Law and COVID-19 by smu.law.alumni

LAW and COVID-19 EDITORS Aurelio Gurrea-MartĂnez, Mark Findlay, Goh Yihan

CONTENTS Editor’s Preface

A) NEW COMMERCIAL CONTEXTS IN CRISIS

1. COVID‐19 as a frustrating event under Singapore contract law, by

Goh Yihan 2. Pragmatism in the pandemic: the protection of commercial tenants in

Singapore, by Edward S W Ti 3. Trading through a pandemic: The Singaporean experience, by

Henry Gao, Dhiraj G Chainani, and Chew Siu Farn 4. Exorcising the ghost in the Wills Act, by Tang Hang Wu

5. COVID‐19 crisis and its impact on trustees and beneficiaries, by Yip Man

6. Private liability for public health, by Jerrold Soh Tsin Howe

7. “In case of emergency, break contract”? The case for a unified regime

for changed circumstances in Singapore contract law, by Nicholas Liu 8. Can international economic agreements combat COVID‐19? Singapore’s

experience, by Pasha L. Hsieh

B) BUSINESS SURVIVAL IN TIMES OF UNCERTAINTY 9. Shareholders’ rights and corporate meetings post COVID‐19, by

84 85

Christopher Chen 10. COVID‐19 and the spotlight on stakeholderism, by Pearlie Koh

11. Stock buybacks: some old norm should remain new, by Zhang Wei

12. The value of insolvency law in the COVID‐19 crisis, by Aurelio Gurrea‐

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Martinez 13. Towards a data‐driven financial system: The impact of COVID‐19, by

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Nydia Remolina

C) SURVEILLANCE, DISCRIMINATION OR PROTECTION? 14. Coronavirus: Pandemics, artificial intelligence and personal data: how to

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manage pandemics using AI and what that means for personal data protection, by Warren Chik

15. Ethics, rule of law and pandemic responses, by Mark Findlay

D) PUBLIC GOVERNANCE UNDER THE MICROSCOPE?

129 141

16. Constitutional literacy in times of crisis, by Maartje De Visser

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17. The ideals of law in a health crisis: Singapore’s legislative responses to

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COVID‐19, by Benjamin Joshua Ong 18. Reflections on the use of facial recognition technology during COVID‐19,

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by Gary Chan 19. Massive COVID‐19 infections in foreign workers dormitories: The dog

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that did not bark in Singapore’s fight against the COVID‐19 pandemic, by Eugene K B Tan

E) ONLINE AND STILL ON MESSAGE? 20. The year of COVID‐19: Personal reflections on how traditional pedagogy

176 177

can be informed by online teaching methods (aka how I changed my mind about online teaching), by Ong Ee Ing

F) LEGITIMACY AND REASONABLE REMEDIES? 21. Legislating and enforcing for containment in a pandemic: an

185 186

introduction to jurisprudential issues raised by COVID‐19 (Temporary Measures) (Control Order) Regulations 2020, by Tan Seow Hon 22. Tort liability in a pandemic environment: Exploratory thoughts, by

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Low Kee Yang G) TRANSITING JUSTICE AND LEGAL SERVICE DELIVERY UNDER

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STRAIN? 23. Taking dispute resolution online in a pandemic‐stricken world: Do we

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necessarily lose more than we gain?, by Dorcas Quek Anderson 24. Hearing essential and urgent court matters during the COVID‐19

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pandemic, by Lau Kwan Ho and Daryl Xu 25. Online advocacy: Views from a moot coach, by Chen Siyuan

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26. Mediation: The new normal?, by Nadja Alexander

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‘Pope Francis – ‘I am living this as a time of great uncertainty. It is a time for inventing, for creativity.’ ‐ Inspirational

Editor’s Preface In a recent observation regarding trading and commercial futures, a government minister predicted that Singapore would never return to a pre-COVID-19 world. Against that realisation this collection of reflections on how the pandemic has changed law, and how law can be understood as a change agent, talks to today and tomorrow. The transit of COVID-19 can be viewed in four stages; outbreak, containment, new waves and living with the virus. Throughout this emerging crisis challenges for domestic and international law and legal cooperation have followed the path of control, and the implementation of wide-ranging health and safety responses with implications for civil society in terms of personal data protection, and rights and liberties of association and movement. While the United Nations Secretary-General has criticised the failure of the global community to work together for containment and eradication, the race to find a vaccine is a story of international co-operation and scientific sharing. An interesting vignette where law and COVID-19 control will require creative intersection will be the way intellectual property (IP) rights protections are balanced against the greatest benefit for all humanity. Recently the UN produced a checklist for a human rights approach to socio-economic responses to COVID-19. The document speaks about working together to ensure social and economic resilience through an adherence to the sustainable development goals even as the virus bites harder.

The concluding theme of ‘building back better’ is a worthy aspiration for the legal

community in playing its part within the development of a new normal that is not only sustainable, but just and fair. The idea for this collection came from the recognition that as legal scholars, educators, practitioners and the leaders of young minds, we had a responsibility to share personal and professional views on the present and future relevance of the law when our place in society experiences radical change. As editors we offered our colleagues the opportunity to focus on what they considered to be important in communicating to a readership needing understanding and reassurance in uncertain times. We left the format and direction of each contribution to the author’s preference, only suggesting that the context should reflect law and change, and change through law. The rich variety of what follows invites consideration of substantive and doctrinal formulations, to thematic and conceptual speculation. During the pandemic new appreciations of civil society, and individual and community responsibility for the well-being of those around have become essential. Social distancing has taught us the importance of families, friends and mundane social bonds we had previously taken for granted.

Despite the need to have in place strict enforcement measures for the very few unable to balance self-interest with social responsibility, the experience of quarantine and lock-down measures in Singapore represent a situation where ‘standing together’ did not require force of law. Even so, the normative principles on which law is built are a constant reminder of how social responsibility and shared well-being are the only answers to a national crisis of this kind. Yet, not all aspects of society’s reception of pandemic control have been positive or harmonious. Some groups have suffered more than others. Some families have felt the strain of school closures, job losses, alienation from community support mechanisms, and exacerbations of disadvantage and isolation which pre-existed the pandemic in all communities. Family law, dispute resolution, employment mediation and social welfare regulation are all areas in which access to legal services are vital in the road to recovery. Financial markets, trading networks and domestic and cross-border commercial relationships will require the support of law to retain their capacity in stimulating economic repositioning. Obviously, these networks which in the past were reliant on private law establishing market certainty will be looking to legal services that are fit-for-purpose when business will not be ‘as usual’. State agencies have been crucial in keeping communities afloat during all phases of the pandemic’s transit. Public law from constitutional protections right down to the administration of government services is essential in maintaining social order when pandemic disorder threatens. Emergency powers are in place to ensure that COVID-19 response policy is sufficient, and sustained. However, as many of the surveillance technologies operating in the control portfolio require community consensus for their efficiency, trust is best generated and preserved when citizens are aware of the positive and negative impacts from surveillance, and have a sense that their personal health data in particular is safely and responsibly managed. During the social distancing confines, the legal profession and the courts have gone online. This transition presents significant challenges for the ecosystems of law firms, and the requirements of due process in the exercise of litigation. Lawyers and legal scholars face a period of seismic change in legal service delivery which will require more than automation to ensure adequate access to justice. This is a trying period in the life of law students and recent graduates. Once, choosing the legal profession would have ensured a predictable if taxing employment pathway. This is no longer the case from the day our students enter law school to the moment a training contract is secured.

Perhaps the strictures of the pandemic have only hastened a change already in motion for those entering the profession, and for those considering if it is or is not their future. Artificial Intelligence (AI) is touted as the remedy for many of the economic, social, political and cultural contentions in an epoch where social demographics are unbalance, economic growth is slowing, labour markets are fragile, and global trade is wracked with protectionism. The arrival of the pandemic has heightened calls for AI and big data to help innovate economies out of the worst. However, as Singapore is realising, perceptions of risk in the roll-out are just one reason why wellevidenced regulation, where law is not absent, must accompany the AI revolution. That said, in many respects the relationship of law with AI has been patchy. In the eyes of many AI professionals and innovators, IP retards as much as stimulates AI innovation. Private law has relinquished control over blockchain contracting. In the overall regulatory push, ethics as a selfregulatory paradigm has outstripped law as the preferred AI regulatory function. Much of this disconnect has changed, however, as concerns about COVID-19 control through AI-assisted surveillance raises concerns for rights and liberties. The efforts to create a shared developmental platform through computational law needs to avoid ceding its regulatory function to the facilitation of technology through altering the language of the law. There is much to be considered in disentangling the relationship between law and AI, particularly in the new normal. Offering a collection such as this when even the pandemic’s duration is anything but clear might be considered pre-emptive. On the contrary, it is not our intention nor that of the contributors to determine law’s future or to define its influence on the pandemic to date. Rather, these papers have a simple and singular purpose – to present personal reflections on the synergies between law and the pandemic so that change is understood and not feared, and that lawyers and the law can represent responsible agencies in the recovery we all hope for. During the gestation of this collection our co-editor and Dean was blessed with the birth of his first child. Normally this would be an occasion to celebrate and reflect on the process of human renewal. More so in a context of such uncertainty and doubt, the shepherding of a new life into a better world is a responsibility for us all. Safety is not only a concern for health professionals and policy makers. Lawyers and legal scholars have much to do in ensuring an orderly, peaceful and just society which should be the birthright of every child. Finally, it is important to remember what change can teach us. When so often we seek out predictability and rational solutions to comfort our futures, fluid times like these require new thinking. The pre-COVID-19 world often forgot humanity in the push for individualist, consumerist, success and gratification. The values crafted out of the pandemic have taken on a more communal

form wherein social responsibility is to the fore. A challenge for law is to align with this transition and take on a more active facility as a community resource. Law can provide greater certainty but cannot eradicate doubt and change. As John Ralston Saul wrote ‘the ability to embrace doubt in the middle of a crisis is a sign of strength…If we can bring ourselves to live consciously then we will be able to embrace both stability and change, which means we may do better at dealing with crises.’ For their valuable assistance in reviewing and formatting this collection of pieces, the editors would like to thank Su Zhiren and Angela Lim. Likewise, they would also like to thank the fantastic group of colleagues who have enthusiastically joined us for this exciting project. We hope the contributions included in this collection can be useful for the conversations and public debates taking place in these times of change and uncertainty.

Singapore, 12 August 2020

(A)

New commercial contexts in crisis

1. COVID-19 as a frustrating event under Singapore contract law Goh Yihan1 Introduction COVID-19 has had an unprecedented impact on commercial arrangements around the world. This would appear to fit the textbook definition of a frustrating event under Singapore contract law. Alternatively, one might expect COVID-19 to be covered by the doctrine of force majeure. This commentary will provide a brief overview of the contractual issues arising from COVID-19.

Contractual allocation of risk If it is argued that COVID-19 has disrupted commercial arrangements such that the parties should be freed of outstanding contractual obligations, the first port-of-call is to ask whether COVID-19 is covered by a force majeure clause.

Broad characteristics of a force majeure clause Under Singapore law, and similar with English law, a force majeure clause is meant to suspend or discharge the contractual obligations of one or more parties to a contract, upon the occurrence of a stipulated event.2 In many instances, there is a coincidence between the events that trigger off a force majeure clause and those that attract the operation of the doctrine of frustration. However, it must be recognized that a force majeure clause is conceptually distinct from the doctrine of frustration.3 As the High Court noted in Precise Development Pte Ltd v Holcim (Singapore) Pte Ltd,4 frustration applies by the external operation of law. This occurs when the law deems that a contractual obligation has become incapable of being performed external circumstances have rendered it radically different from what was agreed to before. In contrast, a force majeure clause derives its force solely from the intention of the contracting parties; in that sense, it might be said to be ‘internal’ to the contract itself. The relief provided for under such clauses is available regardless of whether the triggering event would have been sufficient to frustrate the contract at common law.

Professor of Law and Dean of Singapore Management University School of Law. 2 Precise Development Pte Ltd v Holcim (Singapore) Pte Ltd [2010] 1 SLR 1083 (“Precise v Holcim”), [24]. 3 See Glahe International Expo AG v ACS Computer Pte Ltd (“Glahe v ACS”) [1999] 1 SLR(R) 945, [26]; and RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd [2007] 4 SLR(R) 413 (“RDC v Sato Kogyo”), [56]. Cf. Holcim (Singapore) Pte Ltd v Kwan Yong Construction Pte Ltd [2009] 2 SLR(R) 193, [84]. 4 Precise v Holcim (n 2), [24]. 1

Since such clauses derive their effect from the parties’ intentions, they can be drafted so as to supersede the effects of frustration at common law. Most prominently, the effect of a force majeure clause may be different from that of frustration, which is to discharge the contract altogether. In contrast, a force majeure clause may provide for a different kind of relief such as suspension of the obligations, extension of time for performance, or some other variation to the contract.5 This will all depend on how the parties have crafted the force majeure clause.

Specific example of a force majeure clause and relevant issues The International Chamber of Commerce issued an updated force majeure clause in March 2020 (an update to the 2003 version) in response to the pandemic and recommended its use in international commercial contracts. This is reproduced as follows:

This sample clause shows us that there are at least three important issues to consider when dealing with the application of a force majeure clause in the context of COVID-19.

5 Precise v Holcim (n 1), [25]. See also RDC v Sato Kogyo (n 3), [60].

First, whether COVID-19 is a force majeure event as defined by the clause. This is covered by the first paragraph, which, when read with the second paragraph, defines force majeure rather widely. In particular, paragraph two explicitly refers to a ‘plague’ and ‘epidemic’. Second, whether the party seeking to rely on the force majeure clause needs to have taken reasonable steps to avoid the force majeure event. This is alluded to in the first paragraph, which provides that the force majeure event must be beyond the affected party’s reasonable control. Third, what is the effect on the parties’ contractual obligations if a force majeure event has taken place. This is covered by the third paragraph, which lays down extensively the effect of the clause, such it be triggered. Let us explore each of these issues more closely.

First issue: whether COVID-19 is a force majeure event This first issue is really a question of interpreting the force majeure clause concerned. The Court of Appeal in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd6 held that the precise interpretation of a force majeure clause is paramount as this would define the precise scope and ambit of the clause itself. Precisely because the very basis of such clauses is the parties’ freedom of contract, a court is to give effect to the intention of the parties insofar as that intention is embodied within the clause by way of interpretation.7 Everything depends on the precise language and actual facts of the case at hand.8 The same Court reiterated this general principle in Holcim (Singapore) Pte Ltd v Precise Development Pte Ltd. These general points of application will need to be applied specifically to the force majeure clause concerned. While it is not possible to provide specific guidance, some broad issues include whether a clause that refers to a ‘epidemic’ also covers a ‘pandemic’. Also, a clause that does not refer to a pandemic or epidemic but refers to an effect of COVID-19, for example, the shutdown of global supply chains, can also be covered by a relevant clause. Finally, a catch-all clause such as ‘any other event beyond the control of the parties’ will probably cover COVID-19.

6 RDC v Sato Kogyo (n 4). 7 ibid, [54]. 8 ibid, [58].

Second issue: whether the affected party needs to have taken reasonable steps to avoid COVID-19 Further, a party who relies on a force majeure clause must usually show that it has taken all reasonable steps to avoid its operation, or mitigate its results.9 As the Court of Appeal held in RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd,10 this principle is consistent with the very nature and function of a force majeure clause since such a clause presupposes that events falling within its scope and ambit are beyond the control of the contracting parties and that language to this effect will invariably be utilized in the clause itself.11 This can be seen in the sample clause above. As such, in RDC Concrete itself, the shortage of aggregates in Singapore owing to the Indonesian government's ban on sand exports was not sufficient to trigger the force majeure clause concerned because the defendant could still purchase aggregates at a higher price from the market. Although the contract had become more onerous for the defendant to perform, the circumstances clearly did not constitute force majeure within the relevant clauses in the contract.12 In the context of COVID19, it must therefore be considered whether the effect of the pandemic, be it more expensive supplies or transport, are so onerous that they cannot be reasonably avoided by the affected party. A related issue is whether the affected party can even foresee the pandemic in the first place. In this regard, Bill Gates has prominently warned of a pandemic for several years before 2020. President Barack Obama had similarly warned of the dangers of pandemics in 2014. It might even be argued that, with the SARS, MERS and other epidemics of the past, it must be reasonably foreseeable that the world will be confronted with a pandemic like the present one caused by COVID-19. However, such a view may be too far-reaching. Indeed, while it is possible to foresee that the world will be affected by a pandemic at some point, it is quite a different matter to say that the speed at which COVID-19 affected the world, together with the devastating effect on economies, is specifically foreseeable.

Third issue: event of a force majeure clause in the context of COVID-19 The relief available under a force majeure clause will be determined by the specific content of that clause itself. In a situation where the doctrine of frustration is sought to be excluded, the clause concerned would expressly stipulate that the contract is not to be discharged despite the fact that the situation would otherwise be one that would have frustrated the contract.13 An example of such 9 ibid, [64], applying the English Court of Appeal decision of Channel Island Ferries Ltd v. Sealink UK Ltd, [1988] 1 Lloyd's Rep. 323, 327. 10 RDC v Sato Kogyo (n 4). 11 RDC v Sato Kogyo (n 4), [64]. 12 ibid [70]. 13 ibid [60].

a clause can be found in the Court of Appeal case of RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd. 14 The force majeure clauses in that case provide that, if those clauses are triggered, the contract ‘shall be suspended or limited until such circumstance ceases'.15 This is different from a contract which is frustrated at common law, which would be automatically discharged forthwith, and the effects to be determined pursuant to the Frustrated Contracts Act.

Frustration Frustration is the common law doctrine that is most talked about in relation to COVID-19, along with force majeure clauses. The generally accepted test at present is what is often referred to as the ‘radical change in obligation’ test. In the oft-cited words of Lord Radcliffe in the House of Lords decision of Davis Contractors Ltd v Fareham Urban District Council: [F]rustration occurs whenever the law recognizes that, without the default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.16 This juridical basis has been accepted in Singapore. 17

ibid. 15 ibid [61]. 16 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696, 729 (emphasis added). See also the general thrust in the House of Lords case of National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, although some Lords of Appeal were of the opinion that any juridical basis would do! Cf. also the Singapore High Court decision of Sherrifa Taibah bte Abdul Rahman v Lim Kim Som [1992] 1 SLR(R) 375, reversed (but not on this point), [1994] 1 SLR(R) 233. 17 See the Singapore Court of Appeal decisions of Chiang Hong Pte Ltd v Lim Poh Neo [1983-1984] SLR(R) 346, [21]; Glahe v ACS (n 4), [27]; and RDC v Sato Kogyo (n 3), [59], as well as the Singapore High Court decisions of Goh Chin Kiat v Dorothy Ong [1992] SGHC 243; Seow Lee Kian @ Seow Lee Kian Terence v Wong Kok Hong @ Wong Henry [1998] SGHC 194, [43]; Shenyin Wangou-APS Management Pte Ltd v Commerzbank (South-East Asia) Ltd [2001] 3 SLR(R) 108, [14]; and Oakwell Engineering Ltd v Energy Power Systems Ltd [2003] SGHC 241, [96]. See further the Singapore Court of Appeal decision of Glahe v ACS (n 3), [26], which adopted Lord Simon's similar statement in National Carriers Ltd v. Panalpina (Northern) Ltd,[1981] AC 675, 700. Frustration of a contract takes place when there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance. [emphasis added] 14

Timing: when did COVID-19 start? Because frustration applies to supervening events after the conclusion of the contract, it is important to determine just when the supervening event happened. If the alleged supervening event actually occurred before the contract was signed, this may preclude the operation of frustration. In the context of COVID-19, this requires us to consider whether the point at which the pandemic started can be taken as when the World Health Organisation (WHO) declared it to be such on 11 March 2020, or whether it ought to be earlier, when its effects were beginning to be felt in February 2020? Indeed, there are some who argued that the WHO had taken too long to declare a pandemic. This will have a practical bearing in case a party argues that the pandemic had commenced before the relevant contract was formed. For example, if a contract was concluded in early March 2020, before 11 March 2020, might it be possible to argue that the effects of the pandemic had already been felt by then?

Is COVID-19 a frustrating event? There are different situations that constitute frustration, as can be seen below:

Rather than ask whether COVID-19 is a frustrating event in and of itself, it might be more worthwhile to ask whether the effects of COVID-19 are frustrating. For example, COVID-19 led to countries imposing restrictions on the operation of certain businesses. It became, for example, illegal to operate a dine-in eatery for some months in Singapore. In this situation, a contract might be frustrated by virtue of illegality. Frustration operates to discharge a contract validly formed if performance of it becomes illegal after formation. 18 Performance of the contract can become illegal because of the enactment of a new law. A law (or public policy consideration) that had existed prior to the formation of a contract can also make performance of that contract illegal after it had been validly formed if the circumstances have changed. The changed circumstances would, in accordance with the pre-existing law (or public policy consideration), render such performance illegal. COVID-19 has also disrupted supply chains. It might have made certain supplies more expensive to obtain, with a concomitant increase in production costs. The Court of Appeal in Alliance Concrete Singapore Pte Ltd v Sato Kogyo (S) Pte Ltd19 spelt out three situations concerning the unavailability of a source: Scenario (a): Where the source is expressly referred to in the contract 49 Where the source is referred to in the contract, and that source fails through no fault of either party, the contract is generally discharged by the doctrine of frustration. Scenario (b): Where only one party intended an unspecified source 51 Where only one of the contracting parties intended for a particular source such that the source is not provided for in the contract, then the contract will not be discharged when that source fails. This is illustrated by the oft-cited English Court of Appeal decision of Blackburn Bobbin Co Ltd v TW Allen & Sons Ltd [1918] 2 KB 467. Scenario (c): Where both parties contemplated an unspecified source 53 As for the scenario where the source is not referred to in the contract but both parties contemplated that unspecified source, there is no conclusive English authority. The English High Court decision of Re Badische Co Ltd [1921] 2 Ch 331 appears to support the proposition that where both parties contemplated an unspecified source and that source fails, the contract would be discharged. See Ritchie v Atkinson, (1808) 10 East 295. We are presently dealing with supervening illegality; on illegality, see generally paras 761–991 supra. See also Murugesan v Krishnasamy, (1957) 3 MC 93. 19 RDC v Sato Kogyo (n 4). 18

Thus, where parties to the contract anticipated the use of a certain source material that has been disrupted by COVID-19, the contract can be frustrated.

Limitations on the operation of frustration If the parties ought to have foreseen the alleged frustrating event, they must be taken to have assumed the risk of this event happening, and that there should therefore be little room to invoke frustration. For example, in Housing & Development Board v Microform Precision Industries Pte Ltd,20 there was a contract for the lease of a plot of land from the plaintiff to the defendant. The defendant had intended to build a factory on the land. However, the land was ‘land-locked’ and had no ostensible access.21 When the plaintiff sued for the rent, the defendant argued that the contract had become frustrated as it was unable to secure access to the plot to build the factory. The High Court rejected this argument. It held that the defendant had been aware of the risk that the relevant authorities would not grant access to the plot of land before the contract had been concluded. As such, the defendant had taken the risk of a foreseeable event eventuating, and now cannot say that the contract was frustrated. In the context of COVID-19, the issue of whether the pandemic is appropriately foreseeable will also be relevant here. In addition, it is a clear rule of law that self-induced frustration is no frustration. This rule is commonsensical enough, having regard to the fact that the doctrine operates on the assumption that neither contracting party is at fault. Further, it would be odd, to say the least, to allow a party to benefit from his or her own wrongful act. In the context of COVID-19, the limited scenario where this might occur is if a party intentionally becomes affected by COVID-19, thereby leading to an incapacity argument. Otherwise, and more plausibly, a party might choose to devote its limited supplies caused by COVID-19 to one party than another.

