission are based on the SLR's Juris Illuminae format, and are available here at: http://www.singaporelawreview.com/submissions-juris/

Questions? Email us at hello@lawtech.asia

About the Singapore Law Review

The SLR is an independent legal publication run exclusively by students of the NUS Faculty of Law. We provide a platform for legal scholarship, with the aim of raising awareness of current legal issues and promoting critical legal thinking, writing, and discussion amongst students, academics and members of the legal fraternity.

About LawTech.Asia

LawTech.Asia is an online publication that brings a unique perspective to the discourse surrounding law, technology and policy issues with a focus on Southeast Asia. The march of technological advancements is unrelenting. Yet, there is a paucity of understanding about how these developments will influence – and are influenced by – underrepresented regions such as Southeast Asia (SEA). Expect the latest on legal innovation, policy reactions or recommendations, thoughts on larger conceptual themes, and feature pieces of individuals on the forefront of these changes.

Patel and Ochroid: Comparison and Attempts at Reconciliation

By Nicholas Chiang

I. INTRODUCTION

With its origins in contract law, Illegality has since been extended by the courts to other areas of law. Attempts to universalise the doctrine have led to considerable difficulty and inconsistency. The House of Lords decision of Patel v Mirza1 [Patel] was a valiant attempt to homogenise the approach to Illegality across all areas of law with a “range of factors” approach – but not without significant resistance, especially from jurists who prefer the deeply entrenched “rule-based” approach.2

Much closer to home, the Court of Appeal in the decision of Ochroid Trading Ltd v Chua Siok Lui3 [Ochroid] lays bare the difficulties in attempting to homogenise the doctrine, hinting that the ideal may indeed be a pipe dream. This article will examine the hurdles faced by the courts in formulating a universal approach in the law by comparing the English and local approach to illegality and discuss their compatibility.

II. ILLEGALITY IN CONTRACT

The majority in Patel laid out a “range of factors” approach which applies to common law illegality. Rejecting a mechanistic approach based on the reliance rule, Lord Toulson held that the courts should consider a) the underlying purpose of the prohibition which has been transgressed, b) any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) the “possibility of overkill unless the law is applied with a sense of proportionality.”4

A more measured ”middle ground” was also adopted by Lord Neuberger, as the Singapore Court of Appeal observed in Ochroid. His Lordship held that there is a “rule” which generally entitles the plaintiff to restitutionary relief,5 and approved of the “range of factors” in determining when exceptions should be made to this “rule”. This departed from the majority’s approach to ascertain the validity of the contract on a discretionary “range of factors”. The distinction between 1) if the contract was void due to illegality and 2) if restitutionary relief should be granted was also made by the court in Ochroid.6 It is thus unclear what Lord Neuberger’s approach is to the former question.

The minority, however, preferred a rule-based approach. Lord Sumption, with whom Lord Clarke agreed, endorsed the reliance test. Under this approach, the validity of a claim turned solely on “whether the person making the claim is obliged to rely in support of it on an illegal act on his part”.7 His Lordship clarified that the reliance rule does not relate to procedural matters. Similarly, the court in Ochroid recognised two conceptions of the reliance rule: the first refers to reliance in the procedural sense, whereas the other refers to the principle in a normative or substantive sense when a claimant seeks enforcement of the illegal contract through the claim.8 The latter conception is good law in Singapore.9 It is noteworthy that the principle is only engaged when a claimant seeks to enforce an illegal contract, but is inapplicable when restitution is being sought.10

The minority dissent was premised on the fact that a “range of factors” approach grants the courts too much discretion, and removes the need for the application of legal rules.11 Furthermore, the majority approach engenders uncertainty due to the incommensurability of various factors and its applicability depends on the nature or degree of the illegality. Lastly, his Lordship pointed out the “range of factors” approach was unnecessary because the reliance rule is able to achieve substantial justice in the majority of cases. Arbitrariness in applying the reliance rule can be mitigated by the availability of restitutionary remedies.

The local approach since Ting Siew May v Boon Lay Choo12 [Ting Siew May] is a discretionary assessment of the proportionality of vitiating a claim in response to a pleaded illegality. It is an approach that balances a range of factors similar to the majority in Patel, albeit with slightly different factors.13 However, while the Patel “range of factors” approach extends to all forms of common law illegality, the discretionary approach in Ting Siew May is to be applied only in the “residuary common law category… of contracts entered into with the object of committing an illegal act”.14

The Patel “range of factors” approach was rejected in Ochroid for three reasons.

Firstly, the approach was unprincipled because it created an arbitrary distinction between common law and statutory illegality by granting unfettered discretion to the courts over illegality at common law.15 If a court is of the view that a contract should not be void pursuant to an established common law category of illegality, the court ought to “reconsider that particular category altogether”.16

Secondly, Phang JA also questioned the necessity of the approach in achieving justice as the availability of restitutionary remedies is sufficient to mitigate the harshness of the traditional rule. The Ting Siew May approach, with its proportionality principle, could also allow the court to reject the defence of illegality to avoid disproportionate and unjust results.17

Lastly, the uncertainty engendered by the “range of factors” approach was left unaddressed by the majority in Patel. These were, namely, that the balancing exercise involves uncertainty through the actual balancing exercise itself, and that the factors are incommensurate with no one factor being determinative. These problems according to Phang JA, were less severe under the approach in Ting Siew May because firstly, it was confined to “contracts entered with the object of committing an illegal act” and secondly, was limited by the “overarching principle of proportionality”.18 However, such uncertainty was unacceptable outside that restricted context.

While the court in Ochroid unequivocally rejected the “range of factors” approach, it is submitted that because of the overlapping similarity of approaches there is a semblance of universality – at least in the realm of “contracts entered into with the object of committing an illegal act”. However, this optimism is arguably short lived , given that parties to a void contract often seek restitutionary relief - wherein a different set of rules and principles apply.

III. ILLEGALITY IN RESTITUTION

With the majority’s “range of factors” approach Patel extending to civil claims of all sorts, the distinction between types of claims becomes irrelevant. The same approach would be applied to restitutionary claims.

