Dr Jeremy Fernando, Internal Investigations, Misconduct and Public Relations

Singapore Law; Legal; Lawyer

Dr. Jeremy Fernando, a non-residential teaching staff of Tembusu College, National University of Singapore (NUS) was recently reported to have been dismissed for alleged sexual misconduct. NUS has since lodged a police report and issued a press statement after student group Students for a Safer NUS (SafeNUS) called for accountability.

There are important legal, crisis management and public relations (PR) lessons to be learnt from this episode (quite apart from the important issues about organisations upholding cultures of safety from sexual and emotional abuse).

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Choice of Law for Arbitration Agreements

Singapore Law; Legal; Lawyer

The highest courts of Singapore and the United Kingdom have recently issued decisions regarding the choice of law to govern arbitration agreements.

Singapore Courts’ Approach

In BNA v BNB and another [2020] 1 SLR 456; [2019] SGCA 84 (“BNA”), the Singapore Court of Appeal adopted at [44]-[48] the following three-step approach from BCY v BCZ [2017] 3 SLR 357 (HC) (“BCY”):

  • The parties’ express choice of proper law governing the arbitration agreement is first identified (the “Express Choice of Law”).
  • If there is no express choice, the court ascertains the parties’ implied choice of law based on their intentions at time of contracting (the “Implied Choice of Law”).
  • If an express or implied choice is absent, the law governing the arbitration agreement is the system of law with the closest and most real connection to it.

This is based on the framework in Sulamerica Cia Nacional de Seguros S.A. v. Enesa Engenharia S.A. [2012] EWCA Civ 638 (“Sulamerica”).

An express choice of the proper law of the main contract does not, in and of itself, also constitute the proper law of the arbitration agreement: BNA at [61].

There is a presumption that the parties’ choice of law for the entire/main/underlying contract (containing the arbitration clause) also reflects the parties’ implied choice of law governing the arbitration agreement (BNA at [61]).

However, this presumption can be rebutted. The choice of a seat that is different from the place of the law of the main contract is not by itself sufficient to displace the starting point: BNA at [62]; BCY at [65].

The inquiry of whether the presumption is displaced only becomes relevant if the law of the seat is materially different from the (I suppose, putative) law governing the arbitration agreement (lex arbitri): BNA at [63]. E.g. if the seat of arbitration is Singapore but the assumed lex arbitri by that point in the analysis is the law of the People’s Republic of China (PRC).

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Case: Leiman, Ricardo and another v Noble Resources Ltd and another [2020] 2 SLR 386 (CA) – Law on Penalty Clauses

Singapore Law; Legal; Lawyer

Significance: Court of Appeal partly allows appeal against High Court decision and declines to decide on whether the law in Singapore on penalty clauses should be modified in the light of the new UK Supreme Court test for penalty clauses in Cavendish Square Holding BV v Makdessi [2016] AC 1172 (UKSC) (“Cavendish“) which the High Court below applied.

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Business Debt Claims

Singapore Law; Legal; Lawyer

Businesses (creditors) who wish to make a claim against another business (debtors) for a debt arising from contract should follow the State Courts’ pre-action protocol for business-to-business debt claims (the “Protocol“).

A creditor must comply with the framework in the Protocol before commencing any lawsuit in the State Courts.

A debtor must respond to a letter of claim within 14 days of receipt (or the timeline in the letter if earlier).

The Protocol stipulates certain material information and documents which must be provided by the creditor in the letter of claim or the debtor in the response to a letter of claim.

If either the creditor or debtor requests a document or information, the other party must within 14 days of receiving the request provide the document or information sought, or explain why the document or information sought is unavailable.

If you wish to engage me to assist with preparing a letter of demand for your business debt claim, please complete this Google form. (Google account log-in required for file upload.)

Alternatively, if you wish to engage a Singapore lawyer to assist with preparing a response to a letter of claim for business debt, including a counterclaim, you may contact me here.

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Insights into the Honourable Justice Chan Seng Onn

Singapore Law; Legal; Lawyer

Justice Chan Seng Onn was the judge who acquitted the foreign domestic worker Ms Parti Liyani of stealing items allegedly belonging to a Karl Liew.

In this piece, I set out some interesting facts about, and insights from, Chan J extracted from an interview with him done by some students several years ago.

Did you know that he was a top A level student along with George Yeo and Teo Chee Hean; he was a President’s Scholar and studied and worked as an engineer before switching mid-career to law?

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Case: Paulus Tannos v Heince Tombak Simanjuntak and others [2020] SGCA 85 – majority of Court of Appeal refused recognition of foreign bankruptcy order due to breach of natural justice

Singapore Law; Legal; Lawyer

Significance: In a rare split decision, the majority of the Court of Appeal (Sundaresh Menon CJ and Tay Yong Kwang JA; Woo Bih Li J dissenting) refused recognition of foreign bankruptcy order due to breach of natural justice.

The majority found that the evidence did not prove that:

(i) notices of the bankruptcy application in Indonesia were properly served on the appellants;

(ii) the appellants had actual knowledge of the bankruptcy proceedings but chose not to appear in them.

The appellants were thus deprived of the opportunity to challenge validity of service or liability under the guarantees and object to the making of the bankruptcy orders.

The Court left open the issue of the correctness of the legal principles on recognition of foreign bankruptcy orders: at [22].

Supreme Court case summary found here.

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Case: Sandy Island Pte Ltd v Thio Keng Thay [2020] SGCA 86 – defects liability clause does not extinguish rights to claim damages in common law

Singapore Law; Legal; Lawyer

Significance: Singapore Court of Appeal held that unless there are clear words or strong implication from express words in the contract, a defects liability clause in a property construction or development contract does not cause the owner/employer to lose its right to claim damages at common law for defects.

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