20 Housing & Development Board v Microform Precision Industries Pte Ltd [2003] SGHC 214. 21 ibid [1].

What should be done in the future? Looking forward, it is clear that the doctrine of frustration is limited. Indeed, in a joint commentary, I had argued that even if a contract is frustrated, the courts’ ability to adjust the parties’ rights and liabilities is fairly limited. The Frustrated Contracts Act, based on identical English legislation, allows the courts to allocate the losses caused by the frustration between the parties, but it does not allow them to adjust the parties’ rights against each other. This is underpinned by the deference accorded by the common law to the parties’ ‘freedom to contract’, that is, the freedom to enter into any contractual arrangement which will be enforced if it is not illegal or immoral. Therefore, the relative rigidity of the common law, the uncertainty in how it might be applied, coupled with the limited ways to deal with a contract affected by COVID-19, may create legal choke points as parties line up for a binding determination. What might be done to mitigate a legal epidemic flowing from these problems? VK Rajah and I had proposed a three-pronged approach that goes beyond the provision of breathing space. First, rather than wait for the common law’s response to the pandemic, Parliament should legislate beyond the COVID-19 (Temporary Measures) Act to empower the courts to deal with commercial disputes directly affected by the pandemic more flexibly. From a systemic perspective, such legislation would give the business community immediate certainty and more predictability. This is important as businesses assess their present positions and rebuild for a post-COVID-19 economy. This will also be more efficient than the common law system. Unlike the courts which can only deal with discrete cases before them, Parliament can enact far-reaching legislation that can anticipate the various issues that can arise. Second, such legislation could draw inspiration from the civil law systems. These systems allow the courts greater latitude in adjusting the parties’ rights against each other. For example, the German Civil Code, pursuant to the ‘rebus sic stantibus’ principle, allows the contract to be modified on the satisfaction of three conditions. First, if the parties would not have entered into the contract at all or on different terms, had they had known of the change in circumstances. Second, the change in circumstances must be so serious that the affected party can no longer be reasonably expected to remain bound to the contract. Third, the affected party must not have assumed the risk of the change in circumstances. More broadly, however, this principle only applies in very limited circumstances, since a subsequent change to contractual terms must be limited to extreme cases. If, however, the principle applies, the affected party may request for the

contract to be modified. While the affected party can suggest a modification to the courts or tribunal, there remain a wide variety of modifications the decision-maker can impose on the parties. Similarly, French civil law allows a party affected by changed circumstances to plead hardship or ‘imprévision’. The notion of imprévision was introduced into the French Civil Code in the 2016 French contract law reform. It therefore only applies to contracts concluded after 1 October 2016. This allows a party to a commercial contract to request for the renegotiation or termination of a contract if three conditions are satisfied. First, similar to the common law doctrine of frustration, there must have been an unforeseeable change of circumstances beyond the parties’ control. Second, the change of circumstances must have made excessively burdensome for a party to perform its obligations under the contract. Third, the party relying on imprévision must not have accepted the risks of the change in circumstances. In the event of imprévision, the affected party can ask the other party to renegotiate the contract. If renegotiation fails, the parties may cancel the contract or ask a court or tribunal to modify the contract. While the common law has traditionally shied away from interfering in the parties’ contractual arrangements like the civil law has, this approach needs to be reconsidered from a policy perspective in light of the unprecedented COVID-19 pandemic. Businesses will need all the help they can to survive the current crisis. Thus, the law should allow for proactive steps to be taken not only to adjust contracts, but to allow for just and equitable solutions to be found where contractual relationships have broken down. The courts should be empowered to do so, when parties can show that contractual obligations have been materially affected by COVID-19. While these measures will affect the parties’ contractual rights retroactively, this extraordinary measure can be justified by the unprecedented impact of COVID-19. However, if parties have already addressed how such an unprecedented event like COVID-19 is to be dealt with, then their legitimate expectations must be honoured. Thirdly, an authoritative judicial restatement of the law of frustration may be attempted in lieu of legislation. To its credit, the Singapore Government, like other countries, has acted quickly to create muchneeded relief for individuals and businesses affected by COVID-19 by passing the COVID-19 (Temporary Measures) Act. In the interim, this will provide temporary and targeted protection for businesses and individuals who cannot perform particular types of contractual obligations due to COVID-19. The Act gives parties precious ‘breathing space’ to negotiate and resolve their differences, thereby preserving liquidity. But, after the legal ‘circuit breaker’ concludes, we will need to be prepared for a legal epidemic that will pose unique challenges for our legal system. Similar

to the current health pandemic, a legal epidemic will pose unprecedented challenges that need to be addressed immediately, effectively and creatively.

2. Pragmatism in the pandemic: the protection of commercial tenants in Singapore Edward S W Ti22 The COVID-19 epidemic has not spared any country, not least a densely populated country like Singapore. The government has been working tirelessly developing new policies and laws to mitigate the human and economic devastation brought on by the virus. The COVID-19 (Temporary Measures) Act 2020 (COTMA) is intended to tackle some of the negative effects brought about by COVID-19. With an initial application period of 6 months which can be amended at the Minister’s discretion, the COTMA covers a wide range of issues. Summarily, the COTMA provides for public health controls necessary to manage the health crisis, increases bankruptcy and insolvency thresholds to the advantage of debtors, allows company meetings and court hearings to be held virtually, relieves individuals from their obligations under certain types of contracts, provides rental relief to non-residential small-medium enterprises (SMEs), and requires property tax rebates granted to landlords to be passed on to non-residential tenants. Specific to protecting the interests of commercial tenants are two main thrusts – (a) temporary suspension of the landlord’s legal rights against tenants who do not pay rent and (b) direct rental relief provided by landlords.

Suspension of tenancy obligations For tenancy agreements entered into before 25 March 2020, the COTMA suspends some key tenancy obligations for tenants whose businesses have been ‘materially impacted’ by COVID-19. While the statute does not define the material phrase, Parliamentary records in the Hansard attempts to guide operational administration by stating that this inability to perform ‘need not be the dominant cause but it cannot be a remote, insignificant cause either.’ This implies there could be more than one reason for the inability to fulfil the obligation but that COVID-19 is a material reason. The legislation allows SME tenants who are materially affected by the COVID-19 pandemic to defer their rental payments during the 6-month period that COTMA is applied, with a maximum interest rate of 3% on delayed payments. Tenants are still required to pay the total rental sums, including the interest accrued, at the end of the application period. Failing which, their landlords will then be allowed to enforce the contracts against their tenants.

Assistant Professor of Law, Singapore Management University.

Procedurally, the tenant seeking relief needs to first serve a notification for relief to their landlords. The notification must contain the details of the obligation, the date the obligation was expected to be performed, and a brief explanation how COVID-19 had materially caused the inability to perform. Landlords may contest this via a panel of assessors if (s)he deems that the contract in question does not fall within the definition of a ‘scheduled contract’, or that the party seeking relief has not been materially impacted by COVID-19. While the former may be easy to determine, whether the inability to perform was to ‘a material extent caused by a COVID-19 event’ could be more nebulous. Materiality is a question of degree and fact. Distinguishing a party who was merely incidentally but not actually materially suffering losses during the COVID-19 period, from one whose difficulties were materially caused by the pandemic is a grey area. To add to the challenge, the decision is left to a single assessor, and instead of in-person hearings, the regulations allow for the dispensation of a hearing, allowing the assessor to make a determination solely by reference to the forms and documents submitted. The primacy of expedience in these unusual circumstances explains why the COTMA does not provide for appeals against an assessor’s determination. If a valid notification has been served, the ordinary contractual enforcement rights are suspended until the notification of relief is withdrawn or until the end of the prescribed period. In addition, landlords are disallowed from terminating a non-residential lease or license for the unpaid rent, and from the right of re-entry or forfeiture of a lease or license of non-residential property. In addition to allowing commercial tenants who have been materially affected by COVID-19 to defer their rental payments at a low interest rate, tenants unable to ‘vacate premises, restore the property to its original state and yield vacant possession to the landlord’ after the termination or expiry of the lease may also apply for relief against having to pay to the landlord ‘double rent or double value’, as specified under section 28(4) of the Civil Law Act (Cap 43). The COTMA does not define what ‘inability to vacate the property’ means, though it does state that this inability must be caused by COVID-19. Interestingly, there is no requirement that the tenant’s business must have suffered because of the pandemic. It suffices that the pandemic has materially impeded the tenant’s ability to move out of the premises. A broad reading of this could therefore include situations where the tenant is forced to hold over because the tenant cannot hire the needed manpower to remove his or her stocks or machinery in the leased premises, as well as other situations where a tenant is unable to find a new location to move to. In response to the tenant’s application for relief, landlords with reasonable justification may also apply for relief. For instance, a landlord may have contracted with a new tenant to lease the premises and is unable to accommodate the existing tenant. The holding-over by the tenant-at-sufferance, as it were, may result in the landlord breaching his or her commitment to the new tenant. Assessors presiding over such cases thus have a critical role to minimise a domino effect in the property chain.

Transfer of property tax rebates Singapore’s property tax regime features a recurring wealth tax imposed on property owners ordinarily chargeable at a rate of 10% of the property’s annual value, or approximately 0.2% - 0.3% of the asset value. On top of the suspension of key tenancy obligations, all non-residential property owners in Singapore became entitled, pursuant to the Property Tax (Non-Residential Properties) (Remission) Order 2020, to either a 30% reduction (for office and industrial property) or a complete waiver (for all other properties) for property tax that would otherwise be payable in 2020. Owners who are not leasing their properties are allowed to retain these benefits. When the Remission Order first came into effect on 10 March 2020, there was no legal requirement for landlords to pass these savings on to their tenants, with Parliament initially intending to leave it to the good graces of landlords to do right by their tenants who are facing cash-flow problems. Without legal compulsion however, few landlords voluntarily passed these rebates to their tenants, resulting in the enactment of Part 6 of the COTMA, which came into effect on 7 April 2020. Though deemed necessary, one parliamentarian described the fact that laws had to be enacted to compel landlords to pass on property tax rebates to their tenants as ‘regrettable’. Apart from mandating that nonresidential landlords must pass their tax savings from the property tax remission to their tenants, COTMA and its attendant regulations also provide the manner and timing of these payment rebates, and also require that the landlord is to provide tenants information detailing the breakdown of the rebates.

Rental relief The latest amendments to the COTMA additionally provide rental waivers for qualifying SME tenants. There are two components: (a) Government-funded rental waiver; and (b) Landlordfunded rental waiver. SME tenants necessarily qualify for the former, but need to prove that they have suffered a year-on-year decrease of revenue of at least 35% in order to qualify for the latter. Under government-funded rental waivers, SMEs with retail property leases (i.e. shops) enjoy 2 months rent-free while SMEs with office property or industrial property leases enjoy a 1-month rent-free. SMEs that qualify for landlord funded rental waivers enjoy a further 2 months rent-free period for retail leases and 1-month rent-free period for office or industrial property leases. It is first interesting to note that the rental relief is not necessarily tied to any requirement for the SME’s business to be materially impacted by the pandemic. Whether presumptuous or for purposes of operational expediency, a 35% loss in revenue is sufficient to qualify an SME for rental relief. As a counterpoint, there is fortunately some relief for smaller landlords who may suffer

financial hardship should they be required to provide the full rental waiver. If they can show that their rental income constitutes a substantial portion of their income, these landlords will only be required to provide half of the landlord-funded rental waivers. The rental relief framework while well-intentioned, is not without its potential pitfalls. While SMEs renting their premises receive rent subsidies, owner-occupying SMEs that both own and operate at their place of business receive no further help apart from the aforementioned property tax rebates. A slight tweak in the corporate holding structure may also result in different outcomes as more sophisticated SMEs that rent their premises from a sister company ostensibly do enjoy the benefits of government-paid rental relief. It is also possible that through a tenant, the controllers of the bankruptcy-remote corporate shell could in fact, be more affluent than their landlord. Further, the lack of any requirement for an SME’s business to be negatively impacted to qualify for government-funded rental relief means that businesses enjoying similar or even higher profits during the current period could receive a windfall. SMEs seeing a substantial decline in revenue due to reasons other than COVID-19 also receive a windfall, as they would not ordinarily be subsidised by their landlords. This could have the effect of synthetically supporting business that were going to fail for reasons outside COVID-19, thus delaying the inevitable. Finally, start-up businesses unlucky enough to have commenced operations amidst the pandemic have no operating history, and would thus be ineligible to receive landlord-funded rental waiver, being unable to present a year-on-year decrease in revenue.

A perfect system or just good enough? The COTMA provisions targeted at protecting commercial tenants would have been deliberated at length as it is an incursion on a cornerstone of private law - the sanctity of contract. It also crosses the line on property rights. The Law Minister justified these unprecedented incursions by highlighting the overriding need ‘to safeguard the fundamental integrity of the economic structure of the common good’. The Singapore government’s protections for commercial tenants were not so much to prevent individual hardship on the part of tenants as it was to prevent systemic economic fallout. The earlier discussion on the potential limitations of the rental relief framework highlights inequities across SMEs of various profiles. However, if the purpose of COTMA is first and foremost for the ‘economic structure of the common good’, perhaps the rental relief framework was not designed to be perfect, but just good enough. Quite abruptly, the COTMA has tied the landlords’ hands, preventing them from enforcing their commonly held rights through means traditionally made available to them. It has been argued that these pro-tenant policies protect capital values which in turn serves the landlords’ long-term interests. In justifying the policy, the Law Minister pointed out the correlation between growth of property prices and economic growth: ‘If our SMEs do well, the economy is given a boost, property owners will continue to enjoy the stable value of their assets. If viable SMEs go under because of temporary cash flow difficulties, the economy as a whole suffers, the value of property will also suffer.’ However, the compulsory

and radical transfer of property and wealth from landlord to occupant via a rental relief is also potentially problematic. On one view, landlords have no choice but to share the downside business risk of their tenants, but are excluded from the upside gains. As there is no correlation between the deservingness of a landlord and the success or otherwise of its tenant, arbitrary outcomes may result. That being said, if the overarching objective is to design a system that is just good enough, despite not being entirely equitable, to prevent the Singapore economy from going into a downward spiral, there could be stricter limits on the incursions to landlords’ rights. For example, there could be a requirement that the proviso of holding-over relief should be limited to tenants whose businesses have suffered as a result of the pandemic, not simply those who find it difficult to move out of the premises because of COVID-19.

Beyond pragmatism? The intricate web of connections across the various housing markets with the social and economic wellbeing of cities is undeniable. It is common for the government to step in where required, to influence the property market, especially in such exceptional circumstances as the present global pandemic. This note outlines the protections afforded to commercial tenants in Singapore, as well as the potential pitfalls, inequities and arbitrariness that may be justified in favour of designing an imperfect system that sufficiently meets its objective. The overriding reason – to avoid economic ruin – is necessary and highly pragmatic. Given the pressing nature of the intervention, there has been understandably little concern with how this is consistent with the sanctity of property rights. As the Singapore government continues to grapple with the effects of COVID-19, it would be prudent to identify further arguments justifying existing government interventions in favour of commercial tenants based on legal and economic principles. These would provide further legitimacy and acceptance among the populace, especially if the need for similarly, if not more, drastic incursions to property rights arise.

3. Trading through a pandemic: The Singaporean experience Henry Gao, Dhiraj G Chainani, and Chew Siu Farn23 Being a small country with one of the highest trade-to-GDP ratios in the world, Singapore faced seemingly insurmountable challenges at the onset of the COVID-19 pandemic. As countries around the world scrambled to fight the pandemic, they imposed restrictions on exports and imports, suspended international transportation of both goods and people, and invoked emergency power and exceptions to justify their actions. All these presented unprecedented challenges to Singapore, a country which relies on international trade not only for its prosperity but also for survival. This chapter discusses how Singapore tries to meet these challenges through various initiatives to diversity its sources of supply, ensure trade of essential goods, and minimize the interruptions to business travel. The Singapore experience provides an invaluable case study on how trade agreements can be used not just to regulate trade, but also to facilitate trade, a lesson that will be invaluable for all countries as the world embark on the road to recovery.

Introduction In January 2020, amidst the busy preparations for the Chinese New Year, a deadly virus silently spread through the city of Wuhan, one of the major metropolis in central China. As one of the busiest trade and travel hubs in the world, Singapore quickly became the worst affected of all countries. For example, on 5 February 2020, two weeks after the unprecedented lockdown in Wuhan by the Central Government of China, Singapore claimed the highest infection rate (24 cases out of a population of 5 million) in the world, even higher than China (20,502 cases out of a population of 15 billion).24 Compared with the health emergency, Singapore also had to cope with another emergency as countries around the world, in a fanatical scramble to fight the pandemic, resorted to restrictions on exports and imports, suspension of international transportation of both goods and people, and the invocation of various emergency powers and exceptions as justifications. As a country with the world’s highest trade to GDP ratio at 400%,25 Singapore sees

Henry Gao is Associate Professor of Law at Singapore Management University. Email: gaohenry@gmail.com. Dhiraj G Chainani is an LLB graduate from the SMU School of Law. Email: dhirajchainani@gmail.com. Chew Siu Farn is a JD graduate from the SMU School of Law. Email: sfchew.2017@jd.smu.edu.sg. 24 Miren Gonzalez, ‘Morning brief: Wuhan coronavirus update for Feb 5, 2020’ (The Independent, 5 February 2020) <http://theindependent.sg/morning-brief-wuhan-coronavirus-update-for-feb-5-2020/>. 25 WTO, Trade Policy Review Body, ‘Trade Policy Review - Report by the Secretariat’ (Singapore, 5 June 2012, WT/TPR/S/267) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/TPR/S26701.pdf&Open=True> at p. vii. 23

trade as its “lifeline” 26 and, with the domino effects of more and more trade restrictions being introduced around the world, the health emergency quickly escalates into a trade emergency, which threatens not only the prosperity of “the little red dot”, but even its very survival. Fast forward six months, Singapore has emerged relatively unscathed in the pandemic. It not only has one of the lowest number of COVID-19 cases and mortality rates, but also does not suffer from the shortage of food and other essential products, as have been seen in some countries.27 This is a remarkable feat, especially considering that Singapore, being a land-scarce country, does not produce a single grain of rice, or any other agricultural commodities, for that matter. How was Singapore able to navigate through the health and trade emergencies? While there could be many different answers, we offer a novel explanation in this paper, by noting the key role played by trade agreements in Singapore’s journey through the pandemic. We argue that, it was Singapore’s innovative use of various trade agreements, both bilateral and regional, and even multilateral, that helped it to source alternative supplies, minimize the disruptions to trade in essential goods, manage food stockpiles, and resume business travel for the supply of services. This unique case study challenges the conventional thinking that trade agreements only serves to regulate trade, and suggests instead that trade agreements, if used in a creative manner, could also help to facilitate trade. We hope our paper provides a useful manual for all countries as they fight their way through the pandemic.

II. From health emergency to trade emergency 1.

Restrictions taken by countries Due to the onset of COVID-19, the WTO has projected that global trade will decline between 13-32% this year.28 By late April 2020, 92 trade and trade-related measures were notified to the WTO. These include restrictions on exports and the movement of people. Each of these will be discussed in turn.

26 Speech by Minister Chan Chun Sing at the Singapore Maritime Lecture 2019 (Ministry of Trade and Industry Singapore, 8 April 2019) <https://www.mti.gov.sg/Newsroom/Speeches/2019/04/Speech-by-Minister-ChanChun-Sing-at-the-Singapore-Maritime-Lecture-2019>. 27 Amy Gunia, ‘How Coronavirus Is Exposing the World’s Fragile Food Supply Chain – and Could Leave Millions Hungry’ (Time, 8 May 2020) <https://time.com/5820381/coronavirus-food-shortages-hunger/>. 28 BDI, ‘Export Controls and Export Bans over the Course of the COVID-19 Pandemic’ (29 April 2020), https://www.wto.org/english/tratop_e/covid19_e/bdi_covid19_e.pdf .

A. Measures relating to exports Countries have enacted bans on exports of essential items like medical equipment and food. Besides explicit bans, countries have also put in place other measures like licence requirements.29 i.

European Union (EU) In regulation 2020/402, having regard to the fact that the risk of infections for people in the EU was “moderate to high”, the EU subjected the export of Personal Protective Equipment (PPE) to authorisation until April to meet the increased demand for PPE.30 Licenses must be obtained for exports and would be granted in exceptional circumstances. In regulation 2020/568, the EU affirmed that it is not their intention to “restrict exports any more than absolutely necessary”, and that “Member States should grant export authorisations… where the shipment in question poses no threat to the actual need for PPE within the Union and serves to satisfy a legitimate need for official or professional medical use in a third country”.31

ii.

United States of America (USA) The USA has also imposed a ban on exports of PPE. On 7 April 2020, the Federal Emergency Management Agency banned the export of PPE such as surgical masks and medical gloves without explicit approval from the FEMA. The rule provides for exemptions such as exports of subject goods destined for either Canada or Mexico.32

iii.