While the minority in Patel was more circumspect with respect to contractual illegality, the opposite can be said with respect to restitution. For Lord Clarke, the harshness of the reliance rule in voiding illegal contracts could be ameliorated by the availability of restitutionary relief which, ought to be granted as long as restitutio in integrum can be achieved.19

On the doctrine of locus poenitentiae, Lord Mance construed it as a general principle of rescission that “puts parties back in the position that they should have been in…but for the entry into the contract which was or became affected and unenforceable by reason of the illegality”.20 His lordship also did not restrict the principle by reference to whether the illegal purpose has been carried out. Similarly, Lord Sumption stated that there is a general right to the restitution of money paid under an illegal contract. This position is similar to Lord Neuberger’s endorsement of the “Rule” granting a general right to restitution.

Dicta in Ochroid diverges from both the majority and minority in Patel.21 Phang JA rejected the minority view – more specifically, Lord Sumption’s position that restitutionary relief ought to be extended even to monies paid under a contract to commit murder. The learned Justice of Appeal characterised Lord Sumption’s view as one that would produce offensive or objectionable outcomes that would “bring the court into disrepute and undermine the integrity of the law”. The majority approach was also dismissed with the same reasons vis-a-vis contractual illegality.

In contrast to Lord Clarke’s general principle of rescission which makes available restitutionary relief as long as restitutio in integrum can be achieved, a claim in unjust enrichment in the local context would however be subject to the defence of illegality and considerations of public policy – which is distinct from the defence of illegality in a contractual sense.22 The court in Ochroid further adopted the principle of stultification which prevents restitutionary recovery if doing so would “undermine the fundamental policy that rendered the underlying contract void and unenforceable in the first place [emphasis added]”.23 This position is premised on the inadequacy of the approach which grants a general right to restitution. Even if a restitutionary claim does not provide the plaintiff with a remedy identical to contractual performance under the illegal contract, there are nevertheless remaining dangers of stultification; permitting recovery might provide future plaintiffs with a “lever” that the plaintiff might use to extract contractual performance from the defendant, or it might produce a “safety-net” for parties looking to engage in the same sort of illegality.

On the doctrine of locus poenitentiae, Phang JA gave two reasons for rejecting the Patel minority’s position. The minority had determined that the doctrine should be relaxed as a “general principle of rescission”, such that recovery was permitted as long as restitutio in integrum can be achieved. In response, Phang JA first observed that such a broad and relaxed doctrine could undermine the need for the need for the claimant to establish the requirements for a claim in unjust enrichment. It would, more importantly, allow the claimant to avoid the stultification principle.24

Secondly, Phang JA objected that a broad doctrine is incompatible with the role of the doctrine itself – namely to encourage timely withdrawal from illegality.25 Hence, Phang JA emphasised the need for genuine withdrawal, as opposed to mere voluntary withdrawal. In sum, the court characterised the doctrine as one which should only be invoked based on the policy of discouraging unlawful conduct.

IV. ILLEGALITY IN TORT

While the “range of factors” approach has been extended to cover tortious claims in UK, the law is less settled in Singapore. The courts have traditionally used the close connection test, which according to Ooi Han Sun v Bee Hua Meng26 has a very limited application in tort – confining the test to situations where the injury is directly incurred in the course or commission of crime.27 The High Court in the recent decision of Md Shohel Md Khobir Uddin v Chen Yongbiao and another28 endorsed both the close connection test and the public policy approach of Hounga v Allen29 [Hounga] which can be considered the precursor of the test set out in Patel.

There are four possible paths that local courts may adopt to develop the illegality doctrine in tort law:

(1) Adopting the Patel “range of factors” approach.

(2) Continuing to use the close connection test.

(3) Attempting to reconcile both approaches.

(4) Extending the Ting Siew May approach to tortious claims.

Extending Ting Siew May’s approach (item (4), above) seems unlikely because the Ting Siew May approach is tailored for application to contractual illegality. For instance, one of the factors to be considered is the centrality of the illegality to the contract, which cannot be readily applied to tortious claims. It is suggested that an attempted reconciliation of the “range of factors” and “close connection” tests (item (3), above) will be the most viable way forward because the local courts are unlikely to only apply the Patel approach for the reasons set out above. However, the Patel approach (item (1), above) is potentially incompatible with the close connection test as it gives the courts the discretion to ignore the rule completely.

One plausible solution can be found in a flexible application of the close connection test, where policy considerations can influence the courts to either broaden or narrow the application of the test. In the case of Hounga, the Respondent (who was the employer) attempted to rely on the illegal employment of the Appellant (who was a victim of human trafficking) as a defence. With a flexible application of the close connection test, the Court could have applied the close connection test narrowly and find that the plaintiff did not fall within its scope and was thus entitled to recovery. The impetus behind a narrow application would naturally be overriding policy considerations, such as of discouraging human trafficking and exploitation in Hounga.


[1] [2016] UKSC 42.

[2] See e.g. Lords Sumption’s criticisms of a pliable “range of factors” approach to illegality in Les Laboratoires Servier & Anor v Apotex Inc & Ors (Rev 1) [2014] UKSC 55 at [19]-[21].

[3] [2018] 1 SLR 363; [2018] SGCA 5.

[4] Supra note 1 at [101].

[5] Ibid at [145].

[6] Supra note 2 at [64] – [65].

[7] Supra note 1 at [234].

[8] Supra note 2 at [128].

[9] As accepted in Ting Siew May v Boon Lay Choo and another [2014] 3 SLR 609; [2014] SGCA 28, at [127].

[10] Supra note 2 at [137].

[11] Supra note 1 at [261] – [264].

[12] Supra note 8.

[13] Ibid at [68].

[14] Supra note 2 at [110].

[15] Supra note 2 at [114].

[16] Ibid at [118].

[17] Ibid at [119].

[18] Ibid at [123].

[19] Supra note 1 at [220].

[20] Ibid at [193].

[21] Supra note 2 at [145].

[22] Ibid at [139] and [143].

[23] Ibid at [145].

[24] Ibid at [172].

[25] Ibid at [173].

[26] [1991] 1 SLR(R) 922; [1991] SGHC 73.

[27] Ibid at [15]

[28] [2018] 3 SLR 160; [2017] SGHC 109.

[29] [2014] UKSC 47; see supra note 25 at [33]-[34].


The PDF version of this article is available for download here.

The Trojan Horse of Therapeutic Privilege in Hii Chii Kok

By Naomi Koh Jie Min

I. INTRODUCTION

The 2017 Court of Appeal case Hii Chii Kok v Ooi Peng Jin London Lucien1 [Hii Chii Kok] has been heralded as “[t]he end of the ‘doctors know best’ era” by commentators.2 In a landmark decision, a Coram of five Judges unanimously rejected the unapologetically paternalistic Bolam-Bolitho3 test for negligent advice in favour of a three-stage test based on the UK Supreme Court’s 2015 decision in Montgomery v Lanarkshire Health Board4 [Montgomery]. As the Court put it, a “seismic shift in medical ethics, and in societal attitudes towards the practice of medicine” necessitated an approach that balances beneficence with patient autonomy.5 Hii Chii Kok is indisputably a welcome addition to local case law on medical negligence, but it should not be welcomed uncritically. A key issue with Hii Chii Kok lies in the unclear scope of the defence of therapeutic privilege6 to a claim of negligent advice. In fairness to the Court of Appeal, the doctrine of therapeutic privilege, as Mulheron observes, “has suffered from an almost complete lack of judicial delineation in English law”7 and by extension, Singapore law. However, the cost of leaving therapeutic privilege undefined is high; it leaves the Hii Chii Kok test open to abuse.

II. THE POSITION BEFORE HII CHII KOK

A. Singapore: Gunapathy

To understand Hii Chii Kok, one must consider the state of the law that preceded it. Locally, Khoo James v Gunapathy d/o Muniandy8 [Gunapathy] stood for the position that a two-stage inquiry was required to determine whether a professional had breached his duty of care: namely, whether the expert (1) directed his/her mind to the comparative risks and benefits, and (2) reached a “defensible conclusion”9 after balancing risks and benefits. In other words, the Court of Appeal had adopted the Bolam test of the ordinary skilled man exercising and professing to have a skill,10 with the Bolitho addendum that the conclusion reached must have a logical basis.11 Further, and more pertinently, the Court accepted that the Bolam-Bolitho test applied to pre-treatment advice, following the House of Lords in Sidaway v Bethlem Royal Hospital12 [Sidaway].

B. UK: Sidaway Overuled in Montgomery

Montgomery amended the standard for risk disclosure to one where the doctor is:

“[U]nder a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”13

In this decision, the House of Lords effectively overruled the test in Sidaway. Although, as Hobson observes, their Lordships tried to “frame Montgomery as a development of Sidaway ... to show that the development from Sidaway to Montgomery is smooth”,14 in principle Montgomery effectively displaces the concerns and policies that undergirded Sidaway’s stance that Bolam-Bolitho applied to medical advice.

III. HII CHII KOK IN BRIEF

In Hii Chii Kok, the Court acknowledged the increasing recognition of patient autonomy across common law jurisdictions.15 More specifically, the scope of patient autonomy is greater in relation to medical advice, which guides patients to make an active choice.16 Hence, the Bolam-Bolitho test was no longer applicable in relation to advice. Rather, the Court endorsed a three-stage test (referred to as the “Hii Chii Kok test”).

In the first stage of the Hii Chii Kok test, the Court answers the question of what information the doctor has a duty to disclose. This comprises of what a reasonable person in the patient’s position would wish to know, as well as information that the doctor knows or ought to have known would be important to the particular patient in question.17 The first stage therefore effectively echoes Montgomery.

At the second stage, the Court evaluates whether the doctor was in possession of the pertinent information. If answered in the negative, the Court then has to assess whether the doctor’s ignorance arose from negligence in diagnosis and treatment. This inquiry would fall under the ambit of the Bolam-Bolitho18 test.

If the second stage is answered in the affirmative, then the final question is whether the doctor’s withholding of information was justified. The Court declined to limit the scope of potential justifications, but identified emergencies, waivers, and therapeutic privilege as specific instances in which a doctor may withhold information from a patient.19 It is the exception for therapeutic privilege that is contentious as further explored below.

IV. BOUNDARIES OF THE THERAPEUTIC PRIVILEGE EXCEPTION

A. The Exception

Although Hii Chii Kok purports to eschew the Bolam-Bolitho test in favour of a more expansive paradigm with greater room for patient autonomy, questions have been raised as to the efficacy of the revised test in promulgating these goals. While the Hii Chii Kok test is a step forward with a more patient-focused approach, the wide yet murky scope of the therapeutic privilege exception creates a very real concern. If not properly defined, this exception leaves an opening for medical paternalism to reassert itself. As discussed below, doctors could infringe on a patient’s right to make an informed decision under the guise of the patient’s supposed inability to do so.

What do we know about the therapeutic privilege exception? The Court of Appeal has suggested that it applies exclusively in “exceptional circumstances”,20 but has been vague on the precise details of the test. Ostensibly, it is an objective factual inquiry21 as to whether the patient is likely to be harmed disproportionally to the impact of being provided with the information in question. Showing advertence to the reality that the therapeutic privilege exception is prone to abuse, the Court explicitly stated that the exception should not preclude patients from making a choice merely because the patient’s decision appears contrary to their interests.22 However, and albeit discrepantly, patients who may choose not to undergo “relatively safe treatments that [could] drastically improve their quality of life” may be caught under the exception.23 Moreover, patients who possess mental capacity but also have impaired decision-making abilities are caught under this exception.24

The Court’s attempt to delineate the boundaries of therapeutic privilege is unsatisfying. For one, must the “serious physical or mental harm”25 be medically recognised? Further, would “physical or mental harm” capture scenarios where the anticipated harm arises from the patient’s anticipated refusal to undergo treatment? Given the Court of Appeal’s observation that therapeutic privilege would include “certain geriatric patients who … may be ‘easily frightened out of having even relatively safe treatments that can drastically improve their quality of life’”,26 this appears to be the case. However, this statement is problematic, especially in light of the potentially conflicting Mental Capacity Act27 [MCA] as discussed below.