China China has required that exports of COVID-19 testing kits, medical protective suits, ventilators and infrared thermometers be accompanied by proof of registration with the National Medical Products Association. But these export restrictions were not imposed for protectionist reasons. Instead, they appeared to be triggered mainly by concerns over the quality of these products.33

Congressional Research Service, ‘Export Restrictions in Response to the COVID-19 Pandemic’ (15 May 2020) <https://crsreports.congress.gov/product/pdf/IF/IF11551>. 30 Commission Implementing Regulation (EU) 2020/402 of 14 March 2020 making the exportation of certain products subject to the production of an export authorisation [2020] OJ LI 77/1. 31 Commission Implementing Regulation (EU) 2020/568 of 23 April 2020 making the exportation of certain products subject to the production of an export authorisation [2020] OJ L 129/7. 32 Congressional Research Service, ‘Export Restrictions in Response to the COVID-19 Pandemic’ (15 May 2020) <https://crsreports.congress.gov/product/pdf/IF/IF11551>. 33 BDI (n 28). 29

iv. ASEAN In the ASEAN trading bloc, members have also enacted export bans and licencing requirements. From 20 March 2020, Malaysia has banned the export of face masks.34 A letter of approval from the Controller of Supplies is needed for the export of face masks. Although it did not ban the export of food, its Restriction on Movement of People Order restricted the movement of its people. In turn, this had an impact on its food production and exports, with its exports estimated to contract by 8.3% this year.35 Bans have also been enacted for food exports. Vietnam temporarily suspended rice exports contracts until March 28, and limited shipments for April to 500,000 tonnes to ensure domestic food security.36 In the same vein, Thailand banned egg exports for one week to end local egg shortages.37 It should be noted that some countries have started to roll back on its export bans. For instance, Vietnam has lifted its restrictions on mask exports38 and has resumed rice exports from 1 May 2020.39 More importantly, as a testament to ASEAN solidarity, member states have made donations of essential goods like test kits and PPE to other members.40

B. Measures relating to movement of people The COVID-19 pandemic has resulted in disruptions in the service sector. Countries have largely banned the movement of people across their borders as the number of COVID-19 cases increased. In particular, GATS mode 2 (consumption abroad) and mode 4 (movement of natural persons) have, according to the WTO, been “largely paralysed”.41 In Singapore, the Ministry of Trade and Industry has noted that the sectors that are most

Customs (Prohibition of Exports) (Amendment) (No. 2) Order 2020 (Malaysia). 35 ‘Malaysia’s exports to contract in 2020 at 8.3% amid MCO, COVID-19 crisis’ (Moneycompass, 5 June 2020) <https://moneycompass.com.my/2020/06/05/malaysias-exports-to-contract-in-2020-at-8-3pc-amid-mcoCOVID-19-crisis/>. 36 Khanh Vu, ‘Vietnam PM says to fully resume rice exports from May’ (Reuters, 28 April 2020) <https://www.reuters.com/article/us-vietnam-rice-exports-idUSKCN22A1SN>. 37 Mongkol Bangprapa, ‘Egg exports banned for one week’ (Bangkok Post, 26 March 2020) <https://www.bangkokpost.com/business/1887040/egg-exports-banned-for-one-week>. 38 Dat Nguyen, ‘Vietnam to lift mask export restrictions’ (VN Express International, 16 April 2020) <https://e.vnexpress.net/news/business/industries/vietnam-to-lift-mask-export-restrictions-4085465.html> accessed 10 July 2020. 39 Khanh Vu (n 36). 40 Tommy Koh, ‘ASEAN’s Response to COVID-19: A report card’ (The Straits Times, 6 June 2020) <https://www.straitstimes.com/opinion/aseans-response-to-COVID-19-a-report-card>. 41 WTO, ‘Trade in Services in the Context of COVID-19 Information Note’ (28 May 2020) <https://www.wto.org/english/tratop_e/covid19_e/services_report_e.pdf> at p 1. 34

severely affected are those that rely on international travel, such as tourism and accommodation.42 i.

European Union (EU) On 17 March 2020, the EU closed its external borders for non-essential travel for 30 days. This was later extended until 30 June 2020.43 On 30 June 2020, the member states approved 15 “safe” countries for which travel restrictions will be lifted. These countries are chosen based on criteria such as the trend of new infections in the country, and reciprocity considerations.44

ii.

Australia Australia has closed its borders due to the COVID-19 pandemic. Only Australian citizens, residents and immediate family members can travel to Australia.45 From 25 March 2020, all Australian citizens and permanent residents have been prohibited from travelling out of Australia unless they are granted an exemption.46

iii.

China From 28 March 2020, China temporarily suspended the entry of foreign nationals holding visas or residence permits issued before 28 March 2020.47 However, essential business and official travel is permitted between Singapore and China under the Green / Fast lane arrangements.48

iv. ASEAN On 18 March 2020, Malaysia implemented its Restriction of Movement of People Order until 14 April 2020.49 Under the Order,50 interstate and international travel are prohibited. It was later extended four times until 9 June 2020, with a “Recovery Phase” Ministry of Trade and Industry Singapore, ‘Impact of the COVID-19 Pandemic on the Singapore Economy’ (26 May 2020) <https://www.mti.gov.sg/Resources/feature-articles/2020/Impact-of-the-COVID-19-Pandemicon-the-Singapore-Economy>. 43 KPMG, ‘European Union - COVID-19: Some Easing of Travel Restrictions’ (7 July 2020) <https://home.kpmg/xx/en/home/insights/2020/07/flash-alert-2020-305.html>. 44 ibid. 45 Australia Government Department of Health ‘Coronavirus (COVID-19) advice for travellers’ https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-COVID19-advice-for-travellers#travel-to-australia. 46 ibid. 47 Ministry of Foreign Affairs Singapore, ‘China-Overview’ <https://www.mfa.gov.sg/CountriesRegions/C/China/Travel-Page>. 48 ibid. 49 Vincent Tan, ‘COVID-19: Malaysia extends movement control order for third time until May 12’ (Channel News Asia, 23 April 2020) <https://www.channelnewsasia.com/news/asia/COVID-19-malaysia-extendsmovement-control-order-may-12-12670228>. 50 Baker Mckenzie, ‘Malaysia: Restriction of Movement Order’ (17 March 2020) <https://www.bakermckenzie.com/en/insight/publications/2020/03/restriction-of-movement-order>. 42

from 10 June to 31 August 2020. However, Malaysia’s border remains closed. The announcement of the Order sparked waves of panic buying in Singapore supermarkets as Malaysia is a major exporter of food to Singapore. Other member states like Vietnam have also has temporarily suspended entry of foreigners and overseas via commercial flights.51

Legality of measures under trade agreements A. WTO i.

GATT (a) ARTICLE XI Article XI.1 of the GATT provides that no exports prohibitions or restrictions other than duties, taxes or charges should be maintained on exports of goods for sale.52 However, there are exceptions under the GATT which allow countries to take emergency measures relating to national security and health. Under Art XI:2, such prohibitions are allowed if they are “temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential” to the exporting country. In China-Raw Materials, the Appellate Body elaborated that a measure is “temporarily applied” when it is “applied for a limited time… to supply a passing need.”53 It also found that XI:2(a) applies to shortages in products that are “absolutely indispensable or necessary”.54 Given that the measures taken by these countries were for a temporary period of time and to relieve domestic shortages in essential goods like food and PPE, with some countries beginning to roll back on their bans, it might be arguable that these measures fall under the exception in Art XI:2.

Ministry of Foreign Affairs Singapore, ‘Vietnam-Overview’ <https://www.mfa.gov.sg/countriesregions/v/viet-nam/travel-page>. 52 General Agreement on Tariffs and Trade 1947, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT], Art XI. 53 Appellate Body Reports, China-Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, adopted at 22 February 2012 <https://www.wto.org/english/tratop_e/dispu_e/394_395_398abr_e.pdf> at para 323. 54 Appellate Body Reports, China-Raw Materials, WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R, adopted at 22 February 2012 <https://www.wto.org/english/tratop_e/dispu_e/394_395_398abr_e.pdf> at para 326. 51

However, in these times of scarcity, governments should carefully evaluate whether there is a “critical shortage” of essential goods. Despite fears of domestic food shortages, many countries have instead reported a surplus of domestic food supplies, with some countries having high amounts of domestic food waste while importing countries face food shortages. One of the contributing factors is stockpiling.55 In Vietnam, for example, it was reported that the nation could still export 3 million tonnes of rice while protecting its food security 56 while other importers of Vietnamese rice like Australia 57 and Africa 58 faced shortages. Indeed, commentators have noted that in ASEAN, there could be “more pressure moving forward if countries implement ‘protectionist policies’”.59 (b) ARTICLE XX(b) Additionally, under the General Exceptions clause under GATT Art XX(b), contracting parties can adopt measures that are necessary to protect human life or health60 if they are not “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”. In ECAsbestos, the Appellate Body stated that “WTO Members have the right to determine the level of protection of health that they consider appropriate in a given situation”.61 Given that PPE is indeed necessary to protect people and prevent the spread of the disease, and food is necessary to sustain human life, it is arguable that export bans on such essential goods might be justified under GATT Art XX(b). Moreover, as most of the bans are universal rather than countryspecific, they are likely to satisfy the chapeau requirement of non-arbitrary and non-discriminatory as well.

55 Amy Gunia (n 27). 56 Vietnam Considers Resuming Rice Shipments Amid Virus-driven Stockpiling (VOA News, 28 March 2020) <https://www.voanews.com/east-asia-pacific/vietnam-considers-resuming-rice-shipments-amid-virus-drivenstockpiling>. 57 Pearly Neo, ‘Rice-ing concern: COVID-19 creates supply and price volatility for Asia’s most ‘cost sensitive’ crop’ (Food Navigator, 22 April 2020) <https://www.foodnavigator-asia.com/Article/2020/04/22/Rice-ingconcern-COVID-19-creates-supply-and-price-volatility-for-Asia-s-most-cost-sensitive-crop>. 58 Libby George, ‘COVID-19 is exacerbating food shortage in Africa’ (Reuters, 27 April 2020) <https://www.weforum.org/agenda/2020/04/africa-coronavirus-covid19-imports-exports-food-supply-chains>. 59 Pearly Neo, ‘COVID-19 in ASEAN: ‘Protectionist’ measures threaten global supply chains as lockdowns persist’ (Food Navigator, 14 April 2020) <https://www.foodnavigator-asia.com/Article/2020/04/14/COVID-19in-ASEAN-Protectionist-measures-threaten-global-supply-chains-as-lockdowns-persist>. 60 GATT, Art XX(b). 61 Appellate Body Reports, EC-Asbestos, WT/DS135/AB/R adopted 5 April 2001 <https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009DP.aspx?language=E&CatalogueIdList=1236&CurrentCatalogueIdIndex=0&FullTextHash=> at para 168.

(c) ARTICLE XXI Commentators have also argued that such measures can be justified under Art XXI of the GATT, which allows contracting parties to take measures for security purposes.62 This is especially so given that governments have the inherent power to protect their own national security. 63 In Russia-Traffic in Transit, the Panel interpreted an emergency as an “armed conflict, or of latent armed conflict, or of heightened tension or crisis, or of general instability engulfing or surrounding a state”.64 It might be possible that measures taken to deal with COVID-19 fall under this provision. For example, countries like the USA and Russia include pandemics as part of their national security strategy.65 ii.

GATS The measures relating to travel restrictions have not been challenged at the WTO. In any case, under GATS Article XIV, members can impose measures necessary to “protect human, animal or plant life or health.66 In this regard, countries in the EU have shown a willingness to relax travel restrictions in certain circumstances where there is evidence that travellers from certain regions pose less risk, based on evidence like the COVID-19 infection rate in their countries. 67 However, the WHO has exhorted governments to base their measures on “scientific principles, available scientific evidence and available specific guidance and advice from WHO”.68 Thus, countries should not take measures that are more trade-restrictive than necessary, such as by imposing broad travel bans on countries adjacent to those where infections have been reported.69

62 GATT, Art XXI. 63 Jingyuan Zhou, ‘Guest Post: Facilitating WTO-Compliant Responses to International Public Health Emergencies’ (International Economic Law and Policy Blog) <https://ielp.worldtradelaw.net/2020/03/guest-postfacilitating-wto-compliant-responses-to-international-public-health-emergencies-introduct.html>. 64 Report of the Panel, Russia-Traffic in Transit, WT/DS512/R adopted 26 April 2019 <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/DS/512R.pdf&Open=True> at para 7.76 65 Viktoriia Lapa, ‘GATT Article XXI as a way to justify food trade restrictions adopted as a response to COVID19?’ (Regulating for Globalization, 10 April 2020) <http://regulatingforglobalization.com/2020/04/10/gattarticle-xxi-as-a-way-to-justify-food-trade-restrictions-adopted-as-a-response-to-COVID19/?doing_wp_cron=1591517737.5501201152801513671875>. 66 General Agreement on Trade in Services, Apr 15 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) [hereinafter GATS] Art XIV. 67 Katya Adler, ‘Coronavirus: EU to allow in visitors from 15 ‘safe’ countries’ (BBC, 30 June 2020) <https://www.bbc.com/news/world-europe-53222356>. 68 Jingyuan Zhou (n 63). 69 ibid.

B. ASEAN FTA The general exceptions in the GATT are incorporated under Art 8 of the ASEAN Trade in Goods Agreement (“ATIGA”).70 As such, member States can take measures that are, inter alia, necessary to protect public morals; or to protect human, animal or plant life or health. Thus, as discussed above, these exceptions might apply to measures taken by ASEAN members during the COVID-19 pandemic. Security exceptions are incorporated under Art 9 of the ATIGA. Interestingly, Art 9(iv) also provides that member states can take actions to protect its essential security interests in times of “domestic emergency”. Arguably, if there are indeed domestic shortages of essential goods like food and PPE, such events may be “domestic emergencies” to which this section applies. Additionally, ASEAN members have demonstrated their willingness to remain open and continuing to support a rules-based international trading system during the COVID-19 period71 through a series of meetings between ministers of member states. A key meeting was the ASEAN Summit, during which members committed to keep markets open and enhance cooperation.72

C. Bilateral FTAs In its bilateral FTAs, Singapore has incorporated provisions with language similar to exceptions in Art XI,73 XX74 and XXI75 of the GATT and XIV of the GATS.76 Some RTAs, such as the Singapore-Sri Lanka RTA and the Singapore-EU RTA, further provide that parties should negotiate before putting in place such measures.77 Hence, trade-restrictive

70 Enterprise Singapore, ‘ASEAN Trade in Goods Agreement’ <https://www.enterprisesg.gov.sg//media/esg/files/non-financial-assistance/for-companies/free-trade-agreements/asean-fta/legal-text/asean-tradein-goods-agreement/Asean_Trade_In_Goods_Agreement_chaam_thailand_260209.pdf>. 71 Tommy Koh (n 40). 72 ASEAN, ‘Declaration of the Special ASEAN Summit on Coronavirus Disease 2019 (COVID-19)’ (14 April 2020) <https://asean.org/storage/2020/04/FINAL-Declaration-of-the-Special-ASEAN-Summit-on-COVID19.pdf>. 73 See e.g. Singapore-Peru Free Trade Agreement, Art 2.13(1); Singapore-Australia Free Trade Agreement Art 8(1); US-Singapore Free Trade Agreement [hereinafter ‘USSFTA’] Art 2.7(1). 74 See e.g. ASEAN Australia New Zealand Free Trade Area chapter 15 art 1(1); Japan-Singapore Economic Partnership Agreement art 17; Sri Lanka-Singapore Free Trade Agreement Art 2.16; European Union-Singapore Free Trade Agreement Art 2.14; Singapore-Australia Free Trade Agreement Art 18; China-Singapore Free Trade Agreement chapter 13 art 105. 75 See e.g. USSFTA 21.2. 76 See e.g. USSFTA Art 21.1:2. 77 See e.g. Singapore-Peru Free Trade Agreement, Art 2.16(2); European Union-Singapore Free Trade Agreement Art 2.9(2).

measures relating to exports of goods might be justified under these provisions of bilateral FTAs.

III. Trade in goods Land-scarce and resource-scarce Singapore depends heavily on international partners for its survival and prosperity. With the COVID-19 pandemic turning from a health emergency to a trade emergency, this means severe disruptions in two ways for Singapore – disruptions to trade in goods, and trade in services. Dealing first with the area of trade in goods, the continuity of the flow of goods in and out of Singapore is crucial in ordinary times, to allow for the functioning of businesses locally, as well as to fulfil the needs of residents of Singapore. With COVID-19, this becomes even more critical, especially when it concerns trade in essential items, such as medical supplies to fight COVID-19 or food for local consumption. Amongst others, several key factors have led to this disruption: (1) increased demand for essential products, in particular medical supplies; (2) restrictions placed by exporting countries on trade of goods that are deemed essential; and (3) disruptions to trade routes associated with passenger travel grinding to a halt. Singapore has sought to address these factors through various means. First, Singapore has made high-level declarations with its partners which affirm the value of free trade, as well as make broad commitments to minimise disruptions to trade in goods, and actively facilitate trade. Next, Singapore has entered into specific arrangements with New Zealand to ensure trade in essential goods, including medical supplies and foodstuff, continues with little restrictions. Third, Singapore has worked to encourage that exporting countries avoid placing excessive restrictions by calling for restraint on stockpiling, as well as setting the example for transparency by disclosing its own domestic stockpiles. Finally, Singapore’s long-term foreign policy of developing a wide network of relations has allowed it, in this crisis, to resolve some problems it has faced resolutely, as well as avoid some other problems to begin with.

High-level declarations affirming free trade In a series of high-level declarations and joint statements, Singapore has affirmed the importance of free trade and a rules-based multilateral trading system.

On 17 April 2020, as part of a Ministerial Coordination Group on COVID-19, Singapore and 12 other countries made a declaration on maintaining essential global links. 78 In this declaration, countries committed to keeping ports open and cargo routes available, in order to facilitate trade in goods.79 Further, countries agreed to encourage their private sectors to adapt to evolving circumstances and repurpose manufacturing toward critical needs so as to meet demands, both locally and globally.80 Next, on 22 April 2020, as part of the WTO General Council Committee on Agriculture, Singapore and 23 other delegations issued a joint statement titled “Responding to the COVID19 Pandemic with Open and Predictable Trade in Agricultural and Food Products”.81 In the statement, countries agreed to: ensure open and connected supply chains; 82 exercise restraint in stockpiling;83 not impose agricultural export restrictions and avoid unjustified trade barriers;84 ensure that emergency measures related to agricultural and agri-food products are targeted, proportionate, transparent and temporary; 85 provide advance notification of any trade-related measures to the WTO, as well as offer opportunities for other countries to review new measures;86 and publish updated and accurate information on levels of food production, consumption and stocks, as well as food prices.87 On 1 May 2020, Singapore and four other countries issued a “Joint Ministerial Statement on Action Plans to Facilitate the Flow of Goods and Services as well as the Essential Movement of People”.88 In the statement, they made commitments which were in essence similar to the ones listed in the paragraph above. In addition, countries committed to working on removing trade-restricting measures when the COVID-19 situation improved, and agreed to establish a “consultation mechanism” between the signatory countries to identify and address disruptions that affect trade in essential goods.89 Ministry of Foreign Affairs Singapore, ‘Declaration of the Ministerial Coordination Group on COVID-19 on Maintaining Essential Global Links’ (17 April 2020) <https://www.mfa.gov.sg/Newsroom/Press-StatementsTranscripts-and-Photos/2020/04/18042020-Ministerial-Coordination-Group-on-COVID-19>. 79 ibid paragraphs 8(a), (b) and (h). 80 ibid paragraph 8(j). 81 World Trade Organization, ‘Responding to the COVID-19 Pandemic with Open and Predictable Trade in Agricultural and Food Products (Revision)’ WT/GC/208/Rev.2, G/AG/30/Rev.2, 20-3862 (29 May 2020) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/GC/208R2.pdf>. 82 ibid paragraph 1.6(a). 83 ibid paragraph 1.6(b). 84 ibid paragraph 1.6(c). 85 ibid paragraph 1.6(d). 86 ibid paragraph 1.6(e). 87 ibid paragraph 1.6(f). 88 Ministry of Trade and Industry Singapore, ‘Joint Ministerial Statement on Action Plans to Facilitate the Flow of Goods and Services as well as the Essential Movement of People’ (29 May 2020) <https://www.mti.gov.sg/Newsroom/Press-Releases/2020/05/Joint-Ministerial-Statement-on-Action-Plans-toFacilitate-the-Flow-of-Goods-and-Services>. 89 ibid paragraph 1. 78

On 28 May 2020, Singapore and 46 other countries issued a statement reaffirming a ruledbased multilateral trading system and the central role of the WTO.90 Given the larger number of signatories, this statement included less concrete commitments, and instead focused on recognising the important role of the WTO and the work it does. On 16 June 2020, as part of the Ottawa Group, Singapore and 11 other countries issued a statement on potential actions that members of the WTO could consider taking during COVID19.91 In the statement, the Ottawa Group committed to taking the lead to withdraw any trade restrictive measures introduced during the pandemic as quickly as possible, as well as study steps that WTO members could take, having learnt from the experience of COVID-19, to avoid situations of future crises disrupting trade, food security and the long-term stability of agricultural markets. Lastly, on 19 June 2020, as a follow-up to the Special ASEAN Summit on COVID-19, ASEAN released its Hanoi Plan of Action.92 Beyond the usual commitments as seen in the other highlevel declarations, the Action Plan focused specifically on increasing cooperation amongst ASEAN Member States to ensure security of essential goods. ASEAN aims to do this by encouraging Member States to provide updates in the case of surplus production of essential goods to all other ASEAN Member States, on a best endeavour basis.

Agreement between Singapore and New Zealand Beyond the high-level declarations with its partners, Singapore has also entered into specific arrangements with New Zealand to ensure continuity of trade in essential goods, including medical supplies and foodstuff. In the “Declaration on Trade in Essential Goods for Combating the COVID-19 Pandemic” dated 15 April 2020,93 Singapore and New Zealand have agreed to various measures to ensure available supply chains and minimal disruptions to trade in goods.

World Trade Organization, ‘Statement on COVID-19 and the Multilateral Trading System by Ministers Responsible for the WTO’ WT/GC/212/Rev.1 (29 May 2020) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/GC/212R1.pdf>. 91 World Trade Organization, ‘June 2020 Statement of the Ottawa Group: Focusing Action on COVID-19, Communication from Canada’ WT/GC/217, 20-4263 (16 June 2020) <https://www.tralac.org/documents/resources/COVID-19/3737-june-2020-statement-of-the-ottawa-groupfocusing-action-on-COVID-19-wto-general-council-16-june-2020/file.html>. 92 ASEAN, ‘Hanoi Plan of Action on Strengthening ASEAN Economic Cooperation and Supply Chain Connectivity in Response to the COVID-19 Pandemic’ (26 June 2020) <https://asean.org/hanoi-plan-actionstrengthening-asean-economic-cooperation-supply-chain-connectivity-response-COVID-19-pandemic/> . 93 Ministry of Trade and Industry Singapore, ‘Declaration on Trade in Essential Goods for Combating the COVID19 Pandemic’ (15 April 2020) <https://www.mti.gov.sg/-/media/MTI/Newsroom/Press-Releases/2020/04/PressRelease--SingaporeNew-Zealand-Declaration-on-Trade-in--Essential-Goods-FINALv2.pdf>. 90

(1) Key aspects of the Declaration First, it must be noted that the Declaration includes specific lists of Goods that are covered. Unlike the high-level declarations which merely envision essential goods to include food items, agricultural products and inputs, and medical supplies generally, this agreement specifically defines products that are considered essential by both parties, and further distinguishes them, based on how important they are and the rules that should therefore apply to the products. Goods listed in Annex I of the Declaration (“Annex I Goods”) include certain food preparations, antibiotics, vitamins, medications, vaccines, dressings, pharmaceutical goods, soap, washing and cleaning preparations, disinfectants, prepared culture media, surgical gloves, textiles, laboratory glassware, sterilizers, medical instruments and appliances, therapeutic respiration apparatus, equipment related to x-rays, and thermometers. This list is much more comprehensive than the list of personal protective equipment and medical goods Switzerland envisioned, for example, when introducing its own unilateral declaration of temporary elimination of import tariffs in May 2020.94 On the other hand, goods listed in Annex II of the Declaration (“Annex II Goods”) include, inter alia, live animals, meat, fish, milk and dairy products, plants, fresh and dried fruits and vegetables, coffee, tea, spices, wheat, flour, edible oils, pasta, jams, yeast, condiments, beer and wine. As can be seen, with the exception of food preparations for infant use, Annex I Goods consist of medical goods that would be used on the frontlines in the fight against COVID19. Annex I Goods would therefore be more critical than Annex II Goods (essentially food products), and therefore deserving of more protection and measures to ensure unrestricted trade of such goods. Following this reasoning, both parties have agreed to a set of a stricter measures for Annex I Goods. First, they have agreed to eliminate all customs duties and charges of any kind for such goods, within the meaning of Article II:1(b) of the GATT 1994.95 In

94 In contrast to the Annex 1 Goods, Switzerland’s own unilateral declaration covers only HS Chapters 28; 38; 39; 40; 48; 61; 62; 63; 65; and 90. See, WTO document G/MA/W/154 (27 May 2020) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/G/MA/W154.pdf&Open=True>. 95 Ministry of Trade and Industry Singapore, ‘Declaration on Trade in Essential Goods for Combating the COVID19 Pandemic’ (15 April 2020) <https://www.mti.gov.sg/-/media/MTI/Newsroom/Press-Releases/2020/04/PressRelease--SingaporeNew-Zealand-Declaration-on-Trade-in--Essential-Goods-FINALv2.pdf> at para 1

addition, they will not apply export prohibitions or restrictions on Annex I Goods, within the meaning of Article XI:1 of the GATT 1994.96 In contrast, both parties have only agreed to endeavour to not apply export prohibitions or restrictions for Annex II Goods, unless they fall within exceptions set out in GATT 1994. 97 Where export prohibitions or restrictions are introduced, parties must give advance notice. 98 In effect, in light of COVID-19, this means that parties can easily introduce export prohibitions on Annex II Goods by relying on, inter alia: (i) Article XI:2(a) of the GATT 1994, on the basis that the party needs to prevent or relieve critical shortages of foodstuffs;99 or (ii) Article XX(b) of the GATT 1994, arguing that such restrictions are necessary in light of COVID-19 to protect human life or health.100 These would, of course, be subject to certain conditions being met under the respective exceptions. With respect to non-tariff barriers, however, the parties’ commitments do not differentiate between Annex I and Annex II Goods – parties only commit to intensifying consultations with a view to removing such barriers.101 This is probably due to the complex nature of the non-tariff barriers, which often involves other important public policy considerations such as public safety and health, and are within the turfs of government agencies other than the trade ministry. In addition, for both Annex I Goods and Annex 2 Goods, parties agree to similarly expedite and facilitate the flow and transit of all products through their air and sea ports,102 as well as endeavour to expedite the release of such products upon arrival, including introducing measures to speed up the processing of import documentation.103 Finally, the Declaration requires parties to periodically review the Declaration paragraphs and the product coverage in Annex I and Annex 2, and allows for updating of the Annexes to incorporate additional products.104

96 ibid para 2. 97 ibid para 8. 98 ibid para 9. 99 GATT, Article XI:2(a). 100 GATT, Article XX:b. 101 Ministry of Trade and Industry Singapore, ‘Declaration on Trade in Essential Goods for Combating the COVID-19 Pandemic’ (15 April 2020) <https://www.mti.gov.sg/-/media/MTI/Newsroom/PressReleases/2020/04/Press-Release--SingaporeNew-Zealand-Declaration-on-Trade-in--Essential-GoodsFINALv2.pdf> at para 3. 102 ibid para 4. 103 ibid para 5. 104 ibid para 13.