The confusion that the therapeutic privilege exception generates is exacerbated by the reality that the three stages of diagnosis, advice, and treatment are not mutually exclusive. As the Court itself in Hii Chii Kok noted, “a single step in the medical care process will engage more than one aspect of the doctor’s duty, and the different aspects will then be in play concurrently”28. This permeability between stages is an issue given that it affects the test to be applied and consequently whether the therapeutic privilege exception would even come in play.

This problem was made apparent in Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd29 [Noor Azlin]. In that case, one of the issues in dispute was whether the alleged negligence fell under the scope of diagnosis and treatment, or advice. The plaintiff argued that the defendants failed to advise her of the risk of cancer, such that she was unaware that other diagnostic options existed and did not make any further investigations. Nonetheless, the High Court found for the defendant. The lack of such advice stemmed from the defendants’ professional diagnosis that cancer was not a likely cause of the plaintiff’s complaints. Hence, the proper test to be applied was the Bolam-Bolitho test. Although the decision in Noor Azlin is not in itself controversial, the lack of a clear directive on how the stages are to be distinguished is troubling.

B. Therapeutic Privilege and the Mental Capacity Act

The MCA was enacted to regulate the decision-making process on behalf of those who lack capacity and hence are unable to make decisions for themselves. At first blush, the Hii Chii Kok test has no ostensible relation to the MCA; the former addresses the question of whether the patient’s consent was informed, while the latter deals with treatment in a situation where the patient is incapable of consenting.

However, it is unclear whether a doctor may evade liability for non-disclosure under the MCA in specific situations. More specifically, in light of the undefined boundaries of the therapeutic privilege exception, the implications of the MCA on the Hii Chii Kok test should be explored given that both fundamentally affect whether the principle of patient autonomy can be overridden by the patient’s lack of decision-making capacity. Under the Hii Chii Kok test, therapeutic privilege is explicitly raised as a defence to a charge of negligent advice where “beneficence comes to the fore”,30 echoing the MCA requirement that the decision be made in the “best interests”31 of the incapacitated individual.

Under s 7(2) of the MCA,32 a defendant doctor would not incur liability for an act done in connection with the care and treatment of the plaintiff, assuming that his or her act would not have attracted liability if the plaintiff hypothetically could and did consent. The defendant medical professional must take reasonable steps to establish whether the plaintiff lacks capacity. In addition, he or she must have reasonably believed that the plaintiff lacks capacity, and that it is in the plaintiff’s best interests that the act be done.33 It is conceivable that the “act” in this situation would extend to non-disclosure on the basis of therapeutic privilege. Which acts, therefore, would fall under the ambit of the MCA, and which would fall under the ambit of the Hii Chii Kok test?

The distinction between the two appears to be one of degree. For the therapeutic privilege exception, the Court suggested that it “should extend to cases where although patients have mental capacity, their decision-making capabilities are impaired to an appreciable degree34 [emphasis added]. In contrast, the MCA arguably requires total incomprehension35 or total inability36 to use or weigh information in the process of decision-making. Ultimately, however, the outcome regardless of which is applied is the same: both act to relieve the defendant of tortious liability.

Crucially, however, the MCA explicitly provides that a person is not to be treated as unable to make a decision merely because said decision is unwise.37 This point has been made earlier by Low, who argues that an “informed decision is not synonymous with [a] good decision”.38 This stands in stark contrast to the principle of patient autonomy apparently espoused by Hii Chii Kok – namely, that a doctor may justify omissions on the basis that he or she believed that the patient would be “frightened out of having even relatively safe treatments that can drastically improve their quality of life”.39

Clearly, a successful finding that the patient was fully incapacitated under the MCA is significantly more onerous than the finding that the patient was of a class to trigger the therapeutic privilege exception under Hii Chii Kok. Consequently, it should stand to reason that the corresponding boundaries of the test in Hii Chii Kok should be narrower. Since both exculpate a doctor facing a charge of negligence, it would be logically inconsistent to allow a doctor to prove less under the Hii Chii Kok test.

V. CONCLUSION

Ultimately, the therapeutic privilege exception as it stands is problematic because it is unclear. While it is meant to relate to “exceptional”40 situations, Hii Chii Kok does not provide a workable litmus test for when a situation would fall within its boundaries. Rather, Hii Chii Kok appears to take an expansive view of therapeutic privilege – perhaps more so than other jurisdictions. Pertinently, the House of Lords in Montgomery expressly rejected41 the defendant doctor’s argument in that case that it was “not in the maternal interests for women to have caesarean sections”42.

Granted, it is within the bounds of plausibility that a patient could be clearly and utterly incapable of making the required decision, but not trigger the provisions of the MCA. There reasonably is a space for the therapeutic privilege exception – but the current boundaries of the test are too wide. With respect, further clarification is essential.

In fairness to the Singapore Court of Appeal, the problems surrounding the doctrine of therapeutic privilege apply across jurisdictions. As Mulheron establishes, “the reality is that there is one clear instance of therapeutic privilege in English law”, and this rarity of application hampers the creation of a coherent, articulate doctrine.43

However, this rarity does not justify the continuing confusion surrounding therapeutic privilege. Locally, about 10% of the population suffers from anxiety and depressive disorders.44 This segment – along with the overly anxious, the hesitant to undergo medical procedures, and perhaps even the simply cautious – risk being caught unnecessarily by too expansive a doctrine. Ultimately, for Hii Chii Kok to truly represent a shift in medical ethics towards upholding the principle of patient autonomy, the therapeutic privilege doctrine must be re-considered.


[1] [2017] SGCA 38; [2017] 2 SLR 492.

[2] Hairul Hakkim and Kevin Ho Hin Tat, “The end of the ‘doctors know best’ era – from medical paternalism to patient autonomy”, Singapore Law Blog, (16 July 2017) online: <http://www.singaporelawblog.sg/blog/article/191> accessed 10 June 2018.

[3] Supra note 1.

[4] [2015] UKSC 11; [2015] AC 1430.

[5] Ibid at [120].

[6] Also termed “doctor’s privilege” or “therapeutic exception” in some cases.