(2) Significance of the agreement Having discussed the content of the Declaration, it would now be worth laying out the context of trade relations between Singapore and New Zealand, as well as why such a specific agreement is beneficial for Singapore. First, Singapore is New Zealand’s largest trading partner in Southeast Asia, and seventhlargest trading partner globally. 105 In the year ending December 2018, bilateral trade between both countries amounted to NZ$5.2 billion. Being a significant trading partner, securing its continued partnership during COVID-19 was crucial, especially at a time when many others are choosing to adopt protectionist measures. As was noted by the High Commissioner of New Zealand to Singapore, the real benefit of this agreement is that food arrives from New Zealand to Singapore, and medical supplies and other goods are sent from Singapore to New Zealand as part of this partnership.106 In fact, the first freight flight to Singapore from New Zealand after the signing of the Declaration saw 20 tonnes of chilled meat arriving in Singapore, including lamb and beef, while subsequent flights would carry more meat, as well as fruits and eggs.107 Ultimately, for a country which relies on imports for most of its food supplies, such an agreement is extremely beneficial during times of pandemic. Second, Singapore and New Zealand, despite being small countries, also have a long history of pioneering in rule-making efforts at the international level. For example, it was Singapore and New Zealand, along with Chile, that first created the Trans-Pacific Strategic Economic Partnership Agreement (“P4 Agreement”) in 2005 to “act as a benchmark for trade liberalization among APEC economies and create a demonstration effect for the WTO”.108 The P4 Agreement later morphed into the CPTPP, one of the largest mega-FTAs the world has ever seen. 15 years later, it was also Singapore’s initiative, along with New Zealand and Chile, to create the Digital Economy Partnership Agreement, in order to “set forward-looking standards on digital trade, and establish new New Zealand Foreign Affairs and Trade, ‘CEP overview’ <https://www.mfat.govt.nz/en/trade/free-tradeagreements/free-trade-agreements-in-force/nz-singapore-closer-economic-partnership/cep-overview/>. 106 Jo Tyndall, High Commissioner of New Zealand to Singapore, ‘S’pore and New Zealand: Standing together amid COVID-19 challenges’ (The Straits Times, 1 May 2020) <https://www.straitstimes.com/opinion/spore-andnew-zealand-standing-together-amid-COVID-19-challenges?xtor=CS318&utm_source=STiPhone&utm_medium=share&utm_term=2020-05-01%207%3A05%3A37>. 107 Lena Loke, ‘New Zealand sends first batch of essential supplies to Singapore, as part of pact to keep trade flowing amid COVID-19’ (TODAY Online, 22 April 2020) <https://www.todayonline.com/singapore/newzealand-sends-first-batch-essential-supplies-singapore-part-pact-keep-trade-flowing>. 108 For the early history of the P4 Agreement, see Henry Gao, ‘The Trans-Pacific Strategic Economic Partnership Agreement: High Standard or Missed Opportunity?’, (Trade-led Growth: A Sound Strategy for Asia: Papers presented at the 5th Anniversary Conference of ARTNeT "Trade-Led Growth in Times of Crisis", 2-3 November 2009 at p 79-95) <https://www.unescap.org/sites/default/files/0%20-%20Full%20Report_11.pdf>. 105

international approaches to support the digital economy and trade in the digital era.”109 Going forward, it would not be surprising for the approach taken by the two countries in the Declaration on Trade in Essential Goods sets the example for “Inverse-Exceptions”110 which helps all countries in their ongoing fight against the pandemic. That is probably why the Declaration also includes an open-accession clause, welcoming the participation “by any Member of the WTO, or State or separate customs territory in the process of acceding to the WTO.”111

Stockpiling and Singapore’s response

(1) The issue of stockpiling Next, a problem that has become especially evident during the COVID-19 pandemic is that of stockpiling. Stockpiling is not just seen within individual households during times of pandemic, nations also stockpile in preparation for times of pandemic. There is an understandable need to accumulate resources that are essential to the safety of a country and that could potentially be in shortage during crises, but stockpiling can also be done excessively. As an example of excessive stockpiling, China has sufficient grain reserves to last a year, with an estimated 470kg of wheat and rice stocks per capita.112 In fact, of the world’s total rice stocks, more than 60% are held in China’s reserves.113 In the case of Vietnam, amidst supply chain disruptions during the outbreak of COVID19, Vietnam announced in late-March 2020 that it would stockpile 270,000 tonnes of 109 Ministry of Trade and Industry Singapore, ‘Singapore leads the way in new Digital Economy Partnership Agreement with Chile and New Zealand’ (17 May 2019) <https://www.mti.gov.sg/Newsroom/PressReleases/2019/05/Singapore-leads-the-way-in-new-Digital-Economy-Partnership-Agreement-with-Chile-andNew-Zealand>. 110 Mona Pinchis-Paulsen, ‘COVID-19 Symposium: Thinking Creatively and Learning from COVID-19- How the WTO Can Maintain Open Trade on Critical Supplies’ (OpinioJuris, 2 April 2020) <http://opiniojuris.org/2020/04/02/COVID-19-symposium-thinking-creatively-and-learning-from-COVID-19how-the-wto-can-maintain-open-trade-on-critical-supplies/>. 111 Ministry of Trade and Industry Singapore, ‘Declaration on Trade in Essential Goods for Combating the COVID-19 Pandemic’ (15 April 2020) <https://www.mti.gov.sg/-/media/MTI/Newsroom/PressReleases/2020/04/Press-Release--SingaporeNew-Zealand-Declaration-on-Trade-in--Essential-GoodsFINALv2.pdf> at para 11. 112 Zhang Yangfei, ‘Reserves of grain, food still ample in nation’ (China Daily, 6 April 2020) <http://www.chinadailyasia.com/article/126780>. See also Xinhua, “China increases state rice purchasing to strengthen grain reserve” (9 April 2020) <http://www.xinhuanet.com/english/2020-04/09/c_138962183.htm>. 113 United States Department of Agriculture Foreign Agricultural Service, ‘World Rice Production, Consumption and Stocks’ (11 June 2020) <https://apps.fas.usda.gov/psdonline/reporthandler.ashx?reportId=681&templateId=7&format=html&fileName= World%20Rice%20Production,%20Consumption,%20and%20Stocks>.

rice.114 This would be done, inter alia, by suspending the signing of new export contracts. Vietnam, however, revised this plan three weeks later to instead introduce export quantity limits. 115 Had the world’s third largest rice exporter maintained the export ban, 116 however, there would have been an estimated 10-15% reduction in market supply.117 Such actions, in fact, led to a chain reaction in stockpiling in countries such as Philippines and Egypt. Thus, while there was no real shortage in supplies of grains, the price of rice increased by 14% to $410 a tonne, and the prices of wheat and barley increased by 810% just within the span of two weeks.118

(2) What Singapore has done thus far In response, Singapore has committed with 22 other countries to exercise restraint in stockpiling agricultural products that are traditionally exported, as well as to provide timely and accurate information on food supply, demand, stocks and prices.119 In addition, as part of providing accurate and timely information on stockpiles, Singapore already has a Rice Stockpile Scheme, and stock information is publicly available.120 All importers of rice are made to sign onto the scheme, making them aware in advance of

114 Khanh Vu, ‘Vietnam to stockpile 270,000 tonnes of rice to ensure food security amid virus spread’ (Reuters, 27 March 2020) <https://www.reuters.com/article/health-coronavirus-vietnam/vietnam-to-stockpile-270000tonnes-rice-to-ensure-food-security-amid-virus-spread-idUSL4N2BK1JO>. 115 Mai Ngoc Chau, ‘Shoppers Everywhere Hoarding Rice Cost Vietnam Its Stockpile’ (Bloomberg, 17 April 2020) <https://www.bloomberg.com/news/articles/2020-04-17/shoppers-everywhere-hoarding-rice-cost-vietnam-itsstockpiles>. 116 United States Department of Agriculture Foreign Agricultural Service, ‘Grain: World Markets and Trade’ (June 2020) <https://apps.fas.usda.gov/psdonline/circulars/grain-rice.pdf>. 117 Sen Nguyen and Reuters, ‘Coronavirus: Vietnam stockpiles rice as outbreak spreads and food security concerns grow’ (South China Morning Post, 28 March 2020) <https://www.scmp.com/weekasia/economics/article/3077272/coronavirus-vietnam-stockpiles-rice-outbreak-spreads-and-food>. 118 The Philippines and China are the main rice importers of Vietnam. World Health Organisation, ‘Coronavirus disease 2019 (COVID-19) Situation Report – 67’ (27 March 2020) <https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200327-sitrep-67-COVID-19.pdf?sfvrsn=b65f68eb_4>. See also, Reuters, ‘Vietnam halts new rice export contracts as it reviews stocks’ (Bangkok Post, 25 March 2020) <https://www.bangkokpost.com/business/1886355/vietnam-halts-new-rice-export-contracts-as-it-reviewsstocks#:~:text=The%20largest%20buyers%20of%20Vietnam's,Saturday%2C%20according%20to%20the%20st atement>. The Philippines imports almost 90% of its rice from Vietnam. See Pearly Neo, ‘Rice-ing concern: COVID-19 creates supply and price volatility for Asia’s most ‘cost-sensitive’ crop’ (Food Navigator, 22 April 2020) <https://www.foodnavigator-asia.com/Article/2020/04/22/Rice-ing-concern-COVID-19-creates-supplyand-price-volatility-for-Asia-s-most-cost-sensitive-crop>. 119 World Trade Organization, ‘Responding to the COVID-19 Pandemic with Open and Predictable Trade in Agricultural and Food Products (Revision)’ WT/GC/208/Rev.2, G/AG/30/Rev.2, 20-3862 (29 May 2020) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/GC/208R2.pdf>. 120 ‘Rice Stockpile Scheme (RSS) Monitoring System [Public] > Home > Rice Stockpile Scheme’ (accessed 10 July 2020) <https://rice.enterprisesg.gov.sg/Home/RiceStockpileScheme.aspx>.

Singapore’s intention to stockpile some amount of rice. 121 This clear, transparent approach prevents the introduction of short-term rise of demand that usually accompanies stockpiling. Finally, OECD recommends the creation of stockpiles on a regional basis.122 ASEAN already has its ASEAN Plus Three Emergency Rice Reserves (“APTERR”), where rice reserves are held by three donor countries as well as the importing countries to mitigate the consequences of inaccessibility in the event of export bans.123 However, a drawback remains that ASEAN Member States have failed to provide timely data updates to other Member States, 124 which renders the early warning system for the APTERR to be activated in times of regional crisis ineffective.

Singapore’s long-term foreign policy of making many friends Finally, Singapore’s long-term foreign policy of developing a “wide network of relations”125 has allowed it, in this crisis, to resolve some problems it has faced resolutely, as well as avoid some other problems. Singapore has constantly diversified its source of imports. For example, as part of its diversification strategy, besides traditional sources such as Thailand, Vietnam and India, Singapore also imports rice from Myanmar, Cambodia, Japan and the USA.126 Further, Singapore’s maintaining of friendships with all its international partners meant that during the COVID-19 pandemic, when one existing partner was facing constraints in providing essential items, Singapore could enter into an arrangement with a new partner. In June 2020, following on from a Joint Ministerial Statement by Singapore and Poland affirming their

Mely Caballero-Anthony et al., ‘Public Stockpiling and Food Security’ (S. Rajaratnam School of International Studies, Nanyang Technological University, May 2015) <https://www.rsis.edu.sg/wp-content/uploads/2015/06/PB150603_Public-Stockpiling.pdf>. 122 Organisation for Economic Co-operation and Development, ‘COVID-19 and International Trade: Issues and Actions’ (12 June 2020) <https://read.oecd-ilibrary.org/view/?ref=128_128542-3ijg8kfswh&title=COVID19and-international-trade-issues-and-actions>. 123 N. Kumar, J. George, Regional Cooperation for Sustainable Food Security in South Asia (Routledge India, 2019). 124 Mely Caballero-Anthony et al., ‘Public Stockpiling of Rice in Asia Pacific, NTS Report No.3’ (S. Rajaratnam School of International Studies, Nanyang Technological University, April 2016), at p 11 <https://www.rsis.edu.sg/wp-content/uploads/2016/04/NTS-Report-No-3-11April2016.pdf>. 125 The Straits Times, ‘Full speech: Five core principles of Singapore’s foreign policy’ (17 July 2017) <https://www.straitstimes.com/singapore/five-core-principles-of-singapores-foreign-policy>. 126 Ang Hwee Min, ‘Singapore’s imports of Thai rice ‘easily met’ by alternative sources but climate change could affect food security’ (Channel News Asia, 10 September 2019) <https://www.channelnewsasia.com/news/singapore/singapore-s-imports-of-thai-rice-easily-met-by-alternative11887182>. 121

commitment to strengthen economic cooperation, 127 Singapore received its first ever shipment of chicken eggs from Poland.128

IV. Trade in services Beyond trade in goods, Singapore has also seen disruption to trade in services. Amongst others, one of the key factors behind such disruption is the introduction of restrictions on movement of people on people seeking to enter Singapore, as well as movement of people within the country.

Restrictions on movement of people introduced Singapore first started its restrictions on movement of travellers into Singapore with a restriction on 1 February 2020 of all short-term visitors with recent travel history to mainland China, given the likelihood then of widespread community transmission across China. 129 Subsequently, when there was a surge of confirmed cases in the Republic of Korea’s Daegu city and Cheongdo county, Singapore disallowed all new visitors with recent travel history to Daegu and Cheongdo from 2359hrs on 26 February 2020. 130 In a series of progressive restrictions, Singapore eventually disallowed all short-term visitors from entering or transiting in Singapore beginning from 2359hrs on 23 March 2020. 131 This was in response to the increasing number of imported cases being seen in Singapore. Subsequently, on 7 April 2020, Singapore entered a “circuit breaker” under the COVID-19 (Temporary Measures) (Control Order) Regulations 2020,

132

where all non-essential

workplaces were closed, and only essential workplaces remained open. This was in response to the increasing number of unlinked community cases in the previous month, as well as the 127 Ministry of Trade and Industry Singapore, ‘Singapore and Poland Agree to Strengthen Economic Cooperation and Connectivity to Tackle COVID-19’ (29 May 2020) <https://www.mti.gov.sg/Newsroom/PressReleases/2020/05/Singapore-and-Poland-agree-to-strengthen-economic-cooperation-and-connectivity-to-tackleCOVID-19>. 128 Ministry of Trade and Industry Singapore, ‘Singapore imports first shipment of eggs from Poland’ (5 June 2020) <https://www.mti.gov.sg/Newsroom/Press-Releases/2020/06/Singapore-imports-first-shipment-of-eggsfrom-Poland>. 129 Ministry of Health Singapore, ‘Extension of Precautionary Measures to Minimise Risk of Community Spread in Singapore’ (31 January 2020) <https://www.moh.gov.sg/news-highlights/details/extension-of-precautionarymeasures-to-minimise-risk-of-community-spread-in-singapore>. 130 Ministry of Health Singapore, ‘Additional Precautionary Measures in Response to Escalating Situation in Daegu and Cheongdo’ (25 February 2020) <https://www.moh.gov.sg/news-highlights/details/additionalprecautionary-measures-in-response-to-escalating-situation-in-daegu-and-cheongdo>. 131 Ministry of Health Singapore, ‘Additional Border Control Measures to Reduce Further Importation of COVID19 Cases’ (22 March 2020) <https://www.moh.gov.sg/news-highlights/details/additional-border-controlmeasures-to-reduce-further-importation-of-COVID-19-cases>. 132 COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (No. S 254/2020).

risk of a large cluster of infections.133 On 21 April 2020, it was announced that the circuit breaker would be extended till 1 June 2020 and that measures would be tightened where necessary.134 Later, on 2 May 2020, it was announced that Singapore would ease some of the tighter circuit breaker measures progressively.135 With the easing of circuit breaker measures in three phrases from 2 June 2020 onwards, the question that remains is how Singapore has addressed the problem of allowing essential business travel to continue while preventing, or at least reducing, the risk of imported cases arriving in Singapore.

How Singapore has addressed this problem Singapore’s solution to resuming essential business and official travel has been a calibrated and careful one, given the evolving COVID-19 situation locally and abroad. In this section, we look at Singapore’s arrangements and agreements thus far: (1) the Singapore-China Fast Lane for Essential Travel; (2) Singapore’s agreement with Malaysia to establish a Reciprocal Green Lane and a Periodic Commuting Arrangement for cross-border travel; and (3) Singapore’s commitment with Australia, Canada, South Korea, and New Zealand to resume essential cross-border travel.

(1) Singapore-China fast lane for essential travel Beginning first with Singapore’s arrangements with China, the Ministry of Foreign Affairs announced on 3 June 2020 that the two countries have agreed to create a fast lane for essential business and official travel. This fast lane would be established between Singapore and six Chinese provinces and municipalities: Chongqing, Guangdong, Jiangsu, Shanghai, Tianjin and Zhejiang. Both countries also remain open to expanding this arrangement to other Chinese provinces and municipalities in the future. This fast lane for essential travel comes with several hurdles that applicants must pass through before they can enter Singapore. First, applicants must be sponsored by either 133 Ministry of Health Singapore, ‘Circuit Breaker to Minimise Further Spread of COVID-19’ (3 April 2020) <https://www.moh.gov.sg/news-highlights/details/circuit-breaker-to-minimise-further-spread-of-COVID-19>. 134 Gov.sg, ‘PM Lee’s address on the COVID-19 Situation in Singapore’ (21 April 2020) <https://www.gov.sg/article/pm-lees-address-on-the-COVID-19-situation-in-singapore-21-april-2020>. 135 Ministry of Health Singapore, ‘Easing the Tighter Circuit Breaker Measures, Preparing for Gradual Resumption of Activity after 1 June’ (2 May 2020) <https://www.moh.gov.sg/news-highlights/details/easing-thetighter-circuit-breaker-measures-preparing-for-gradual-resumption-of-activity-after-1-june>.

a company or a Singapore Government agency, which would have to file an application for a SafeTravel Pass. After obtaining a SafeTravel Pass (which will be issued together with an approval letter), the applicant would apply for a visa as he normally would. The approved applicant must also electronically submit pre-trip health and travel history declarations before entering Singapore, via the SG Arrival Card. Applicants must also comply with pre-arrival and post-arrival health measures. Before arrival, approved applicants must monitor their health status, take a polymerase chain reaction (“PCR”) test within 48 hours before departure and obtain certification that he has tested negative for COVID-19. The cost of the PCR test would be borne by the applicant. In addition, the applicant must have remained in one the six Chinese fast lane regions for the last seven days prior to departure. Upon arriving in Singapore, the applicant will undergo a PCR test again (the cost of which he will bear), and must remain in isolation at a self-sourced and self-funded declared accommodation until the PCR test result is known. If the result is negative, the applicant can only travel from his declared accommodation to the workplace, and back. If the result is positive, he must bear the cost of treatment for COVID-19. There is also a requirement for travellers to use Singapore’s contact tracing application, TraceTogether, throughout their stay. Finally, travellers must adhere to a controlled itinerary supervised by their sponsor for the first 14 days, and are disallowed from using public transportation for this purpose.136 These comprehensive safety measures and controls in place to restrict the movement of essential travellers may serve as a model for future arrangements with other countries. However, as mentioned in Singapore’s own joint press statement, this is ultimately a pilot scheme, and tweaks may be necessary if there are new public health considerations.137

(2) Singapore-Malaysia Reciprocal Green Lane (“RGL”) and Periodic Commuting Arrangement (“PCA”) Next, Singapore has also entered discussions on resuming essential cross-border travel with its closest neighbour, Malaysia, which it shares a land border with. Some estimate that between 200,000 and 250,000 Malaysians ordinarily commute through either of the

Ministry of Foreign Affairs Singapore, ‘Joint Press Statement by Ministry of Foreign Affairs and Ministry of Trade and Industry on the Singapore-China Fast Lane for Essential Travel’ (3 June 2020) <https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2020/06/20200603-SG-CHINAFast-Lane-Essential-Travel> at Annex paras 2, 3, 5 and 6. 137 ibid at para 1. 136

two land borders each day to work in Singapore, before the COVID-19 restrictions.138 This makes the resuming of essential cross-border travel important for both Singapore and Malaysia. On 26 June 2020, the Prime Ministers of both countries discussed the gradual and phased resumption of cross-border travel. Following this discussion, it was announced by the Ministry of Foreign Affairs on 27 June that both have agreed to establish a RGL and a PCA.139 This was formally introduced in a Joint Press Statement issued by the Foreign Ministers of both countries on 14 July 2020.140 Both countries aim to implement the RGL and PCA on 10 August 2020. Each country has committed to publish the requirements, health protocols, and application process involved for entry and exit into Malaysia and Singapore 10 days prior to the implementation of the RGL and PCA. The RGL will facilitate cross-border travel for official purposes or essential businesses. Specific COVID-19 prevention and public health measures have yet to be finalised. For now, it is only confirmed that eligible travellers will need to undergo PCR swab tests, as well as submit to the relevant authorities of the receiving country a controlled itinerary, which they will have to adhere to during their visit. The PCA is catered for residents from either country who hold long-term immigration passes for business and work purposes in the other country. The PCA will allow for such residents to periodically return to their home countries for short-term home leave after they have spent at least three consecutive months in their country of work. After their home leave, they will be able to re-enter their country of work to continue work for at least another three consecutive months. Further, both countries have committed to work on other appropriate schemes to allow for daily cross-border commuting for work purposes for travellers from both countries. This will, however, depend on the required health protocols and available medical resources in both countries. Channel News Asia, ‘Allowing Malaysians to commute to Singapore will boost both countries’ economies: Johor chief minister’ (9 June 2020) <https://www.channelnewsasia.com/news/asia/malaysian-singaporecommute-johor-economy-12819754>. 139 Ministry of Foreign Affairs Singapore, ‘Prime Minister Lee Hsien Loong’s Telephone Call with Malaysian Prime Minister Tan Sri Muhyiddin Yassin’ (27 June 2020) <https://www.mfa.gov.sg/Newsroom/PressStatements-Transcripts-and-Photos/2020/06/20200627---S-M-RGLPCA>. 140 Ministry of Foreign Affairs Singapore, ‘Joint Press Statement by YB Dato’ Seri Hishammudin Tun Hussein, Minister of Foreign Affairs of Malaysia and H.E. Dr. Vivian Balakrishnan, Minister for Foreign Affairs of the Republic of Singapore: Malaysia and Singapore to Implement the Reciprocal Green Lane for the Movement of Essential Business/Official Travellers and Periodic Commuting Arrangement for Cross-Border Travel between Malaysia and Singapore’ (14 July 2020) <https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-andPhotos/2020/07/20200714-Joint-Press-Statement>. 138

Given the large number of Malaysians that traditionally commute to Singapore daily to work, such an arrangement between Singapore and Malaysia is critical to ensure the continued the continued trade in services.