[7] Rachael Mulheron, “Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis” (2017) 70:1 Current Leg Probs at 149.

[8] [2002] SGCA 25; [2002] 1 SLR(R) 1024.

[9] Defensible is not to be equated with reasonable. See Gunapathy, ibid at [65].

[10] Specifically, “[a doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” [emphasis added]: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587.

[11] Yeo Peng Hock Henry v Pai Lily [2001] SGCA 72; [2001] 3 SLR(R) 555 at [16], as affirmed in Gunapathy at [52], [61].

[12] [1985] AC 871 (HL).

[13] Supra note 4 at [87].

[14] Clark Hobson, “No (,) More Bolam Please: *Montgomery v Lanarkshire Health Board*” (2016) 79(3) MLR 468.

[15] Supra note 1 at [116].

[16] Ibid at [93].

[17] Ibid at [137], [138].

[18] Ibid at [133], [147].

[19] Ibid at [134], [149] and [151].

[20] Supra note 1 at [153].

[21] Ibid.

[22] Ibid.

[23] Ibid at [152].

[24] Ibid at [153].

[25] Ibid at [152].

[26] Ibid.

[27] Cap 177A, 2010 Rev Ed Sing.

[28] Supra note 1 at [90].

[29] [2018] SGHC 35.

[30] Supra note 1 at [149].

[31] Supra note 28, s 6(10).

[32] Ibid, s 7(2).

[33] Ibid, s 7(1).

[34] Supra note 1 at [152].

[35] Supra note 28, s 5(1)(a).

[36] Ibid, s 5(1)(c).

[37] Ibid, s 3(4).

[38] Kee Yang Low, “Doctor’s duty of disclosure and the Singapore Court of Appeal decision in Hii Chii Kok: Montgomery transformed” [2017] 25:2 Tort L Rev 79 at 89.

[39] Supra note 1 at [152].

[40] Ibid at [153].

[41] Supra note 4 at [91].

[42] Ibid at [13].

[43] Supra note 7, at 186.

[44] Jaclyn Lim, “Anxiety in Singapore: Stats, Types and Who’s at Risk”, HealthXchange.sg (blog), online: <https://www.healthxchange.sg/wellness/mental-health/anxiety-singapore-stats-types-risk> accessed 12 July 2018.

Enforcement of Arbitral Awards Set Aside at the Seat of Arbitration: The Way Forward for Art. V(1)(e) in Singapore

By Daniel Ang Wei En*

I. INTRODUCTION

A. Singapore's Pro-Enforcement Policy

The Singaporean courts interpret the statutory grounds for setting aside awards narrowly1 and with strict scrutiny.2 This approach is consistent and seeks to protect the sanctity of the arbitral award.3 In TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd,4 Chan Seng Onn J summed up the Singapore position that “the power … to set aside awards, must and should only be exercised charily”. Singapore’s approach represents the mainstream curial philosophy across the globe.5

B. Extent of Singapore’s Pro-Enforcement Judicial Attitude

For the Singapore courts, dealing with a seat court’s setting aside of the award raises the question of whether to focus on: (a) the award itself; as opposed to (b) the process and effects of the seat court’s decision to set aside.

French courts have demonstrated a clear deference to the arbitral award, which is perceived as self-sufficient, constrained only by French law.6 On the other hand, the US courts have refused enforcement based on why the award was set aside.7

Given Singapore’s standing as a global-leading arbitration centre, the approach that the Singapore courts take is crucial in contributing to the international jurisprudence on this matter, for which there is no clear litmus. Singapore’s position could possibly nudge the divided international community towards a more uniform enforcement of arbitral awards.

II. THE APPLICABLE LAW

The relevant provision is Article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)8 [New York Convention], which formed Article 36(1)(a)(v) of the UNICTRAL Model Law on International Commercial Arbitration9 [Model Law]. The latter was incorporated in Singapore’s legislation through Section 31(2)(f) of the International Arbitration Act10 [IAA]. Therefore, these provisions should be interpreted harmoniously.

III. APPLICATION OF THE LAW IN SINGAPORE

A. Grounds for Refusal in the International Arbitration Act

The IAA sets out three (3) grounds for refusal within Section 31(2)(f), where the award:

(a) has not yet become binding;

(b) has been suspended; or

(c) has been set aside.

At present, Section 31(2)(f) has not been pleaded as a ground for non-enforcement.11

B. Grounds for Refusal in Case Law

The Singapore Court of Appeal expressed “tentative thoughts” on this issue in PT First Media TBK v Astro Nusantara International BV 12 [PT First Media], which are obiter.13

(1) Rejection of the french authorities

Reviewing the French authorities of Hilmarton Ltd v Omnium de traitement et de valorisation14 [Hilmarton] and The Arab Republic of Egypt v Chromalloy Aeroservices, Inc 15 [Chromalloy], the Court of Appeal rejected the wider notion of “double control” as adopted by the French courts which17:(a) recognised that awards do not derive their validity from a particular local system of law, and (b) applied French legislation18 which did not contain the equivalent of Article V(1)(e) of the New York Convention.

(2) Implication and purpose of enforcement

In principle, the Court of Appeal in PT First Media “seriously doubted”19 enforcing an award set aside at the seat of arbitration on three grounds:(a) since the award derives legal effect from the law of the arbitral seat, its annulment means there is no award to enforce to begin with (the “legal order ground”), (b) Singapore’s domestic law does not confer “more favourable right[s]”20 of enforcement than Section 31(2)(f) of the IAA, (c) a purposive interpretation of the Article V(1)(e) of the New York Convention requires that the provision must have legal effect outside of the seat court (the “purposive interpretation ground”).

In addition to rejecting the French approach, the Court of Appeal appears to have adopted the US approach itself by considering enforcement based on the effects of the setting aside decision. Ground (b) is non-contentious. Grounds (a) and (c) will be explored below.

IV. THE PURPOSIVE INTERPRETATION GROUND FOR REFUSING ENFORCEMENT

A. Purposive Interpretation of Article V(1)(e) of the Convention

Ascertaining the provision’s purpose is crucial, given the Article 31(1) of the Vienna Convention21 requirement of purposive interpretation.