(3) Singapore’s joint commitment with Australia, Canada, South Korea and New Zealand Finally, Singapore has made a joint commitment with four other countries to facilitate the resumption of cross-border travel during COVID-19 while balancing public health considerations.141 While this has not concretised into specific plans, Minister for Trade and Industry Chan Chun Sing noted that there will need to be standardised protocols for mutual assurance of health standards, in terms of testing and contact tracing.

Potential issues that may arise as a result of such bilateral arrangements As can be seen from the above, Singapore is choosing to pursue its plans to resume essential cross-border travel primarily through bilateral arrangements, beginning first with China. A question that may arise here is whether such arrangements would be in violation of international trade principles such as the Most Favoured Nation (“MFN”) principle, where countries must grant WTO Members the most favourable treatment that it grants to services and service providers of any other country.142 On one hand, it may seem like such bilateral agreements would violate the MFN principle, since Article I.2(d) of the GATS 1994 refers to supply of services “through presence of natural persons of a Member in the territory of another Member” and this suggests that the scope of the GATS extends to cover liberalisation of movement of persons. However, movement of persons is not an area where Members are obligated to negotiate specific commitments. The Annex on Movement of Natural Persons Supplying Services under the Agreement only offers an option that Members may negotiate specific commitments with respect to movement of natural persons.143

141 Jolene Ang, ‘Coronavirus: Singapore, Australia, Canada, South Korea, New Zealand commit to resuming essential cross-border travel’ (The Straits Times, 1 May 2020) <https://www.straitstimes.com/singapore/coronavirus-singapore-australia-canada-south-korea-new-zealandcommit-to-resume-essential>. 142 GATS, Article II:1. See also Michael Trebilcock, Robert Howse, Antonia Eliason, The Regulation of International Trade (4th Edition, Routledge 2012) at p 482. 143 GATS Annex on Movement of Natural Persons Supplying Services under the Agreement. See also, Michael Trebilcock, Robert Howse, Antonia Eliason, The Regulation of International Trade (4th Edition, Routledge 2012) at p 481.

Hence, to the extent that Singapore has not made specific commitments under mode 4 for the relevant sector, it would not violate its obligations under the GATS. Moreover, even in sectors where specific commitments on mode 4 have been made, Singapore’s restrictions and bilateral agreements can be justified under the exceptions available under the GATS that match those under the GATT 1994, which allow for exceptions to be made for measures which are necessary to protect human health.144

IV. Conclusion As we can see in the forgoing discussions, Singapore faced many challenges at the onset of the pandemic, which threatened the supply of food and other essential products, and disrupted business travel and trade in services. Many of these trade restrictions can be justified by the various exceptions clauses in trade agreements, which means that they are unlikely to go away for some time. In response, Singapore has made innovative use of trade agreements, which include the following: 1. High-level declarations with like-minded countries affirming the principle of free trade, the importance of the ruled-based multilateral trading system and the central role of the WTO, and calling for countries to withdraw the restrictions as soon as is practical. While these high-level declarations are non-binding and do not address specific issues, their very existence helps to fend off the threat of protectionism, which as the history before the Second World War has taught us, is even more contagious and deadly than pandemics. 2. Bilateral agreement with New Zealand to ensure smooth flow of trade in essential goods. As the first such agreement in the world, the agreement has obvious symbolic value as one that bucks the trend of trade protectionism and set an example for free trade. But it is more than just being symbolic. Instead, the Declaration, by listing in detail the specific products deemed to be “essential products”, and by differentiating between medical products and food products into two annexes with different obligations, has provided a practical model for countries around the world to follow in concluding such “InverseExceptions” agreements.145 Or, even better, they do not need to draft their own agreement and can just sign on to the Declaration pursuant to its open-accession clause.

GATS Article XIV(b). 145 Mona Pinchis-Paulsen (n 110). 144

3. Stockpiling and diversification of supply. As a country famous for its “siege mentality”, or kiasuism, 146 Singapore is arguably well prepared for any crisis with its rice stockpiling scheme, which, started in 1968, is almost as old as the republic itself.147 Such stockpiling, prepared for a rainy day, is necessary for a country that does not have its own agricultural production. The panic stockpiling by countries as COVID-19 spread around the world, however, is a rather different story, as many countries did not conduct a careful analysis of supply and demand before adopting such measures, resulting in excessive stockpiling that leads to waste and pushes up the prices of staple food items. By calling for countries to exercise due restraint and ensure the transparency of information, Singapore also set an example for a good stockpiling policy. In addition, instead or solely relying on the good will of countries in not hoarding more than necessary, Singapore has also taken a proactive approach by exploring non-traditional sources of supply, so that not all eggs are put in one basket. 4. Trade in services and movement of people. The movement of people is essential to the supply of services, especially for Singapore, a country with a small population base and chronic shortage of labour. Singapore solutions in this regard - both the RGL and PCA with its immediate neighbour Malaysia, which ensures the movement of key services personnel for various manual labour tasks; as well as the fast lane arrangement with China, which facilitates the travel of higher-value services activities – also provides instructive lessons for countries as they enter the next phase and ease the travel restrictions. Despite its small size, Singapore has constantly “punches above its weight because of its wise policies and ability to work with all countries”.148 The COVID-19 pandemic provides yet another opportunity for the small island nation to showcase its ability to navigate difficult times through creative use of trade agreements. As the world embark on the road to recovery, the Singaporean experience will offer an invaluable lesson to all countries on the huge potential of trade to make the world a better place.

146 Peter Ho, ‘IPS-Nathan Lectures: The Challenges of Governance in a Complex World, Lecture III – The Paradox of Singapore and the Dialectic of Governance’ (3 May 2017) <https://lkyspp.nus.edu.sg/docs/defaultsource/default-document-library/mr-peter-ho-sspeech22ad087b46bc6210a3aaff0100138661.pdf?sfvrsn=a5116a0a_0> at p 3. 147 Kopi, ‘What Happens If Singapore Runs Out of Food? The National Stockpile, Explained’ (11 February 2020) <https://thekopi.co/2020/02/11/national-stockpiles-explained/>. 148 President Obama’s remarks, ‘Remarks by President Obama and Prime Minister Lee Hsien Loong of the Republic of Singapore After Bilateral Meeting, Kuala Lumpur Convention Centre, Kuala Lumpur, Malaysia’ (22 November 2015) <https://obamawhitehouse.archives.gov/the-press-office/2015/11/22/remarks-president-obamaand-prime-minister-lee-hsien-loong-republic>.

4. Exorcising the ghost in the Wills Act Tang Hang Wu149 Ingenious lawyers all over the Commonwealth are dreaming up rigmaroles for the signing of wills amid the pandemic. An English law firm has suggested that the will should be signed at a park bench, with witnesses lurking nearby, ready to rotate around the document. Another option allows for the will to be signed at the person’s doorway while the witnesses stand outside, using the services of a well-trained pet to deliver the signed will to the witnesses. Singapore has passed many sensible temporary measures in response to COVID-19 disruption, including marrying couples remotely so that the newly-weds, witnesses and solemniser need not be physically present. Yet, such proximity remains required for an important life admin – the execution of a valid will. Like many Commonwealth countries, Singapore’s Wills Act mandates the presence and signatures of two witnesses, neither of whom are beneficiaries, making the process of executing a valid will onerous during this time. The current law is doing a disservice to people who want to sort out their affairs – especially during a time when life is potentially more fragile. Demand for will writing in the UK has reportedly jumped by 76 per cent. Here, fewer than 15 to 20 per cent of Singaporeans are estimated to have made a will.

Why wills are important A cynical reader may be thinking that making a will might be unnecessary because his estate would be dealt with automatically under the Intestate Succession Act upon death. However, intestacy – that is, not having made a will before one dies – is far from ideal. It causes delay and stress to surviving family members and may have unintended consequences. If a person leaves behind a spouse and child, the estate will go entirely to them, excluding his parents. This might not be what he would have wanted, especially if he had always taken care of his parents financially. Recently, I was consulted over the affairs of a distant relative who had died intestate. He had a long-term partner, whose child he had considered to be his own despite there being no adoption. Under the laws of intestacy, they did not stand to inherit any of his property. Also, getting probate Professor of Law, Singapore Management University.

149

(or establishing legal validity) over his estate was formidable and expensive. All his five siblings, one of whom is currently overseas, had to file court documents to appoint an administrator. For siblings who passed away, death certificates had to be produced to the court. All these complications and expenses would have been unnecessary if only he made a will.

Why the law is designed this way The law’s insistence for the physical presence of two witnesses may be explained on the basis that it protects a person from fraud and coercion when signing a will. Lawyers, being creatures of tradition, have not seen it fit to change this law, which dates to the Victorian era. But does this rationale still hold water in this time where video conferencing – even in High Court hearings – is ubiquitous? Why is the remote presence of witnesses not allowed? Is the rule which requires the physical presence of two witnesses, ultimately, merely a ghost from the past that is no longer relevant? If so, the rule should be modified. As a wise judge once said in another context “[w]hen these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course… is to pass through them undeterred.”

And why the law needs to change To facilitate the execution of valid wills, a temporary measure should be passed, like the solemnisation of marriages, to allow for a will to be executed with witnesses present remotely. Safeguards could be built to protect a person from fraud or coercion by insisting that a will may be executed by him only under his lawyer’s remote supervision with the remote presence of two witnesses. An additional safeguard could be to insist that the execution process and the signed document be recorded by high-definition video. Singapore would not be the first country to introduce such a temporary measure. Some countries like Australia, Canada and New Zealand, and many states in the United States, have allowed for witnesses and officials to appear by audio-video technology rather than in person. If such a temporary measure does not lead to further litigation, a strong case may be made that remote presence of witnesses should be allowed permanently. Another casualty of the law mandating physical witnesses is the recognition of electronic wills. While revamping the law of wills that has stood close to nearly 200 years is a bold move, it is ultimately necessary to take into account the digital age that we live in. Several states in the United

States like Arizona, Florida, Nevada and Indiana have already enacted legislation allowing for electronic wills. In fact, the Uniform Law Commission has approved and recommended for enactment the Uniform Electronic Wills Act in the United States. The UK Law Commission has also recently issued a consultation paper calling for views on enacting enabling legislation to cater for electronic wills. Since the technology in relation to electronic wills may be developing, Singapore’s legislation may be drafted based on broad principles. First, and foremost, electronic signatures must be secure. Second, the legislation should not unduly prescribe the technology used because this might stifle innovation and commercial incentives to develop the necessary technology. Finally, any technology developed for electronic will-making must provide for a central repository that is safe from hacking, with access given to interested Government departments. The balance between these principles could be struck by conferring on the Minister of Law the power to recognise relevant technology that meets these criteria by way of subsidiary legislation. The only good thing that has come out from this pandemic is that it has accelerated digital transformation in many organisations and our daily lives. In the age of ubiquitous smartphones and Wi-Fi, it does not make sense for us to be bound by an antiquated law that insists on physical proximity and pen on paper. Just as one can conclude and sign a multimillion-dollar contract electronically, one should also be able to execute a will digitally, with the proper safeguards built in. While Singapore prides itself on being progressive in technology use in all life aspects, it seems strange that we have not modernised our laws in relation to technology and end-of-life planning issues. The Wills Act should be amended in a way that gives people the opportunity to make their wills in an accessible, convenient and secure manner.

5. COVID-19 crisis and its impact on trustees and beneficiaries Yip Man150 Introduction The COVID-19 pandemic has been described by Prime Minister Lee Hsien Loong as the “crisis of our generation”. We have to swiftly adjust to a new “normal” characterised by safety measures, travel restrictions, economic downturn and uncertainties in the days ahead. What is the new “normal” for trustees and beneficiaries? How should they respond to the legal and practical uncertainties in these challenging times? This commentary discusses two categories of uncertainties for trustees and beneficiaries: (1) uncertainty relating to trust investments; and (2) uncertainty relating to day-to-day administration.

Uncertainty relating to trust investments Whether in good times or bad times, a trustee must act prudently and in accordance with their statutory and common law duties in respect of their exercise of the power of investment. However, in bad times such as the current economic climate, many investments may become risky to undertake and the performance of existing investments may turn out to be poor, yielding lower returns or even losses to the trust estate. This can potentially expose the trustees to breach of trust claims initiated by the beneficiaries, even though a bad investment outcome by itself does not establish a breach of trust. Trustees should carefully review investment performance and strategy, consider whether to vary the investment portfolio and where an investment manager has been appointed, to review the investment policy and activities. Doing proper research and seeking advice before entering into an investment decision would be crucial, as is the recording of the full reasons and the prudent decision-making process for undertaking high-risk investments. Unless directed by the trust deed, a more conservative investment strategy is to be preferred in such challenging times. Other than ensuring the proper discharge of one’s duties, a trustee would be well-advised to communicate with the beneficiaries, so as to manage their expectations on investment returns during this period. Two specific examples of lower investment returns are highlighted below. First, for non-residential real properties held on trust that have been leased to Small and Medium Enterprises (SMEs), trustees should take note that the COVID-19 (Temporary Measures)

150 Associate Professor of Law, Singapore Management University.

(Amendment) Act 2020 provides an enhanced rental relief framework for SMEs.151 In essence, an eligible SME tenant can receive up to 4 months’ waiver of rent for commercial properties and 2 months’ waiver of rent for industrial/office properties. The scheme envisages co-sharing of rental obligations between the Government, the landlord and the tenant. The first two months of rental relief for SME tenants of commercial properties (or the first month for SME tenants of industrial/office properties) would be covered by property tax rebate and governmental cash grants which the landlord is mandated by law to pass on to the tenant through a two-month rental waiver (or a one-month waiver for the latter group). For tenants who have been substantially affected by COVID-19, 152 they are entitled to additional rental relief (2 months’ waiver of base rental for commercial properties and 1 month’s waiver of base rental for industrial/office properties) which is to be borne by the landlord. Where this additional rental relief entitlement is triggered, this would result in lower rental income for the trust. To avoid unnecessary misunderstanding and tense relations, this information must be communicated to beneficiaries clearly and timeously. Second, many trusts hold controlling shareholding in companies. These companies may be badly hit by the global pandemic, thereby resulting in the depreciation of share value and affecting dividend distribution. At common law, the trustee has the Bartlett duty to supervise and intervene in corporate management. However, many trust deeds modify the Bartlett duty through anti-Bartlett clauses – these are provisions that generally excuse the trustees from their Bartlett duty, save in very extreme circumstances, such as where the trustee has actual knowledge of dishonesty. Trustees should review the terms of the trust deed carefully to determine their precise scope of duties and seek advice on the validity of duty modification clauses. In the recent case of Zhang Hong Li v DBS Bank (Hong Kong) Ltd [2019] HKCFA 45, the Hong Kong Court of Final Appeal, on applying Jersey law, upheld the validity of an extreme form of anti-Bartlett provision that: did not require the trustee to supervise and interfere with corporate management, unless the trustee has actual knowledge of dishonesty; did not require the trustee to obtain information regarding corporate affairs or to verify the accuracy of the information it received; allowed the trustee to simply assume that the corporate affairs were being carried out competently. Trustees should not assume that the decision will necessarily be followed in other jurisdictions. Further, the wording of anti-Bartlett provisions differ: the specific clause in Zhang v DBS was very exceptional. Finally, trustees should take note that they may come by information relating to underlying corporate affairs through news channels which may trigger their duty to intervene.

151 For more details on the rental relief framework, see Ministry of Law Singapore, ‘New Rental Relief Framework for SMEs’ (3 June 2020) <https://www.mlaw.gov.sg/news/press-releases/new-rental-relief-framework-forsmes>. 152 For eligibility criteria for additional rental relief, see Ministry of Law Singapore, ‘Introduction’ <https://www.mlaw.gov.sg/covid19-relief/rental-relief-framework-for-smes#eligibility>.

Â In anticipation of potential breach of trust litigation, trustees should also review the trust deed to see if it contains any exemption clauses and consider the validity and scope of operation of these clauses.

Uncertainty relating to day-to-day administration Even though Singapore has exited from the circuit breaker and is now in Phase 2 of reopening, individuals may be put on quarantine or stay-home orders, hospitalized for medical treatment, or even stranded overseas. Further, large-scale gatherings are still prohibited. As such, in-person meetings may be difficult or even impossible to carry out. Alternative arrangements for meetings of unitholders of relevant unit trusts and business trusts have been made through legislation (COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings for Companies, Variable Capital Companies, Business Trusts, Unit Trusts and Debenture Holders) Order 2020). Trustees of other types of trusts which are not covered by legislation will need to consider alternative arrangements, if meetings are necessary and cannot be postponed. But it is not just about meetings. If a serious illness befalls a trustee, he may become incapacitated to act. As a matter of general principle, trustees are to act unanimously. As such, it would be prudent for trustees to make plans for such contingencies. Pursuant to s 27 of the Trustees Act, individual trustees may execute powers of attorney for the delegation of their functions. The maximum period of delegation permitted under s 27 is 18 months, although the power of attorney may prescribe for a shorter period. The trustee who has delegated his functions remains liable for the acts and defaults of the donee. If any event of incapacity (or even death) is to strike a trustee unexpectedly and no power of attorney has been put in place, the remaining trustees may need to consider appointing a replacement trustee. They should first look to the trust deed to determine which person has the power of appointment and in what circumstances the appointment may be made. Where the trust deed does not provide for the power of appointment in the circumstances which the remaining trustees find themselves, they will have to consider an appointment made pursuant to s 37 or s 42 of the Trustees Act.

6. Private liability for public health Jerrold Soh Tsin Howe153 As at this writing, COVID-19 continues to spread around the world. Most disease transmissions, one hopes, are unintentional. But could one nonetheless be liable for unintentionally, yet carelessly, transmitting the disease? If so, when would liability arise, and how wide may its scope be? If X transmits the disease to Y who in turn transmits it to Z, can Z claim against X? If not, why should liability escape one who carelessly spreads a deadly and highly contagious virus when courts have historically found liability for more innocuous harms?154 This short essay discusses how private liability might complement public regulation in the battle against COVID-19. It first examines the case for establishing private liability for public health. It then explores causes of action that victims may bring against disease transmitters and discusses legal issues arising from such claims. The essay shall draw primarily from Singapore and English tort law,155 and focus most on COVID-19, though certain parts of the analysis may generalize to other Commonwealth jurisdictions as well as other communicable diseases.

The case for transmission liability156 Nearly without exception, countries have self-imposed economically and emotionally painful lockdowns to contain the spread of COVID-19. Only some have succeeded, for now. Like speed limits, lockdowns are a kind of ex ante regulation — imposed to prevent harm by through mandating certain precautions (e.g. masks) and/or outlawing certain risky activities. 157 As regulations go, lockdowns belong with the most extreme. All activities, unless essential, are prohibited. Assistant Professor of Law, Singapore Management University. I thank Ferrell Chee for excellent research assistance. 154 Recall that Donoghue was claiming for ‘shock and severe gastro-enteritis’: Donoghue v Stevenson [1932] AC 562, at p 562. 155 For an American tort law perspective see Shelly Simana, ‘Coronavirus Negligence: Liability for COVID-19 Transmission’ (Harvard Law Petrie-Flom Centre, 14 April 2020) <https://blog.petrieflom.law.harvard.edu/2020/04/14/coronavirus-negligence-liability-for-COVID-19transmission/>. 156 This essay adopts an economic, instrumentalist view taking as given that an important, common goal is to contain COVID-19. This is to engage with policymakers who are presumably relying more on cost-benefit analyses than Kantian ethics to make decisions on pandemic control. That is not to deem deontic concerns irrelevant. Every life that COVID-19 claims is an immeasurable and painful loss, and taken to extremes a purely instrumentalist approach may yield a morally contestable, non-zero solution as the ‘efficient’ level of COVID-19 deaths, all things (especially the economic cost of a lockdown) considered. The law and economics presented below, targeted at generalist readers, is necessarily brief and somewhat idealized. It bears emphasis that the economic assumptions relied on are not universal truths whether across time or space, and are subject to empirical confirmation. For a more sophisticated treatment see generally Jennifer Arlen (ed), Research Handbook on the Economics of Torts (Edward Elgar Publishing Limited, 2013). 157 The distinction between regulation and liability is trite law and economics. See Steven Shavell, ‘Liability for Harm versus Regulation of Safety’ (1984) 13 The Journal of Legal Studies 357. 153

The main problem with regulation is that it requires significant public resources. The state must first incur information costs to determine the ‘right’ precautions (activities) to mandate (prohibit).158 An under-resourced state may set too strict a lockdown for too long or, rather more dangerously, re-open too much too quickly. As much remains unknown about COVID-19, the level and types of activities that should be most or least regulated, and the right duration of any lockdown, is difficult to pin down. The state must also incur enforcement costs to ensure regulatory compliance.159 The extent of such costs will vary from state to state. Some have found even a blunt instruction to ‘stay home’ difficult to enforce. In large countries, preventing all social gatherings is unfeasible, especially if country leaders flout the rules themselves. Even smaller countries known for effective regulation have had to prosecute non-compliers for such curious offences as ‘unlawfully meeting a friend’. Weakly-enforced regulation does not alter the private citizen’s incentive to deviate enough to effectively reduce harm. The Holmesian bad person cares not for fines they are unlikely to pay, nor for the health risks they impose upon others. The shortfalls of ex ante regulation may be addressed by ex post liability.160 A speeding driver who carelessly knocks down a pedestrian does not merely risk getting their licence revoked. They are also liable for damages. The victim, not the state, incurs the cost of prosecuting the claim.161 Damage caused falls to be internalized by the damage-causer. The prospect of liability for harm thus adds a second deterrence to deviators proportional to the self-perceived risks they pose to society. Relative to a blunt regulatory edict that ‘no one may drive’, liability may be better calibrated, particular since it need not be determined a priori, but only after the facts of the case have materialised.162 Drivers who think themselves risky have the strongest additional incentive to stay home. For COVID-19, this encourages those with the highest transmission risks to self-quarantine. Liability incentivises socially-desirable behaviour through the market mechanism, increasing the effectiveness, and reducing the public costs, of regulation. Liability may further be imposed on persons other than disease-transmitting individuals. Many jurisdictions have, for example, promulgated regulations compelling employers and businesses to enforce safe distancing measures. The liability analogue would be permitting employees and consumers who contract the disease at workplaces or shops to seek damages against these On the information costs of regulation see ibid at pp 359–360. 159 See Steven Shavell, ‘A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation’ (2013) 42(2) The Journal of Legal Studies 275. 160 For an analysis of the interplay see Shavell, ‘Liability for Harm versus Regulation of Safety’ (n 157). 161 If successful, the victim may of course recover some of these costs from the driver. 162 Shavell, ‘Liability for Harm versus Regulation of Safety’ (n 157); Shavell, ‘A Fundamental Enforcement Cost Advantage of the Negligence Rule over Regulation’ (n 159). 158

corporations. The efficiency arguments above apply mutatis mutandis. The prospect of liability incentivises businesses to follow, and possibly exceed, pandemic regulations. Corporations may indeed be in better positions to implement and coordinate pandemic precaution. This is a not simply an appeal to deep pockets —the pandemic may soon reveal many corporate pockets to be ridden with holes. Rather, corporations may be able to take precautions at lower unit costs than individuals, e.g., by bulk producing/purchasing masks. Corporate liability may also overcome collective action problems.163 Masks, for instance, present classic free-rider problems because their primary function is protecting others.164 If everyone else wears a mask, one may reap all the benefits, and avoid all the inconvenience and supposed threats to one’s liberty, even if one does not. If climate change is any indication, the logical conclusion of free-ridership in the absence of concerted efforts by coordinating bodies is complete and utter inaction. Incentivising employers and businesses to in turn mandate individual precaution alleviates this. An employee who could be fired (during a pandemic, no less) for non-compliance with company policy has greater incentives to mask up. Lest this be unclear, the present argument is that liability may complement regulation for pandemic control. Liability alone is not enough because markets famously fail. One’s perceived risks seldom line up with one’s actual risks. Like bad driving, COVID-19 can be largely asymptomatic.165 One looks and feels entirely fine until one gets behind the wheel. The efficiency of liability alone is further limited by the difficulty with observing each individual’s risk. Were this otherwise, low-risk individuals could pay high-risk individuals an amount commensurate with the latter’s private value of their (outside) activities to stay home.166 Thus the highest risks are managed, the most valued activities persist, and as Coase noted private bargaining would lead to a socially-efficient outcome. This is, of course, not currently possible with COVID-19, though better testing methods may change this.

163 For an examination of collective action and free rider problems in tort see Michael Faure and Franziska Weber, ‘Dispersed Losses in Tort Law - An Economic Analysis’ (2015) 6(2) JETL 163. 164 Jeremy Howard, ‘Masks help stop the spread of coronavirus – the science is simple and I’m one of 100 experts urging governors to require public mask-wearing’ (The Conversation, 14 May 2020) <https://theconversation.com/masks-help-stop-the-spread-of-coronavirus-the-science-is-simple-and-im-one-of100-experts-urging-governors-to-require-public-mask-wearing-138507>; Jeremy Howard et. al., ‘Face Masks Against COVID-19: An Evidence Review’ (Preprints, 12 April 2020) <https://www.preprints.org/manuscript/202004.0203/v1>. 165 The WHO recently acknowledged that asymptomatic transmissions could occur, though it also suggested that asymptomatics are less likely to transmit: see World Health Organization, ‘Transmission of COVID-19 by asymptomatic cases’ (11 June 2020) <http://www.emro.who.int/health-topics/corona-virus/transmission-ofCOVID-19-by-asymptomatic-cases.html>. 166 It is assumed for simplicity that the low risk group values the reduced risks more than the high risk group values their activity, and vice versa.

Another problem with liability is the judgment-proof defendant.167 Defendants too elusive, powerful, or insolvent to be made to honour an award of damages simply need not care — even if paper judgments against them can be obtained ex parte. Since COVID-19 permeates all levels of the social hierarchy, however, judgment-proof defendants are presumably the exception and not the norm. The more pressing question is therefore whether liability judgments may be obtained in the first place.

Is there liability for COVID‐19 transmission? Intentional transmission by individuals

Let us begin from the strongest case: intentional transmission. X, intending to transmit disease to Y, engages in social contact with Y, and Y comes down with the disease thereafter. Such contact may take various forms, ranging by intensity from mere conversation and social touching to targeted coughing and sexual intercourse. Where physical contact can be proven, Y may claim a battery. Battery, to recall, is intentional and unjustified direct physical contact. “Direct” does not require actual bodily touching. Mere contact with X’s virulent droplets could suffice.168 Y may plausibly prove this circumstantially by showing that X was the only COVID-19 positive person they recently interacted with. Of course, the more intense their interaction had been, the easier Y’s case would be. On intention, Y need not prove that X intended to transmit the disease, only that X intended the contact, and this is generally not difficult to show. This does call into question whether X may still be liable for battery, as X did not know they had the disease, but did intend the contact. Holding X liable for battery here appears onerous, and this situation seems better dealt with by principles of negligence, as discussed below. Courts may thus be minded to find such unknowing contact justified — that is, “generally acceptable in the ordinary conduct of daily life”.169 Knowing defendants will probably not enjoy the same sympathy. They may argue that any physical contact was likewise consensual, particularly since Y could, assuming away duress and other coercion, have exited or refused the contact. But such ‘consent’ would not have been fully informed unless Y knew specifically about X’s COVID-19 167 Steven Shavell, ‘The Judgment Proof Problem’ (1986) 6 International Review of Law and Economics 45 <http://www.law.harvard.edu/faculty/shavell/pdf/6_Inter_Rev_Law_Econ_45.pdf>. Note that Shavell’s original definition of “judgment proof” includes only defendants unable (but not powerfully unwilling) to pay. 168 Spitting in another’s face is battery: R v Cotesworth (1704) 6 Mod Rep 172. If X spits on a surface which Y later touches, there is an arguable case. Like the defendant in Scott v Shepherd (1773) 2 Wm Bl 892; 96 ER 525, X has set in motion a (risky) chain of events that culminates in physical contact with Y. 169 Wainwright v Home Office [2004] 2 AC 406 at [9].

risks. For example, if X had made clear that they had recently been travelling, or if X had displayed flu-like symptoms throughout their interaction. To knowingly attempt to transmit disease must fall outside the bounds of ordinary contact, particularly in the new ordinary that COVID-19 has engendered. In the context of another deadly virus — HIV — one who knows or has reason to believe that they are infected is statutorily obliged to inform others of that risk before sex; any consent obtain without disclosure is invalid.170 It is wellestablished in American tort law that knowingly transmitting a sexually-transmitted disease is battery.171 While a battery case for intentional transmission appears straightforward, the damages quantum remains a thorny issue. Though battery is actionable per se, few victims will be happy with nominal damages. For substantial damages, Y must be able to rule out alternative channels through which Y may have contracted the disease. Alternatively, Y might seek to prove that X materially increased the severity of Y’s disease. These causation issues are more conveniently discussed alongside negligence liability. We might briefly consider other intentional torts before proceeding. Assault is possible if X merely threatens to cough upon Y, but in the absence of physical contact Y should not, on the prevalent droplets theory of COVID-19 transmission,172 have been infected by X. This would plainly be an ordinary assault case. There is also a suggestion in the Singapore Halsbury’s that the rule in Wilkinson v Downtown ‘can extend to intentional infection of another person with disease’.173 No authority or explanation is provided for this proposition other than a footnote to s 23(1) of the Infectious Diseases Act, which sets out the obligation to warn of HIV risks. Liability under this tort, however, has traditionally focused on the malicious communication of words, not diseases.174 It is unclear if courts would extend the tort to accommodate COVID-19 claims.175 Infectious Diseases Act (Cap 137, 2003 Rev Ed) s 23(1). 171 Leleux v United States 178 F.3d 750 (5th Cir, 1999) at [13]. For a list of other American cases which have referenced this see Theresa Porter, ‘Cause of Action for Negligent Transmission of Contagious or Infectious Disease (May 2020 Update)’ in vol 22 Causes of Action First Series 1 (Clark Boardman Callaghan 1990), section 13; Lawrence O Gostin and James G Jr Hodge, ‘Piercing the Veil of Secrecy in HIV/AIDS and Other Sexually Transmitted Diseases: Theories of Privacy and Disclosure in Partner Notification HIV Law and Policy: Ensuring Gender-Equitable Reform’ (1998) 5(9) Duke Journal Gender Law & Policy 9, 150. 172 Centres for Disease Control and Prevention, ‘How COVID-19 Spreads’ (16 June 2020) <https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Ftransmission.html>. 173 Halsbury’s Laws of Singapore vol 18 (LexisNexis, 2019 Reissue) at [240.464]. 174 Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR(R) 674 at [138]; Rhodes v OPO [2015] AC 219 at [74]. 175 But cf the American approach which acknowledges causes of action for intentionally transmitting venereal diseases under either (1) a general prima facie tort, (2) an action for intentional infliction of emotional distress, or (3) fraud, deceit and misrepresentation: Doe v. Roe, 598 N.Y.S.2d 678 (1993) at p 680. Other than (3), there are no directly analogous torts in English law. The elements a so-called ‘prima facie tort’, for instance, are: (1) the infliction of intentional harm; (2) solely to injure plaintiff without any excuse or justification; (3) resulting in 170

Negligent transmission by individuals If X accidentally transmits COVID-19 to Y, can Y claim against X?176 The elements of a hypothetical negligence suit will be discussed in seriatim.

Duty It is uncontroversial, even in English law, that duties of care can arise in respect of physical respiratory diseases like COVID-19.177 Since COVID-19 transmission occurs in physical proximity, it is presumably not difficult for prima facie duties to arise. Policy concerns, particularly indeterminate liability, may militate against duty. But even in the most innocuous case — where X is reasonably ignorant of an infection178 — it remains conceivable for X to be under a duty to take reasonable care not to transmit COVID-19 to their contacts. This concededly imposes duties on virtually everyone whenever they are in close proximity with others. But scope alone does not preclude duties of care: whenever I am near others I owe a duty not to accidentally punch them. The more X knows or has reason to suspect themselves infected, the easier it will be to find a duty owed.

Breach Liability for the reasonably ignorant is better left to be excluded at breach. The crux of the inquiry, as always, lies in establishing what a reasonable person in X’s position would have done considering the risk and magnitude of possible harm against the costs of care. Though debate on death rates rages on, it is undeniable that COVID-19 is highly infectious and potentially debilitating, stacking the breach calculus in favour of serious precaution. Nonetheless, tort law makes allowances for an individual’s ‘position’. If true that asymptomatic carriers are less likely to transmit the disease,179 the standard expected would accordingly be lower. Contexts which necessitate physical proximity, such as contact sports, warrant special consideration.180 special economic damage which must be specifically pleaded; (4) by an act or series of acts that would otherwise be unlawful: ibid. 176 As with intentional transmission, negligent transmission is an acknowledged cause of action in American tort law. See the sources listed in n 163 above. 177 See e.g. the wealth of cases on pneumoconiosis and mesothelioma, some of which are discussed below. 178 For instance, when X is entirely asymptomatic and has not been in contact with any known clusters. 179 World Health Organization, ‘Transmission of COVID-19 by asymptomatic cases’ (11 June 2020) <http://www.emro.who.int/health-topics/corona-virus/transmission-of-COVID-19-by-asymptomaticcases.html>. 180 On HIV transmissions liability in sports see Roger S Magnusson and Hayden Opie, ‘HIV and Hepatitis in Sport: A Legal Framework for Resolving Hard Cases’ (1994) 20(2) Monash University Law Review 214, at pp 262–267.

X’s knowledge is also relevant to their ‘position’. What is ‘reasonable’ when one knows or ought to suspect an infection is logically differs from when one doesn’t. In the former case, one is welladvised to stay home and avoid all social contact — not throw a party.181 But even the latter is not a licence to party with reckless abandon. Basic precautions such as masks and distancing may still be reasonably expected, given the lethality of COVID-19. What qualifies as ‘basic’ will however differ from country to country, having become a politicized question in some. Even if one does not actually know, one might be reasonably expected to find out, particularly after developing flu-like symptoms or being notified of prior contact with a positive case. There are thus two non-mutually exclusive ways in which one might be liable: failing to reasonably discover an infection (e.g. by seeing a doctor), and failing to reasonably avoid social contact (e.g. by self-quarantining after developing symptoms). The exact standard of care is not something this theoretical essay can or should formulate. It will fall to be calibrated by the courts when eventually faced with such claims. Or, perhaps better still, by legislators after careful cost-benefit balancing. Courts may, as always, take reference from prevailing regulatory, industry, and scientific standards. But regulatory and liability standards are seldom carbon copies of one another. Indeed the two should differ because of the relative strengths of regulation versus liability, as explained above. Regulation tends to be blunt and generalized, whereas liability can be tailored to individual cases. Just as traffic courts emphasize speeding is not per se negligent because specific road conditions must be considered, 182 the circumstances of the specific transmission will have to be accounted for. Detaching the two further allows courts to come to the aid of regulatory standards set too high or too low.

Damages Thus, a prima facie case of negligence should, depending on specific case facts, be possible. But, as with battery, victims may have significant problems proving damage. Since COVID-19 is physical harm, there should be no issue with remoteness. The main stumbling block is causation, which is always problematic for diseases, particularly new ones.183 ‘But for’ causation is virtually impossible to prove. Given COVID-19’s incubation period, Y would likely have had contact with many others alongside/after X (lesson I: stay home for a better shot at compensation). Y would 181 Cf Gilad Edelman, ‘he Latest Covid Party Story Gets a Twist’ (WIRED, 14 July 2020) <https://www.wired.com/story/the-latest-covid-party-story-gets-a-twist/> 182 Tong Khing Kia v Yeo Kong Boon [1990] 2 SLR(R) 792 at [15]. See also Thorben Langvad Linneberg v Leong Mei Kuen [2013] 1 SLR 207 at [34]. 183 For an American practitioner’s view see Daniel P. Waxman, ‘Identifying and Mitigating the Product Liability Risks in the U.S. Posed by SARS-CoV-2/COVID-19’ (Bryan Cave Leighton Paisner, 26 March 2020) <https://www.bclplaw.com/en-US/insights/identifying-and-mitigating-the-product-liability-risks-in-the-usposed-by-sars-cov-2COVID-19.html>.

have to exclude all other sources of disease, for instance, by showing that every subsequent contact was COVID-negative at the material time (lesson II: trace your contacts). The presence of alternative non-negligent sources raises the issue in Bonnington Castings v Wardlaw,184 where the plaintiff was simultaneously exposed to pneumoconiosis-causing dust from a negligent and nonnegligent source. Alternative negligent sources would, despite giving Y another defendant to go after, still raise the Fairchild v Glenhaven Funeral Services problem with attributing but-for causation.185 The success of a negligent transmission suit hinges on whether the court accepts alternative tests for COVID-19 causation. This decision, as Lord Denning provocatively suggested, may ultimately be a ‘question of policy’.186 Suppose for now that the courts accept the case for liability above and are minded to do this. Would the proper alternative test be a material increase in risk, in damage, or something sui generis? On existing principle, this turns on whether COVID-19 is a trigger or cumulative disease. That is, is COVID-19 caused by a ‘single, uniform, trigger’ agent that does not thereafter affect disease severity, or does virus exposure operate ‘cumulatively first to cause the disease and then to progress [it]’?187 This essay cannot, of course, resolve COVID-19’s pathogenesis. From what may be gathered, this remains a matter of scientific uncertainty in itself. On one theory, the accumulation of the SARS-CoV-2 virus in the body ‘triggers’ a dysfunctional immune response that inflames and damages the lungs, after which ‘it remains controversial whether virus persistence is necessary to drive the ongoing damage’. 188 Empirical evidence on whether those exposed to higher viral loads suffer more severe infections appears mixed.189 Assuming that virus persistence is unnecessary, COVID-19 may indeed challenge the trigger-cumulative dichotomy. Cumulative exposure to the virus is necessary to cross a trigger point that significantly worsens the disease, but further exposure thereafter would not worsen it. How would the courts deal with this meta-uncertainty over the very causal mechanism of a disease? By the time COVID-19 claims reach the courts, scientists may of course have resolved the uncertainty. Until such time, if cases like Bonnington, Fairchild, and Sienkiewicz are understood broadly to support the principle that plaintiffs in general, and not just industrial employees or 184 Bonnington Castings v Wardlaw [1956] AC 613. 185 Fairchild v Glenhaven Funeral Services [2003] 1 AC 32. 186 Lamb v Camden LBC [1981] QB 625. 187 Sienkiewicz v Greif (UK) Ltd [2010] QB 370 at [12]–[16]. 188 Tay, M.Z., Poh, C.M., Rénia, L. et al. ‘The Trinity of COVID-19: Immunity, Inflammation and Intervention’ (2020) 20 Nature Reviews Immunology 6, 363, <https://www.nature.com/articles/s41577-020-0311-8#citeas> at pp 365–67. 189 Sara Kayat, ‘Doctor's Note: Does a high viral load make coronavirus worse?’ (Al Jazeera, 29 May 2020) <https://www.aljazeera.com/indepth/features/doctor-note-high-viral-load-coronavirus-worse200515075609542.html>; Damian McNamara, ‘Unexpected: Higher Viral Loads Seen in Less Severe COVID19’ (Medscape, 17 July 2020) <https://www.medscape.com/viewarticle/934147>; Chuck Dinerstein, ‘COVID19: Viral Load And The Mucociliary Stairway?’ (American Council on Science and Health, 20 July 2020) <https://www.acsh.org/news/2020/07/20/COVID-19-viral-load-and-mucociliary-stairway-14917>.

mesothelioma victims, may be given the benefit of the doubt in the face of scientific uncertainty, then the greater uncertainty surrounding COVID-19 should persuade courts to be equally if not more receptive to alternative causation tests. Even if established alternative tests cannot readily apply, since ‘the concept of causation is not based on logic or philosophy’,190 a recovery-leaning court can always fashion a new test for COVID-19 specifically. Whether the legislature is better-placed to decide this, however, is a question worth asking. The historical cases, particularly those involving mesothelioma, are famously intertwined with considerations of industrial and legal policy which may not apply to COVID-19.191 COVID-19 would also raise a host of other pressing policy questions that could sway the court towards denying recovery as well. For instance, governments may by then have set up statutory compensation pathways. In short, when COVID-19 causation can be proven is at best uncertain. This concern notably applies to all causes of tortious action explored in this essay.

Defences X could argue that Y consented to the risks of transmission by agreeing to socially contact X. As earlier explained for battery, this would probably fail unless X had made the risks clear before the contact. A more promising defence is contributory negligence, which might be established where Y should reasonably have known of X’s infection and excused themselves (e.g. if X persistently displayed flu-like symptoms throughout their contact). In extreme cases, consent may be found.