The New York Convention sought in general to make the enforcement of arbitral awards easier22 and internationally uniform23, as mentioned by the English High Court in Dowans Holding S.A. v Tanzania Electric Supply Co. Ltd.24 [Dowans Holdings]. The particular purpose of Article V(1)(e) was to make enforcement less burdensome by removing the requirement of “double exequatur”.25 As explained by the Chairman of the Working Party, “it would be unrealistic to delay the enforcement of an award until all the time limits provided … had expired or all possible means of recourse … have been exhausted and the award had become “final”.”26

Hence, while the prior Geneva Convention27 required an award to be “final”, a deliberate choice was made to use the word “binding” in Article V(1)(e) instead. The drafters’ particular intent to eliminate “double exequatur” behind Art V(1)(e) has received judicial acceptance, not only in the English High Court's decision in Dowans Holdings28, but also by the Swiss Federal Tribunal in Y v X.29 It follows that enforcement cannot be automatically defeated merely because the seat court refuses to enforce the award.

B. Purpose of Article V(1)(e) in Relation to the Discretion of the Enforcement Court

Sundaresh Menon CJ opined in PT First Media30 that “[i]f [setting aside the award] would only ever be of efficacy in relation to enforcement proceedings in the seat court, then it seems to have been devised for little, if any, discernible purpose [emphasis added].” What then, is the implication of the setting aside of an award?

(1) Basis for the enforcement court’s discretion to enforce the award

Menon CJ’s opinion appears to proceed on the assumption that in the enforcement court, the award must be enforced even if the Article V(1)(e) ground is present, rendering the setting aside ineffectual outside the seat court. However, Article V(1)(e) uses the word “may” and thus confers discretion to enforce. The setting aside by the seat court does not automatically defeat the enforcement of the award elsewhere.

This poses a tension with the fact that the seat court’s setting-aside cannot be strictly ignored. The drafters of Article V(1)(e) did not intend for the setting-aside by the seat court to be completely immaterial to the enforcement court. This tension was explored by the Convention delegates:

“[Article V(1)(e)] reflects the inability of the Conference to agree on the solution to the problem of the “double exequatur”. No one wanted the Convention to require judicial proceedings in confirmation of the award in both the rendering and enforcing State. At the same time, an award which had been set aside … should hardly be granted enforcement in another State.” 31

It is therefore unlikely that Article V(1)(e) was intended to be ignored in favour of compulsory enforcement by the enforcement courts. While the delegates proposed limiting the seat courts' control,32 these limits were unspecified.33

(2) Exercising the discretion accorded to enforcement courts

Taking the US approach of scrutinizing the basis for the seat court’s setting aside, how much discretion does the enforcement court have resulting from its “tug-of-war” with the seat court, and how should it be applied?

(a) Awards set aside on local standards of annulment.

The delegates considered eliminating local standards for annulment, while retaining international standards for annulment such as the New York Convention’s grounds. That was intended to concentrate power in the hands of the enforcement courts, imposing a more uniform regime for the annulment of awards.34

Proponents of the “territorialist” approach have argued conversely that since the drafters wanted the seat court to conduct the principal review of the award,35 the enforcement court should defer to the seat court’s judgment instead. However, adopting this “territorialist” approach undermines arbitration as an effective international dispute resolution mechanism. It would require giving international legitimacy to local standards by importing them into the Convention, notwithstanding that local standards for setting aside awards may be inconsistent with the internationally-accepted standards36 – the sole standards the Convention purports to enforce. Consequently, recognising local standards would then result in internationally inconsistent application, as well as inconsistency in the law of the Convention itself. With respect, it is clear that asserting a “territorialist” position would be inconsistent with the Convention’s purpose of effecting greater uniformity of enforcement internationally.37

Additionally, local standards themselves could be perceived as improper or objectionable by the international community. Jan Paulsson illustrates this with a hypothetical example where an award is annulled because it violates a local rule that all members of the tribunal be men or of a particular religious confession.38

Therefore, enforcement courts should not refuse enforcement only because the award has been annulled according to local standards.39 Respecting the sovereignty of the seat should entitle the seat court to adopt local rules regarding the set-aside of awards to comply with local preferences, without necessarily having international effect.40

(b) Awards set aside on international standards of annulment

Conversely, courts have conversely refused to enforce awards because they were annulled according to international standards.

In the United States, the Federal District Court for the District of Columbia enforced the award in Re Chromalloy Aeroservices Inc. v The Arab Republic of Egypt41 [Chromalloy (US)] because the annulment grounds were domestic in that the award was “not properly grounded under Egyptian law”.42 However, the US Court of Appeals for the Second Circuit refused enforcement in Baker Marine (Nig.) Limited v. Chevron (Nig.) Limited, Chevron Corp., Inc and others v. Danos and Curole Marine Contractors, Inc.43 [Baker Marine] because the award was annulled on the international grounds in Article V(1)(c) and (d).44

The court in Baker Marine stated that enforcement according to domestic law “would seriously undermine finality and regularly produce conflicting judgments.”45 It is submitted that this should also apply to seat courts’ refusing enforcement according to their own domestic law.

For reasons of practicality, a compromise should be made between enforcing awards annulled on local grounds and refusing enforcement if the award was annulled on international grounds.

V. THE LEGAL ORDER GROUND FOR REFUSING ENFORCEMENT

Menon CJ opined in PT First Media46 that “the contemplated erga omnes effect of a successful application to set aside an award would generally lead to the conclusion that there is simply no award to enforce”.

A. The Territorial Approach

This is the starting point of the “territorial” approach.47 Van den Berg argues that “[t]he fact that the award has been annulled implies that the award was legally rooted in the arbitration law of the country of origin.”48 Professor Pieter Sanders, a key drafter, appears to have agreed with the result.49

B. Issues with the Territorial Approach

(1) Problems with the territorial approach in general

The first objection is that the territorial approach is in direct opposition to the text of Article V(1)(e) of the Convention, which confers discretionary power to enforce the award.50

In addition, the territorial approach is grounded on an outdated assumption that the law of the seat court provides the award’s legal force.51 In 1958, when the Convention was drafted, the role of the arbitral seat was arguably more substantial that it is today.52 The seat of arbitration is agreed upon by parties mainly out of convenience or compromise, instead of the inherent importance of the arbitral seat itself.