Claims by secondary victims

If Y in turn transmits the disease to Z, would X be liable in negligence? If so, this would widen the scope of X’s duty and liability significantly. While the courts’ analysis of such indirect claims would differ at every element, three issues stand out. First, duty is more difficult to establish. X would not have had physical proximity to Z (if there was, Z is better off claiming direct negligence). Z must rely on a relational argument to establish indirect proximity. For instance, if Z is Y’s spouse. This argument, to be clear, could succeed. Broadly speaking, X could reasonably have foreseen that Y’s close contacts would be harmed should X carelessly transmit the disease to Y. If relational duties may arise in respect of psychiatric192 and

190 McGhee v National Coal Board [1973] WLR 1 at 4–5 (per Lord Reed). 191 The UKHL’s decision in Barker v Corus (UK) plc [2006] 2 AC 572 was effectively overruled by the Compensation Act 2006, s 3, in respect of mesothelioma claims only. On this history see Sienkiewicz (n 187) at [1]. 192 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

economic harm, 193 then it arguably could also arise for physical harm. 194 But the spectre of indeterminate liability hovers menacingly over such claims. Even if the courts were to accept them, the scope of duty would presumably be restricted to very close relations. Second, factual causation would be more difficult to prove. By the time Z discovers their infection, more time would have passed. More social contacts would have been made by both Y and Z. But for causation would require excluding both Y’s and Z’s contacts as alternative sources. These increased difficulties apply, though possibly with less force, to alternative causation tests. But given the policy concerns above, courts may be less willing to relax the rules of causation for Z. Third, even if factual causation succeeds, Y’s subsequent conduct could break the chain. This is especially if Y were themselves negligent in transmitting the disease to Z, or if Z was contributorily negligent.195

Claims against corporations Corporations might be evil,196 but one evil they cannot commit is physically spreading COVID-19. Their officers and employees, however, can. A corporation might thus be subject to vicarious liability should their employees tortiously transmit the disease in a manner “so closely connected with acts the employee was authorised to do that … it may fairly and properly be regarded as done by the employee while acting in the ordinary course of [their] employment”.197 Vicarious liability is particularly conceivable, though not a given, for an employee’s whose job scope puts them in a position to commit the tort. The clearest instance is if X is employed to administer COVID-19 tests, but carelessly or intentionally uses a virus-contaminated swab on Y. Another less clear example would be if X’s employment involves close, sustained social contact. Salespeople who make home calls are one example. So too are doctors and nurses, though the healthcare setting warrants special consideration. Although delivery personnel go door-to-door, contact is more transient. Delivery personnel raise a separate, difficult question as many are now 193 See the SGCA’s discussion of English and Australian authority on this point in NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd [2018] SGCA 41 at [58]–[79]. 194 Note that these categories are a matter of English law. In Singapore, the inquiry would simply revolve around proximity. On the departure from the categorical exclusion of pure economic loss see Spandeck Engineering v DSTA [2007] 4 SLR(R) 100 at [69]; NTUC Foodfare Co-operative Ltd v SIA Engineering Company Limited [2018] SGCA 41 at [59]. On the departure from the primary-secondary victim dichotomy in psychiatric harm see Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR(R) 674. 195 Third-party, as well as the plaintiff’s own, negligence are likely supervening events: McKew v Holland [1969] 3 All ER 1621; Wright v Lodge [1993] 4 All ER 299; PlanAssure PAC v Gaelic Inns Pte Ltd [2007] 4 SLR(R) 513. 196 Douglas Litowitz, ‘Are Corporations Evil?’ (2004) 58 University of Miami Law Review 811. 197 WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 at [25]. See also Ng Huat Seng v Munib Mohammad Madni [2017] 2 SLR 1074.

either employed or independently-contracted by app platforms.198 Fortunately, there seems to be few reports of COVID-19 spreading through them — at least in Singapore, and for now. As with causation, vicarious liability is intertwined with policy. 199 Indeed policy concerns may become even more complex when corporations are involved, thus raising questions of economic allocation, business costs, and enterprise risk. The employment and activity types at which courts might draw the vicarious liability line is thus difficult to determine a priori. Corporations may also be the target of direct negligence claims from consumers. Duties may in particular be owed by commercial (mall) occupiers to customers. The occupier is in a position to control COVID-19 transmission risks within their premises, especially by limiting who and how many may enter.200 Of course, the standard of a reasonable corporation remains to be set. Masks and social distancing are probably a given. Contexts like contact sports and healthcare implicate higher transmission risks and warrant greater care. Causation will be trickier to establish relative to individual transmission cases: victims must first pinpoint where they contracted the disease from, before explaining how the occupier’s unreasonable behaviour materially contributed to this. Aggressive contact tracing may alleviate victims’ difficulties here, perhaps to the chagrin of some businesses. This indeed reveals how regulation (e.g. mandating that all commercial premises enforce check-ins) may complement liability. Notably, corporate liability for transmissions within well-delineated physical areas with known occupant lists, such as airplanes, nursing homes, and prisons, may be significantly easier to establish.201 Another demographic that corporations owe duties to is their employees. Thus retail occupiers who carelessly permit an outbreak to occur on premises could face claims from both employees and customers. It is well-established in both tort law and statute that employers are to provide safe working environments.202 Apart from retail settings, employees who contract the disease at the This question has famously reached the U.S. and UK courts, but not Singapore’s. For an overview see Ariene Reis and Vikram Chand, ‘Uber Drivers: Employees or Independent Contractors?’ (Kluwer International Tax Blog, 3 April 2020) <http://kluwertaxblog.com/2020/04/03/uber-drivers-employees-or-independentcontractors/?doing_wp_cron=1595323269.4006099700927734375000>. 199 See David Tan, ‘For Judges Rush In Where Angels Fear To Tread: “Insofar as it is Fair, Just and Reasonable” to Impose Vicarious Liability’ (2013) 21 Torts Law Journal 43–58. 200 On the centrality of control in an occupier’s negligence duty see See Toh Siew Kee v Ho Ah Lam Ferrocement (Pte) Ltd [2013] 3 SLR 284. 201 There is a wealth of American literature arguing both for and against airline liability for disease transmission aboard aircrafts. See e.g. Ruwantissa Abeyratne, ‘International Responsibility in Preventing the Spread of Communicable Diseases through Air Carriage - The SARS Crisis’ (2002–2003) 30(1) Transportation Law Journal 53; Kathryn Brown, Comment, ‘Please Expect Turbulence: Liability for Communicable Disease Transmission During Air Travel’ (2017) 66(4) DePaul Law Review 1081. 202 Chandran a/l Subbiah v Dockers Marine Pte Ltd [2009] 3 SLR(R) 995 at [13]. 198

office may have a claim against the employer. The crux of the issue, other than similar questions around causation we need not revisit, is what ‘reasonable’ care entails. Basic precautions aside, when might it be unreasonable to ask employees to work from the office? Precaution costs here depend on the nature of the job. In some industries, remote working entails higher social and economic costs. For the education sector, forced remote teaching may deprive an entire generation of conventional schooling. 203 Individual employees’ transmission risk and disease vulnerability profiles would be relevant to the expected harm. There is a final, somewhat contrived path to suing a corporation. This is to attribute X’s tort to the corporation, as per the principle in Moore Stephens v Stone Rolls Limited,204 by arguing that X embodies the directing mind and will of the corporation. But this path, which is related to though distinct from the corporate law concept of lifting the corporate veil, lends itself better to theoretical meditation than practical success,205 and at any rate falls beyond this essay’s scope.

Conclusion This essay examined how far tortious liability for the transmission of COVID-19 should and does exist, particularly under Singapore law. While most existing measures have taken the form of ex ante public regulation, the economic case for complementary ex post private liability is clear. By addressing known shortfalls of regulation, (corporate) liability can incentivize more calibrated and cost-efficient precaution/activity levels. However, while establishing a prima facie case for intentional as well as negligent transmission appears relatively straightforward, questions surrounding the causation of damages present obvious obstacles. The same applies to potential corporate (vicarious) liability claims. Thus, it may currently be prohibitively costly for victims to pursue otherwise meritorious disease transmission claims. If judgments cannot be obtained, all defendants are as good as judgment-proof, and the complementary deterrent effect of liability is obscured. As the legal epidemic looms,206 courts and policymakers may consider clarifying the legal uncertainties raised by potential COVID-19 claims.

203 Though the social effects thereof, for better or worse, are difficult to measure. Some students (and teachers) may well thrive in an online environment. 204 Moore Stephens v Stone Rolls Limited [2009] 1 AC 1391. 205 On the practical unlikelihood of lifting the corporate veil see Walter Woon, ‘The Teaching of Company Law Reflections on Past and Future’ (2017) 2017 Sing J Legal Stud 258, at p 261. 206 VK Rajah and Goh Yihan, ‘The COVID-19 Pandemic and the Imminent Legal Epidemic’ (The Straits Times, 7 May 2020) <https://www.straitstimes.com/opinion/the-COVID-19-pandemic-and-the-imminent-legalepidemic>.

7. “In case of emergency, break contract”? The case for a unified regime for changed circumstances in Singapore contract law Nicholas Liu207 Introduction It has been accurately observed that the incremental nature of the common law’s development makes it inherently unsuited to dealing with unprecedented crises.208 This is particularly true of what I shall refer to (for convenience) as the law of changed circumstances, which in the common law regime comprises the doctrine of frustration and the operation of force majeure clauses, but could potentially encompass other doctrines and issues as well.209 I suggest that in this area, the flaws of the common law run deeper and broader than its inability to respond quickly to unprecedented crises. Rather, from a lay user’s point of view, the common law on its own or layered with statute is necessarily unsatisfactory for dealing with changed circumstances – whether unprecedented or mundane – due to the uncertainty it creates in a context where certainty is vital. Further, the courts are poorly placed to implement the root and branch reform that is needed to provide certainty; what is needed is a unified statutory regime dealing with changed circumstances, not one cobbled together from disparate pieces of common law and legislation. The COVID-19 pandemic did not cause these problems. It merely brought issues of changed circumstances to the fore through their prevalence, and shone a light on the generally unsatisfactory state of the common law. This chapter is primarily exploratory and diagnostic. I begin by explaining what I mean by uncertainty and why (and when) it is a problem for the law. I then assess the degree of uncertainty surrounding the law of changed circumstances in Singapore. Finally, I outline some of the attributes that an appropriate solution to this uncertainty should have.

Legal uncertainty and its problems There are many ways of defining and categorising legal uncertainty, each valid and useful for different kinds of analysis. Scholars of dispute resolution, and of law and economics, have 207 Lecturer of Law, Singapore Management University. 208 VK Rajah and Goh Yihan, ‘The COVID-19 Pandemic and the Imminent Legal Epidemic’ (The Straits Times, 7 May 2020) <https://www.straitstimes.com/opinion/the-COVID-19-pandemic-and-the-imminent-legalepidemic>. 209 Such as the doctrine of hardship or imprévision in French law, which allows for parties’ obligations to be adjusted by the court.

developed particularly sophisticated frameworks, with which I claim no expertise.210 For present purposes, I use the term in a broad and common sense way: it is a state of doubt about the legal consequences of a situation. Three types, or levels, of uncertainty are especially pertinent. First, the legal standard, principle, or rule may itself be uncertain, as where there is a lacuna or an undeveloped area of the law, or contradictory lines of authority that have yet to be resolved by a jurisdiction’s apex court. For brevity’s sake, I will call this “rule uncertainty”. Second, the legal standard, principle, or rule, even if certain, may produce uncertainty in its application, as tends to be the case with highly fact-sensitive tests. The outcome may turn on shades of difference between broadly similar fact patterns, or shades of interpretation of the same fact pattern. I will call this “application uncertainty”. Third, even if the legal position is certain and its application to specific facts is (relatively) certain, there may still be subjective uncertainty in the minds of the parties. This is the case where the law, however certain and perfect it is substantively, is difficult for parties to discover or to understand. I will call this “epistemic uncertainty”, because it relates to parties’ knowledge of the state and consequences of the law. Each of these types of uncertainty makes it harder for parties to predict the outcome of a dispute. This is generally thought to be undesirable, for obvious reasons: uncertainty makes it harder for parties to order their conduct,211 makes wasteful litigation more likely,212 and so on. Less obviously, it has been argued that increased uncertainty is bad for distributive justice, as it tends to transfer wealth from parties with lower risk appetite to parties with higher risk appetite, from parties with weaker bargaining power to parties with stronger bargaining power, and from one-off players to repeat players. 213 In a regulatory context, some research suggests that uncertainty as to the standard of compliance can, in certain circumstances, reduce efficiency without necessarily resulting in greater levels of compliance.214 210 See generally Kevin E Davis, ‘The Concept of Legal Uncertainty’ (2011) <https://ssrn.com/abstract=1990813>, which includes a survey of the major works on the topic as of 2011. Some more recent works will be cited in passing in the course of this chapter. 211 As observed in Vallejo v Wheeler (1774) 1 Cowp 143, at p 153, cited in Patel v Mirza [2017] AC 467 at [113] (per Lord Toulson), among others. 212 As observed in Patel v Mirza (ibid) at [263] (per Lord Sumption), again to list one of many examples. Cf. Yuval Feldman and Shahar Lifshitz, “Behind the Veil of Legal Uncertainty” (2011) 74 Law and Contemporary Problems 133, at p 157 (arguing that ex ante uncertainty – as distinguished from ex post uncertainty, i.e. uncertainty as to the outcome after a dispute has arisen – may encourage compromise and strengthen relationships). 213 See generally Uri Weiss, “The Regressive Effect of Legal Uncertainty” (2019) Journal of Dispute Resolution 149. 214 Scott Baker and Alex Raskolnikov, “Harmful, Harmless, and Beneficial Uncertainty in Law” (2017) 46(2) The Journal of Legal Studies 281.

Uncertainty is not, however, without its virtues. It may sometimes lead to more economically efficient outcomes, because parties who are uncertain what the law is, before a dispute arises, may be more likely to act in accordance with their genuine (non-legal) interests rather than legal incentives.215 In other words, knowledge of the law’s ex post response can distort parties’ ex ante decisions in unproductive ways. In the context of the law of changed circumstances, uncertainty brings little if any benefit, because it is inherently unlikely that the law’s ex post response to changed circumstances could distort parties’ actions ex ante to any significant degree. Parties generally do not plan to find themselves in changed circumstances, and parties who do turn their minds to the question are free to bargain for and contractually provide for them in any event. On the flipside, uncertainty is especially prone to do harm in this context, because it is when circumstances have suddenly changed for the worse that parties are most likely to be under considerable pressure to act quickly, and least likely to be in the mood to spend freely on legal advice, or to absorb that advice with a clear head if they do obtain it. More than one practitioner has witnessed the mess that can result from a client going off half-cocked on the basis of “DIY” research and, sometimes, the challenge of getting them to appreciate the precariousness of their position after the fact. It would thus be to the public advantage for the shapers of the law to make this area as user-friendly as possible.

How uncertain is the current regime governing changed circumstances? In Singapore, there is a low to moderate amount of rule uncertainty in the law of changed circumstances, mostly pertaining to the doctrine of frustration (force majeure in common law being a matter of contractual interpretation, subject to the usual principles and rules). The general definition of frustration is well-established: a contract is frustrated, and thus discharged with prospective effect, “when something renders it physically or commercially impossible to be fulfilled, or transforms the obligation to perform into a radically different obligation”.216 Nonetheless, some doubt remains as to its subsidiary principles or rules. For instance, it is not entirely clear what role, if any, commercial impracticability (such as an astronomical increase in the cost of performance) can play in frustration.217 Feldman and Lifshitz (n 212), especially 137–139. 216 Adani Wilmar Ltd v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA [2002] 2 SLR(R) 216, [44]; Tham Chee Ho, “Frustration” in Andrew Phang Boon Leong (ed), The Law of Contract in Singapore (Academy Publishing 2012) ch 19, para 19.003. 217 Holcim (Singapore) Pte Ltd v Precise Development Pte Ltd [2011] 2 SLR 106, [54]; Tham (n 216), paras 19.054–19.072. 215

There is a high amount of application uncertainty. It may seem at first that this is not so, given that academic commentators, practitioners, and courts can at least agree that frustration is an exceptional doctrine that is not easily satisfied. Thus, one could very safely say that (for instance) an increase in cost of performing a contract of 20% is not going to sustain a frustration argument. But in cases where performance is sufficiently disadvantageous or difficult that a party will seriously consider whether to try to perform or to invoke frustration (in other words, the very cases that are likely to generate actual disputes), it is exceedingly difficult to predict when the line will be crossed, especially when it is not the impossibility limb but rather the radical transformation limb that is engaged. The leading local textbook observes that “there is no clear-cut rule of law that determines the question”218 and that “the difficulties … in determining whether a contract has been frustrated continue to perplex even to the present day”.219 Lord Neuberger put it more bluntly during a recent webinar on the subject, commenting that “it is very difficult – indeed, it could be positively dangerous – to give any specific advice, and it’s quite hard even to give general advice”.220 This is good and sobering (meta-)advice, but points toward a rather unsatisfactory state of law. Finally, there is a high amount of epistemic uncertainty. Simply put, Singapore’s law of changed circumstances is challenging for a layperson to grasp as it has so many moving parts and does not form a coherent whole. This can be readily seen by browsing the various notes on COVID-19 and contractual obligations put out by law firms, primarily for the benefit of laypersons.221 These notes generally convey (at least) the following general advice: a) Check your contract to see if it contains any clause providing for discharge or suspension of obligations under specified changed circumstances (i.e. a force majeure clause), and if so, whether it should be interpreted as applying to the COVID-19 pandemic. b) If there is no applicable force majeure clause, you can try to invoke the doctrine of frustration, which applies when the unforeseen change of circumstances is so great that performance is physically or commercially impossible or would be radically different from what was agreed. 218 Tham (n 216), 19.026. 219 ibid, 19.092 220 “Force Majeure: Practical Implications in Times of Crisis”, webinar organised by the ICC International Court of Arbitration, 14 July 2020 (“ICC Webinar”). 221 See e.g. Rajah & Tann Asia, ‘FAQ on COVID-19 and its Potential Impact on Contracts’ (February 2020) <https://eoasis.rajahtann.com/eoasis/lu/pdf/2020-02_FAQ_on_COVID-19_Potential_Impact.pdf> accessed 24 July 2020; Martin See and Jonathan Lim, ‘COVID-19 Impact on contractual performance’ (Dentons Rodyk, 29 April 2020) <https://dentons.rodyk.com/en/insights/alerts/2020/april/29/covid19-impact-on-contractualperformance> accessed 24 July 2020; Mahesh Rai, ‘COVID-19 – Frustration, Force Majeure, or Simply Frustrating?’ (Drew & Napier, 3 March 2020) <https://www.drewnapier.com/DrewNapier/media/DrewNapier/3Mar2020_Covid19-frustration,-ForceMajeure-or-simply-frustrating.pdf> accessed 24 July 2020. I have chosen to refer to these notes, rather than to textbooks and monographs, because the former better reflect the lay experience of the law.

c) If your frustration argument works, the consequences depend on whether the contract is of a type to which the Frustrated Contracts Act222 applies (in which case payments made prior to frustration may be claimed and losses prior to the frustrating event may be apportioned by the court) or not (in which case the court will not interfere with payments made and losses incurred prior to the frustrating event). Either way, the contract is discharged and has no prospective effect. d) You may also be able to temporarily suspend your obligations under a contract falling within specified categories by following the procedure under the COVID-19 (Temporary Measures) Act 2020, if you can show that the COVID-19 pandemic has contributed significantly to (but need not be the sole or dominant cause of) your inability to perform your obligations under the contract. e) There is no compulsory mechanism for any other adjustment of obligations, but it would be prudent to negotiate with your counter-party if such adjustment would help. Even at this much-simplified level of detail,223 the full picture is not easy to immediately take in, especially for a layperson. In contrast, based on my understanding of similar notes on the French position,224 a rough-andready summary of the French law of changed circumstances could read as follows: a) Check your contract to see if it contains any clause specifically providing for discharge or suspension of obligations under specified changed circumstances, and if so, whether it should be interpreted as applying to the COVID-19 pandemic. b) If not, Art 1218 of the Civil Code, which codifies the force majeure doctrine, provides for suspension or discharge (depending on whether the state of affairs is temporary or permanent) of the contract/contractual obligations if an external and unforeseeable event makes performance impossible. Unless your contract provides otherwise, “impossibility” is likely to be interpreted to mean physical impossibility or legal prohibition only. c) If the contract is discharged under Art 1218, both parties’ obligations are deemed to have been discharged under Articles 1351 and 1351-1.

222 Frustrated Contracts Act (Cap 115, 2014 Rev Ed), s 2. 223 For the many wrinkles left out of the common law position, see generally Tham (n 216). 224 See e.g. Ashurst, ‘COVID-19 - impact on the performance of French contracts and overview of the legal consequences’ (20 March 2020) <https://www.ashurst.com/en/news-and-insights/legal-updates/COVID-19--impact-on-the-performance-of-french-contracts-and-overview-of-the-legal-consequences/> accessed 24 July 2020; Emmanuel Gaillard et. al., ‘Force Majeure and Imprévision under French Law’ (Shearman and Sterling, 26 March 2020) <https://www.shearman.com/perspectives/2020/03/force-majeure-and-imprevision-under-frenchlaw-COVID-19> accessed 24 July 2020; Alexandre Bailly and Xavier Haranger, ‘COVID-19 and Force Majeure under French Law’ (Morgan Lewis, 6 April 2020) <https://www.morganlewis.com/pubs/COVID-19-and-forcemajeure-under-french-law-cv19-lf> accessed 24 July 2020.

d) If performance is not impossible but has become much more burdensome for you, Art 1195, which codifies the doctrine of hardship/imprévision, allows you to request renegotiation and, if renegotiation fails or is refused, to apply to court to modify or terminate the contract, unless your contract excludes this option. This could be condensed even further: If your contract tells you what happens in the circumstances at hand, follow that. If it doesn’t, the Civil Code allows you to (i) discharge the contract if performance is permanently impossible, (ii) suspend your obligations if performance is temporarily impossible, or (iii) ask the court to modify the contract if performance has become excessively burdensome for you (after first trying to reach agreement with the other party). One struggles in vain to formulate a similarly succinct and intuitive summary of the Singapore position. Simply put, the common law with its statutory overlay demands the reader take a longer walk for a shorter drink of (muddier) water. A more systematic re-ordering of the law is needed, and would be beneficial in normal times as well as in times of crisis.

How should these deficiencies in the law be addressed? Space does not permit me to present a detailed proposal here, but I will set out a few key propositions as to the attributes an adequate solution should have.

The solution should provide a wider spectrum of remedies, rather than a binary It may seem paradoxical, but I suggest that the legal toolbox be expanded to include (i) suspension of obligations 225 and (ii) a doctrine of hardship (akin to imprévision in French law) allowing modification of obligations by the court, if negotiations fail. These features multiply the possible outcomes of a dispute, and in that sense seem to increase application uncertainty. However, the more meaningful measure of application uncertainty is not the number of possible outcomes, but the variance between outcomes, 226 and by this measure, expanding the legal toolbox would increase certainty. For instance, it would admittedly be difficult to guess the exact outcome of a scenario with a 25% chance of the contract standing unaltered, a 25% chance of discharge by frustration, a 25% chance of obligations being suspended, and a 25% chance of some degree of judicial modification of the

225 This may already be possible depending on the construction of a contract; for instance, changed circumstances may mean that a condition precedent to an obligation has not been satisfied. But there is no distinct doctrine allowing suspension of obligations otherwise. 226 Weiss (n 213) at p 154–155.

obligations.227 Nonetheless, this scenario is one with relatively low variance; some sort of alteration to the contract would be a good bet, the greater uncertainty being as to degree. The parties in this scenario would better able to plan for the consequences of litigation, and, one would think, more likely to reach a compromise (since a middle-of-the-road result would be the most likely anyway). Sensible judicial modification would tend to also reduce the variance between what the parties expected going in and what they ended up getting.228 A modified bargain will often be closer to what both parties expected when they assumed all would be well, as compared to no bargain at all. (In cases where this is untrue, and parties would have considered themselves well shot of each other in that scenario, judicial modification should of course not be granted.) Further, I suspect – though I am unaware of any empirical research on this point – that if laypersons were forced to guess at how the common law deals with drastically changed circumstances in the absence of specific contractual provisions, very few would guess that a party is bound completely or not bound at all. It feels right that if impossibility releases a party from her obligations, extreme and unforeseen difficulty should allow her to seek a relaxation of those obligations. The lawyer’s retort, that this seemingly sensible compromise would undermine freedom of contract, is one that only lawyers are likely to find satisfying. If my intuition is correct, it is ironic to deprive parties of a closer substitute to their bargain on the basis of a narrow conception of freedom of contract, not shared by the persons for whose intended benefit it exists.

The solution should come from the legislature, not the judiciary Given the scope of the expansion I have proposed above, legislation would be the sensible path to reform. It is hard to disagree with Lord Neuberger’s argument, delivered during a recent webinar on force majeure and COVID-19, that judicially relaxing the requirements of frustration or creating a general doctrine of force majeure would subvert the reasonable expectations of parties who have ordered their affairs on the basis that no such doctrine exists, and erode the common law’s reputation for predictability and incremental change. 229 Such sweeping changes are more appropriately implemented by Parliament in prospective and highly public fashion.

The solution should displace the common law, not supplement it As earlier argued, though there may be substantive merits in an interlocking system of common law and statute, this invariably comes at a cost of increased epistemic uncertainty. The substance This example is an adaptation, to the frustration context, of Weiss’s comparison between a tort regime in which an award is proportional to the parties comparative negligence, and a tort regime in which the plaintiff recovers either her full loss or none: ibid. 228 As argued by JA McInnis, “Frustration and Force Majeure in Building Contracts” in Ewan McKendrick (ed), Force Majeure and Frustration of Contract (2nd ed, Lloyd’s of London 1995) ch 10, at p 213. 229 ICC Webinar, n 220. 227

of the law of changed circumstances is complicated enough without forcing users to contend with its patchwork form as well.