Further, the parties’ agreement did not include submitting to the exclusive jurisdiction of a particular court. By agreeing to extra-curial arbitration, they arguably intended to avoid the reach of the seat court in the first place.53 The territorial approach contradicts the parties’ intentions as it allows seat courts to interfere with the legal effect of the award. It is doubtful if seat courts should arrogate to themselves powers to do this, and the territorial approach may assume too great a significance on the part of the seat court here.

(2) The Article VII(1) exception

The enforcement courts are empowered relative to the seat courts by Article VII(1) of the Convention, which allows for ‘opting' out of the Convention and into the relatively more pro-enforcement domestic law provisions of the enforcement court. Since Article VII(1) empowers the enforcement court to determine, unilaterally, whether the award would be enforced, the assumption that the award truly derives its legal effect solely from the legal order of the seat court is invalid.

In Hilmarton,54 the Paris Cour d’appel held that Article VII(1) prevailed over Article V, and thus applied55 Article 1502 of the New Code of Civil Procedure to enforce the award.

While Article VII(1) might be interpreted in an uncertain manner,56 it is undergirded by the interests of sovereignty which must prevail as a recognised pillar of the New York Convention. Uncertainty is thus a necessary but surmountable procedural cost. For example, the enforcement court is not bound by foreign judgments if they are not contrary to domestic public policy.57 More importantly, sovereignty is an inalienable principle of international law, while consistency is merely a desirable outcome. Uncertainty should not be inflated as an obstacle to the use of Article VII(1).

Inconsistency is less of a problem, given that enforcement courts are less deferential to foreign judgments that set aside the award than foreign judgments that decide the merits of the underlying dispute.58 Just as the US Supreme Court recognised the principle of international res judicata in Hilton v Guyot,59 the enforcement courts should defer to the authority that decides the merits of the case instead to avoid re-litigating the dispute elsewhere.60

(3) Burden of having endless enforcement proceedings all over the world

The application of Article VII(1), as noted in Baker Marine,61 has the result that “a losing party will have every reason to pursue its adversary ‘with enforcement actions from country to country until a court is found, if any, which grants the enforcement.’”

The practical extent of such enforcement actions is, however, limited. The award creditor will only seek enforcement in the countries containing assets of the award debtor.62 In fact, in Yukos Capital S.A.R.L v. OAO Tomskneft VNK,63 the lack of assets was undeniably relevant even in the early stages of enforcement. In (1) X1, (2) X2 v (1) Y1, (2) Y2,64 the Dubai International Financial Courts held that the lack of assets may be a ground to refuse the enforcement.

Further, the judgment creditor is likely to narrow the scope of his enforcement actions to countries where the judgment debtors’ assets are easier to be enforced against. For instance, it is particularly difficult to satisfy the judgement debt with illiquid assets.

C. The Delocalised Approach

The alternative to the territorial approach does lend support to the idea of focusing the inquiry on the award itself. The award was considered by the French Court of Cassation in PT Putrabali Adyamulia (Indonesia) v Rena Holding65 to be “not attached to any state legal order”, but a “decision of international justice whose regularity is examined according to the rules applicable in the country where its recognition is sought". This view ought to be followed, because parties who agree to international arbitration in Convention States assume that it is the Convention that serves as the basis for enforcement, and not another country’s domestic law.66

This is buttressed Professor Gaillard’s view that arbitrators “do not derive their powers from the State in which they have their seat, but rather from the sum of all the legal orders that recognise … the validity of the arbitration agreement and the award. …” Arguably, the “sum of legal orders” is embodied by the signatories' ratification of the Convention itself.

VI. CONCLUSION

A. Implications in General

While the territorial approach has its difficulties, the delocalised approach finds little support internationally. Given that a compromise can be reached between the difficulties arising from scrutinizing the seat court’s decision to set aside, there is insufficient reason in principle for Singapore to contradict the weight of comity and uniformity by departing from the US approach. This is buttressed by the purposive interpretation of Article V(1)(e).

While sovereignty is the main feature of the delocalised approach, sovereignty is indeed respected even in the scrutiny of the seat court’s decision to set aside, without the same severe expense of certainty and uniformity in enforcement.

B. Implications for Singapore

As one of the world’s top international arbitration centres, the Singapore courts’ decisions inexorably drive the development of international arbitration jurisprudence. In this particularly divided area, with the French, US and other courts taking seemingly irreconcilable positions, Singapore’s answer is particularly pertinent in advancing international arbitration as a desirable mechanism of international dispute resolution.

The course charted by the Singapore Court of Appeal appears consistent with the goal of attaining uniformity through comity, but it remains to be seen how the Singapore courts will apply the approach. Should the Singapore courts adopt an “internationalist” stance on this matter, it would be highly persuasive in moulding the global enforcement regime to become more modern and cohesive.


* LL.B. (Hons) candidate, National University of Singapore. I record a debt of gratitude to T.G. Khoo, LL.B. (Coll. Reg. Lond.), LL.M. Candidate (Cantab.), whose invaluable learning has greatly benefited an earlier draft of this paper; and to Samuel Ang Rong En, LL.B. (Hons) candidate, NUS, for his keen insight and invaluable guidance. Any errors and infelicities are, necessarily, my own.

[1] See, “Trends of the 2017 Singapore review” (16 March 2017), Global Arbitration Review Know-How: Commercial Arbitration (blog), online: <http://globalarbitrationreview.com/know-how/results?question_ids=1000341&jurisdiction_ids=1004606&edition_id=1000012> (accessed 13 December 2017).

[2] Paul Tan & Alessa Pang, “The International Arbitration Review – Edition 8 (Singapore)” (August 2017), The Law Reviews (blog), online: <https://thelawreviews.co.uk/edition/the-international-arbitration-review-edition-8/1145747/singapore>.

[3] See Michael Hwang SC & Su Zihua, “Egregious Errors and Public Policy: Are the Singapore Courts too arbitration friendly?” (delivered at the Singapore Academy of Law Conference 2011 – Singapore Law Developments (2006–2010)) at pp. 19–55. For examples of Singapore’s firm pro-arbitration approach, see also David Williams QC, “Defining the Role of the Court in Modern International Commercial Arbitration” (Herbert Smith Freehills SMU Asian Arbitration Lecture, delivered at the Singapore Management University in 2012), online: < http://www.arbitrationconference.com/download/file/218/>.

[4] [2013] 4 SLR 972 at [1].

[5] See Sundaresh Menon SC (as His Honour then was), “International Arbitration - The Coming of a New Age for Asia (and Elsewhere)” (Conference paper delivered at the ICCA Congress 2012, Opening Plenary Session) at [5].

[6] See François-Xavier Train, “Interpretation and Application of the New York Convention in France”, in George Bermann ed., Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts (Springer, 2017) 281 at 304.

[7] 191 F (3d) 194 at 197  (2nd Cir 1999).

[8] 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959).

[9] 24 June 2002, 24 ILM 1302 (1985).

[10] Cap 143A, 2002 Rev Ed Sing.

[11] Jean Ho, “The Interpretation and Application of the New York Convention in Singapore”, in George Bermann ed., Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts (Springer, 2017) 813, at 828.

[12] [2013] 1 SLR 372 at [76].

[13] Ibid at [77].

[14] (1995) XX Yearbook Comm Arb 663–665.

[15] (1997) XXII Yearbook Comm Arb 691–695.

[16] Supra note 11, at [76].

[17] Ibid at [77].

[18] Article 1502 of the French New Code of Civil Procedure, as referred to in the judgment.

[19] Supra note 11.

[20] See supra note 9, Article VII of the New York Convention.

[21] Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[22] Nadia Darwazeh, “Article V(1)(e)”, in Kronke et al., eds, Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (Kluwer Law International, 2010) 301, at 333.

[23] Ibid at 332.

[24] [2011] EWHC 1957 (Comm).

[25] Supra note 22, at 306.

[26] “United Nations Conference on International Commercial Arbitration, Summary Record of the Seventeenth Meeting,” UNESCOR, 1958, UN DOC E/CONF.26SR.17.

[27] Convention on the Execution of Foreign Arbitral Awards, 26 September 1927, 92 UNTS 301 (entered into force 25 July 1929).

[28] Supra note 24.

[29] Swiss Federal Tribunal, Switzerland, 3 January 2006, 5P.292/2005.

[30] Supra note 12, at [77].

[31] Leonard V. Quigley, “Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (1961) 70:7 Yale LJ 1069.

[32] ECOSOC, 1958, 11th Mtg, UN Doc E/Conf.26/SR.11 at 6.

[33] Emmanuel Gaillard & John Savage, eds, Fouchard Gaillard Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999) at 979.

[34] ECOSOC, Comments on Draft Convention on The Recognition and Enforcement of Foreign Arbitral Awards – Note of the Secretary-General, UN Doc E/Conf.26/2, March 1958) at 16-19.

[35] Supra note 22, at 327.

[36] Marike Paulsson, “Chapter 6: Resisting Enforcement of Awards”, in The 1958 New York Convention in Action (United States: Wolters  Kluwer, 2016) 157-216, at 212.

[37] Supra note 22, at 332.

[38] Jan Paulsson, “Enforcing Arbitral Awards Notwithstanding a Local Standard Annulment (LSA)” (1998) 9:1 ICC Intl Ct Arb Bull 14 at 17.

[39] Ibid at 25, 29.

[40] Ibid at 22.

[41] 939 F Supp 907 at 911 (D.D.C. 1996).

[42] Ibid.

[43] Supra note 7.

[44] This distinction is buttressed by the refusal to enforce in TermoRio S.A.E.S.P. (Colombia) and LeaseCo Group, LLC. V Electranta S.P (Columbia) (District of Columbia 2007), in Yearbook Commercial Arbitration XXXIII (2008) (United States no. 621), at 955-969, where the award was annulled under Article V(1)(a) and (2) of the Convention.

[45] Supra note 7, at 197.

[46] Supra note 14, at [77].

[47] Supra note 22, at 326.

[48] Van Albert Jan van den Berg, “Annulment of Awards in International Arbitration” in Richard B. Lillich & Charles N. Brower, eds, International Arbitration in the 21st Century: Towards “Judicialization” and Uniformity?: Twelfth Sokol Colloquium (Irvington, NY: Transnational Publishers, 1994) 161.

[49] Pieter Sanders, “New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (1994) 6:55 Nethl Intl L Rev 199.

[50] Supra note 38, at 20.

[51] Ibid.

[52] Supra note 22, at 313.

[53] Pierre Lastenouse, “Why Setting Aside an Arbitral Award is not Enough to Remove it from the International Scene” (1999) 16:2 J Intl Arb 25 at 43.

[54] Supra note 14.

[55] Article 1502 of the NCCP did not contain grounds to the effect of Article V(1)(e).

[56] Steven L. Smith, “Enforcement of International Arbitral Awards Under the New York Convention” in Rufus von Thulen Rhoades, Daniel M. Kolkey & Richard Chernick, eds, Practitioner’s Handbook on International Arbitration and Mediation (Huntington, NY: JurisNet, 2007) I.8.

[57] Supra note 38, at 212.

[58] Supra note 22, at 332.

[59] Hilton v Guyot, 159 U.S. 113, AT 227 (1895) (Supreme Court, US).

[60] Gary H. Sampliner, “Enforcement of Nullified Foreign Arbitral Awards – Chromalloy Revisited” (1997) 14:3 J Intl Arb 141 at 160.

[61] Supra note 43, at 197.

[62] Andrew Waters & Kimberley Smith, “Enforcement of Foreign Arbitration Awards”, Arbitration: What In-House Lawyers Need to Know, (King & Wood Mallesons, 2016).

[63] [2014] IEHC 115.

[64] [2013] DIFC 2.

[65] Cass civ 2°, 29 June 2007, (2007) Rev. de l’Arb 515 at [2].

[66] Supra note 22, at 333.


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