The solution should be permanent and general, not temporary and event-specific Though there is much to commend for the Singapore government’s recent COVID-19 measures, and especially those concerning changed circumstances and contractual obligations, these should not be reserved for crises only but should mutatis mutandis be extended generally, for two main reasons. First, this would provide fairer outcomes. The Minister for Law’s comments during the Parliamentary debates concerning the COVID-19 measures show that they were motivated not only by economic exigency (though that was certainly a dominant concern), but also by a sense of fairness to the disadvantaged parties.230 In a more mundane case of changed circumstances, the economic imperative of having a robust and responsive system in place is less pressing, as the economy can better tolerate smaller-scale failures; the concern of fairness, however, is equally applicable. If it is unfair for a party to lose, say, the entire benefit of a bargained-for rent-free period (intended to cover renovation and moving in) due to the circuit breaker,231 it seems intuitive that it would be equally unfair for that to happen due to other circumstances that are less wide-spread but similarly unforeseen, out of the party’s control, and serious in their consequences for the transaction in question. Second, it would make our legal system more crisis-resilient. It is a testament to the efficiency of Singapore’s legislative and executive branches that a regime as effective and wide-reaching as the COVID-19 measures could be implemented from scratch (and tweaked through further amendments) in mere weeks. Still, it would be ideal if future responses did not require such feats from politicians and public servants.232 If this was what the legislature and executive could produce from scratch in a short time, an even better solution would presumably have been possible with the benefit of a permanent regime dealing with changed circumstances that had been implemented and refined at (relative) leisure, into which further measures/modules could be slotted in times of emergency. Moreover, taking a long view, it cannot necessarily be assumed that parliamentary conditions will always allow for such broad emergency legislation to be pushed through so efficiently. There may See Singapore Parliamentary Debates, Official Report (5 June 2020) vol 94 (K Shanmugam, Minister for Law, speech on Second Reading of the COVID-19 (Temporary Measures) (Amendment) Bill) <https://sprs.parl.gov.sg/search/sprs3topic?reportid=bill-464> accessed 24 July 2020. 231 An example given by the Minister: ibid. 232 The extraordinary nature of the efforts involved were highlighted by the Minister in his speech: ibid. 230

come a day when legislation in Singapore – as in much of the rest of the world – requires bi- or multi-partite compromise and extensive negotiation, potentially even in times of emergency. Regardless of how one views such a potential political future,233 it makes sense to plan for that contingency now by making the permanent legal infrastructure of commerce as complete and robust as possible, thereby minimising the extent of emergency interventions that need to be agreed upon in times of crisis.

Conclusion Oliver Wendell Holmes was no doubt right to observe that in matters of law, “certainty generally is an illusion, and repose is not the destiny of man”.234 But there is yet merit, and some measure of repose to be found, in giving that illusion as much substance as reality allows. At the least, parties should have the comfort of a regime that makes it readily apparent what is certain and what is uncertain, so that they can negotiate in the shadow of known unknowns rather than unknown unknowns. Singapore’s law of changed circumstances has some way to go, and only legislation can get us there.

233 For the government’s position on the practicability of such a model in the Singaporean context, see K Shanmugam, ‘Speech by Minister for Law K Shanmugam at the New York State Bar Association Rule of Law Plenary Session’ (Ministry of Law Singapore, 28 October 2009) <https://www.mlaw.gov.sg/news/speeches/speech-by-minister-for-law-k-shanmugam-at-the-new-york-statebar-association-rule-of-law-plenary> accessed 24 July 2020), at paras 55–57. 234 Oliver Wendell Holmes, “The Path of the Law” (1897) 10 Harvard Law Review 457, 466.

8. Can international economic agreements combat COVID-19? Singapore’s experience Pasha L. Hsieh235 Introduction The COVID-19 pandemic has significantly disrupted the international economic order. According to the World Trade Organization (WTO), the unprecedented health crisis may sink global trade by 32% in 2020.236 As an island state highly dependent on trade, Singapore is expected to encounter a 5.8% contraction in gross domestic product, marking its “worst recession since independence.”237 The number of confirmed COVID-19 cases in Singapore surpassed the 45,000 mark on July 7, 2020. 238 Most cases have occurred in foreign worker dormitories, whereas the spread of the disease in the rest of the community has been limited. To gradually resume economic activities and ease border controls, the Singapore government embarked on a three-phased approach when “circuit breaker” measures that imposed lockdown ended on June 1, 2020.239 Much discussion focuses on Singapore’s domestic policy such as stimulus packages and fiscal measures that provide relief to companies and citizens. 240 Nevertheless, Singapore’s lessreported international law strategy toward the crisis yields salient global implications. Selected Asian states that have reasonably managed the coronavirus outbreak, including Korea, Taiwan and Vietnam, have been able to do so without international assistance. Notably different from the self-reliance approach, Singapore has resorted to a two-pronged legal strategy that is built upon international economic agreements at bilateral and regional levels.

Associate Professor of Law and Lee Kong Chian Fellow, Singapore Management University. E-mail: pashahsieh@smu.edu.sg. I acknowledge the valuable assistance of Nicholas Kuek and Tan Yoong San. All errors are my own. 236 World Trade Organization (WTO), ‘Trade Set to Plunge as COVID-19 Pandemic Upends Global Economy’ (8 April 2020) <https://www.wto.org/english/news_e/pres20_e/pr855_e.htm> accessed 13 July 2020. 237 Ovais Subhani, ‘Singapore Economy May Shrink 5.8% This Year: MAS Survey’ (The Straits Times, 15 June 2020) <https://www.straitstimes.com/business/economy/singapore-economy-may-shrink-58-per-cent-in-2020mas-survey> accessed 13 July 2020 . 238 Worldometer, Singapore (13 July 2020) <https://www.worldometers.info/coronavirus/country/singapore/> accessed 13 July 2020. 239 Gov.sg, ‘Ending Circuit Breaker: Phased Approach to Resuming Activities Safely’ (28 May 2020) <https://www.gov.sg/article/ending-circuit-breaker-phased-approach-to-resuming-activities-safely> accessed 13 July 2020. 240 Organisation for Economic Co-operation and Development & Association of Southeast Asian Nations (ASEAN), ‘Enterprise Policy Responses to COVID-19 in ASEAN: Measures to Boost MSME Resilience’ (2020) <https://asean.org/storage/2020/06/Policy-Insight-Enterprise-Policy-Responses-to-COVID-19-in-ASEAN-June2020v2.pdf> at pp 48-51. 235

As of today, Singapore is a party to 25 free trade agreements (FTAs), including the recent Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the European Union (EU)-Singapore FTA.241 The country is also a member of the Association of Southeast Asian Nations (ASEAN) and the Asia-Pacific Economic Cooperation (APEC). The mechanisms under these trade initiatives provide valuable lessons for forging the trade-health nexus and multilateral efforts to combat COVID-19. This essay’s account of these “positive” measures thus adds to the existing literature, which centers on “defensive” mechanisms such as the WTO and FTAs’ exceptions to justify export controls or force majeure and public policy exceptions clauses under investment treaties.242

Facilitating health cooperation, essential goods and electronic commerce The direct benefits of FTAs for managing the COVID-19 challenge is the reduction of tariffs and non-tariff barriers for medical products, including medicine, medical supplies and personal protective equipment such as face masks and hand sanitizer. First, based on the information from its 94 members, the WTO found that the overall preferential average (1.6%) for medical products was less than half of the overall most-favoured-nation average (3.8%).243 FTAs have therefore resulted in tariff liberalization, thus facilitating trade in medical products. Second, many FTA provisions lower technical barriers to trade covering medical products, including the recognition of an exporting country’s standards, regulations and conformity assessment procedures by the importing country. 244 Some FTAs also facilitate cooperation, transparency and obtaining the relevant product registration certificates. Singapore possesses rich experiences in incorporating these provisions into its trade agreements. For instance, Annex 6A of the US-Singapore FTA specifically provides a framework to establish a Working Group on Medical Products.

The group composed of US and Singaporean heath

authorities aims to enhance the exchange of information, professional competencies and scientific

241 WTO, Regional Trade Agreements Database <http://rtais.wto.org/UI/PublicSearchByMemberResult.aspx?MemberCode=702&lang=1&redirect=1> accessed 14 July 2020 . 242 See e.g. Joost Pauwelyn, ‘Export Restrictions in Times of Pandemic: Options and Limits under International Trade Agreements’, in Richard E. Baldwin & Simon J. Evenett (eds), COVID-19 and Trade Policy: Why Turning Inward Won’t Work (CEPR Press 2020) at pp 103, 105-08; United Nations Conference on Trade and Development, ‘Investment Policy Responses to the COVID-19 Pandemic’, Special Issue, No. 4 (2020), Investment Policy Monitor, at annex. 243 WTO, ‘The Treatment of Medical Products in Regional Trade Agreements’ (27 April 2020) <https://www.wto.org/english/tratop_e/covid19_e/medical_products_report_e.pdf> at p 5. 244 ibid at p 7.

collaborations.245 The Singapore-Australia FTA includes commitments on medical devices. The Sectoral Annex on Medical Devices under Chapter 5 of the agreement mandates that both countries agree to classify “medical devices based on different levels of risk.” In deciding to grant marketing authorization, Australia and Singapore will preclude “the use of sale data, pricing data, or related financial data.” The India-Singapore Comprehensive Economic Cooperation Agreement illustrates another example of implementing a special scheme to decrease the technical barriers to trade. Under the scheme that both governments committed in a side letter, India’s “generic medicinal products” that have been approved by a recognised regulatory authority in the United States, United Kingdom, Australia, the European Union and Canada will be subject to a special, more streamlined process for obtaining marketing authorization in Singapore. Annex 8-E of the CPTPP extends the marketing authorization commitment for medical devices under the Singapore-Australia FTA to pharmaceutical products. The CPTPP also obliges both parties to include an appeal or review mechanism in the marketing authorization process.246 It is important to note that the recent EU-Singapore FTA reflects the trend for buttressing the tradehealth nexus by including provisions on promoting cooperation between health authorities. Moreover, the FTA ensures objective and non-discriminatory criteria for “the listing, pricing or reimbursement of pharmaceutical products” and accords applicants adequate opportunities to provide comments. These procedural guarantees will facilitate the multilateralization of COVID19 vaccines once they are available. The international economic agreements that Singapore has utilized go beyond conventional FTAs. Building on the Joint Ministerial Statement on Supply Chain Connectivity that Singapore and eight WTO members issued, Singapore and New Zealand signed the Declaration on Trade in Essential Goods for Combating the COVID-19 Pandemic.247 Both countries agreed to eliminate customs duties, not to apply export prohibitions or reductions, and remove non-tariff barriers for “essential goods.” The declaration is also open to participation by other WTO members. Although this declaration encompasses only soft-law commitments, it is important to note that New Zealand honored the commitments by sending essential supplies to Singapore within a week after

United States Food and Drug Administration, ‘FDA –Singapore, MOU Regarding New Medical Products’ (31 January 2018) <https://www.fda.gov/international-programs/cooperative-arrangements/fda-singapore-mouregarding-new-medical-products>. 246 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (2018), annexes 8-C & 8-E. 247 WTO, ‘Communication from Singapore, Measures Relating to the COVID-19 Pandemic: Declaration on Trade in Essential Goods for Combating the COVID-19 Pandemic’, G/C/W/779 & G/MA/W/151 (16 April 2020) <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/G/C/W779.pdf&Open=True> 245

the declaration was issued.248 The coverage of essential goods in the two annexes provides a model for similar agreements. The annexes cover not only gloves, medicaments and vaccines, but also agricultural products and food, even including beer and ice cream! Tellingly, regulatory responses to COVID-19 involve border closure but travel is essential to international business. In this regard, Singapore has implemented or is negotiating with China, Malaysia and New Zealand to launch a “travel bubble” scheme. 249 As part of the “fast lane” arrangement that decreases or eliminates the 14-day quarantine period, travellers must obtain preclearance prior to departure and undergo both pre-departure and post-arrival health checks. Furthermore, governments’ social distancing and work-from-home requirements have substantially increased the demand for electronic commerce (e-commerce).250 In addition to provisions of the WTO Trade Facilitation Agreement, additional rules that promote digital trade have been included in FTAs. Singapore is the pioneer for initiating digital trade-specific pacts, known as Digital Economy Agreements (DEAs). The country has concluded a trilateral DEA with Chile and New Zealand and is expected to sign additional DEAs with Australia and Korea.251 The DEAs confirm core commitments of the CPTPP, including the cross-border transfer of information and the prohibition of data localization. 252 In addition, the DEAs enhance trade facilitation by promoting paperless trading and e-invoicing. More importantly, DEAs include FTAplus rules that buttress cooperation for FinTech and artificial intelligence. Consequently, the DEAs that Singapore and like-minded countries conclude will enhance a digital economy that will be essential to the post-pandemic recovery.

Regional initiatives of ASEAN and APEC Singapore is a member of ASEAN and APEC, which constitute the two intertwined pillars underpinning the framework for Asian economic integration. Since its inception in 1967, ASEAN 248 Lena Loke, ‘New Zealand sends first batch of essential supplies to Singapore, as part of pact to keep trade flowing amid COVID-19’ (TODAY Online, 22 April 2020) <https://www.todayonline.com/singapore/newzealand-sends-first-batch-essential-supplies-singapore-part-pact-keep-trade-flowing> accessed 14 July 2020. 249 See e.g. Ministry of Foreign Affairs Singapore, ‘Joint Press Statement by Ministry of Foreign Affairs and Ministry of Trade and Industry on the Singapore-China Fast Lane for Essential Travel’ (3 June 2020) <https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2020/06/20200603-SG-CHINAFast-Lane-Essential-Travel> accessed 14 July 2020. 250 WTO, ‘E-Commerce, Trade and the COVID-19 Pandemic’ (4 May 2020) <https://www.wto.org/english/tratop_e/covid19_e/ecommerce_report_e.pdf> at pp 3-4. 251 Infocomm Media Development Authority, ‘Singapore and The Republic of Korea Launch Negotiations on Digital Partnership Agreement’ (22 June 2020) <https://www.imda.gov.sg/news-and-events/MediaRoom/Media-Releases/2020/Singapore-and-The-Republic-of-Korea-Launch-Negotiations-on-DigitalPartnership-Agreement> accessed 15 July 2020. 252 For contents of Digital Economy Agreements, see New Zealand Ministry of Foreign Affairs & Trade, DEPA Modules. <https://www.mfat.govt.nz/en/trade/free-trade-agreements/free-trade-agreements-concluded-but-notin-force/digital-economy-partnership-agreement/depa-modules/> accessed 15 July 2020.

has evolved to be an indispensable “middle power” in the Asia-Pacific through its networks of “ASEAN Plus Three,” “ASEAN Plus Six” and dialogue partners outside the region. Unlike the EU’s top-down, hard-law approach, the ten-state ASEAN has focused on a model of horizontal integration that accords members constructed flexibility in implementing ASEAN pacts. The establishment of the ASEAN Economic Community signified a milestone for regionalism of Southeast Asian countries. In 2020, ASEAN leaders have held special summits and ministerial meetings within the bloc and with ASEAN Plus Three countries (China, Japan and Korea). The countries have pledged to ensure regional supply chains and food security, as well as emergency responses such as financial cooperation for liquidity challenges.253 ASEAN countries’ commitments to sign the mega-regional agreement, the Regional Comprehensive Economic Partnership (RCEP), in 2020 are also seen as a collective trade response to COVID-19.254 Distinct from the legal nature of ASEAN as a formal international organization, APEC is a loose forum that includes 21 Asia-Pacific economies. The diversity of topics that APEC members discuss has helped converge international consensuses and transform them into binding agreements. APEC trade ministers have agreed to facilitate the flow of essential goods and services to fight the pandemic, including medical supplies and agriculture and food products across borders.255 Similar to ASEAN’s commitment, they will also ensure that trading links remain open and minimise disruptions to the global supply chains. In addition, the APEC Health Working Group highlights the importance of collaboration at all levels to control the epidemic promptly.256 The group also functions as APEC’s contact point to cooperate with the World Health Organization and provides a forum to share members’ experiences in response to the SARS epidemic. Singapore has contributed to APEC initiatives and benefited from information-sharing and capacity building perspectives.

253 See e.g. ASEAN, ‘Declaration of the Special ASEAN Summit on Coronavirus Disease 2019 (COVID-19)’ (14 April 2020) <https://asean.org/storage/2020/04/FINAL-Declaration-of-the-Special-ASEAN-Summit-onCOVID-19.pdf>; ASEAN, ‘Joint Statement of the Special ASEAN Plus Three Summit on Coronavirus Disease 2019 (COVID-19)’ (14 April 2020) <https://asean.org/storage/2020/04/Final-Joint-Statement-of-the-SpecialAPT-Summit-on-COVID-19.pdf>. 254 ASEAN, ‘Chairman’s Statement of the 36th ASEAN Summit’ (26 June 2020) <https://asean.org/storage/2020/06/Chairman-Statement-of-the-36th-ASEAN-Summit-FINAL.pdf> at pp 16-17. 255 Asia-Pacific Economic Cooperation (APEC), ‘Statement on COVID-19 by APEC Ministers Responsible for Trade’ (5 May 2020) <https://www.apec.org/Meeting-Papers/Sectoral-Ministerial-Meetings/Trade/2020_trade> 256 APEC, ‘APEC Health Working Group Statement on COVID-19’ (23 Mar 2020) <https://www.apec.org/Press/News-Releases/2020/0323_HWG>.

Conclusion The COVID-19 pandemic is a global challenge that calls for an international solution. Singapore’s two-pronged legal strategy that utilizes bilateral and regional agreements provides a unique and remarkable case study. These bilateral pacts include FTAs that reduce tariffs and non-tariff barriers for medical goods and thus facilitate trade in medical devices and pharmaceutical products. They also ensure the supply of essential goods and promote e-commerce. Moreover, regional agreements via the ASEAN and APEC networks galvanize multilateral efforts to secure supply chains and healthcare cooperation.

Consequently, Singapore’s experience has

demonstrated the significance of strengthening regional integration and trade-health interactions for combatting COVID-19.

(B)

Business survival in times of uncertainty

9. Shareholders’ rights and corporate meetings post COVID-19 Christopher Chen257

Introduction This short paper reflects on corporate governance and shareholders’ rights during and following the COVID-19 pandemic. The lockdown has affected the way companies’ organs operate. It is unfortunate that the pandemic took place around the critical time of year when most companies hold annual shareholders’ meetings (or general meetings). How, then, can shareholders exercise their rights? How can the board of directors and senior management function during the lockdown period? Technology naturally provides a solution, similar to online teaching and working from home. However, do virtual and remote meetings serve the purpose of having those meetings? Even when we get over the pandemic, what will the ‘new normal’ be in the future for corporate meetings? This paper seeks to explore some of these issues by using some examples from the Asian market. In the remainder of the paper, we first illustrate the traditional model of corporate decision-making by way of board and general meetings. We consider the costs of holding physical meetings and their benefits. We then briefly examine the feasibility of using electronic meetings on a normal day, and how the pandemic may shape the future use of electronic corporate meetings. We then offer some reflections for policymakers to consider.

Traditional model of corporate decision‐making In most (if not all) countries, the power of a company (as a legal person) to make a decision depends on the company’s organs. For certain major decisions, company law in a given country might assign the decision-making power to shareholders. In contrast, for daily management decisions, the power may lie with the board of directors or can be delegated to senior management. How the decision-making power is allocated varies from country to country. It also depends on a company’s constitution (or charter). How can shareholders and the board of directors make decisions? The traditional model is to have physical meetings: shareholders’ meetings (by shareholders, who are considered a company’s owners) and board meetings (by the board of directors of a company). During those meetings, shareholders or the director can pass resolutions, forming the will of a company. There are associated costs and benefits to calling shareholders’ meetings. First, it may be relatively easy if a company has only a handful of shareholders. But modern large corporations can have Associate Professor of Law, Singapore Management University.

257

many shareholders. For example, the 2018–19 annual report of Singapore Telecommunication Ltd (SingTel) shows that the company had a total of 328,719 shareholders at the time of the report.258 The number of shareholders warrants that shareholders’ meetings are not suitable for more daily and timely decisions. One might also wonder how likely it is to find a place to host a meeting that can accommodate so many shareholders (though, in practice, the chance of having more than a few hundred shareholders attending is low). The greater the number of shareholders, the more it costs to convene a shareholders’ meeting (e.g. the costs to send notices or hire a venue). However, since the shareholders are a company’s owners (and the residual claimants), the trade-off is to assign shareholders’ meetings for more important decisions (e.g. changing the corporate constitution, or electing directors, etc.). Regarding the board of directors, unless the board comprises of only one person, the board also has to convene to make decisions. However, corporate law is often more flexible with regard to board meetings. Under the Anglo-American model of corporate law, how a board meeting should be convened largely depends on a company’s constitution. In contrast, there are usually more formal or procedural requirements for shareholders’ meetings (e.g. a minimum prior notice period, as seen in Singapore’s Companies Act s 184). There could be some additional costs for physical shareholders’ meetings. First, in some markets, companies have to compete for a few days (and for the availability of suitable venues on those dates) during spring and early summer because those few days are considered good and fortunate days. While it may sound superstitious, it is common practice in some places (e.g. Taiwan). Hence, there could be costs when competing for suitable venues. Second, especially in countries with some quorum requirements for general meetings (e.g. Taiwan), it is essential to entice shareholders either to attend meetings or to appoint proxies to attend meetings. This is perhaps less of a problem in markets dominated by institutional shareholders. However, it may be a challenging task at times in many East Asian markets (e.g. China, Taiwan and Hong Kong) where individual investors contribute to a significant proportion of trading activities. Otherwise, a meeting (and resolutions passed in the meeting) may be invalid or vacated by the courts, depending on applicable laws in the market. This also in turn would affect the choice of venue. To incentivise shareholders, companies sometimes have to provide some incentives. In some markets, companies might offer good food in the meeting venue (e.g. Singapore). In some markets, it is common for companies to offer some gifts in return for attendance or proxy appointment (e.g. Taiwan). These contribute to the costs.

258 Singapore Telecommunication Ltd Annual Report 2019 <https://cdn.aws.singtel.com/annualreport/2019/files/Shareholder_Information.pdf>.

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Despite the costs of holding a physical meeting, there are tangible benefits. In a face-to-face setting, discontented shareholders may provide different opinions in the meeting. Verbal challenges in a physical meeting may provide some restraints on the company’s management (who usually hope the meeting will end as soon as possible without drama). Whenever the media or reporters are in the meeting, a challenge by a discontented shareholder may provide some news coverage that the management does not want. In one extraordinary incident in Taiwan in 2013, the chairwoman of HTC (then still a mobile phone manufacturer) personally promised to give every individual shareholder who was present at the general meeting a new high-end Android mobile phone produced by HTC after facing heavy criticism during the meeting for the company’s lacklustre share-price performance. 259 A couple of hundred individual shareholders were lucky winners of a top-end new phone on the day. In contrast with shareholders’ meetings, board meetings illustrate a completely different picture. On the one hand, there are usually not too many directors: a company rarely has more than 20 directors on the board. Depending on market practices, an average size of 10–15 directors is probably quite normal in the Far East. On the other hand, a primary responsibility of the directors is to participate in board meetings. It is part of their job. Hence, cost-wise, a company only needs to find a large-enough internal boardroom or meeting room to host a meeting. There is also no need to provide incentives to entice people to attend meetings. Unless board members are scattered around the world, the costs to hold and attend board meetings should generally be low. Therefore, physical meetings should not be a huge problem.

Electronic corporate meetings Before the pandemic of 2020 Even before the pandemic, there were already plenty of tools for holding remote and electronic meetings. It is a matter of choice whether a company can and wants to use electronic meetings. But it may not be a technological problem. Meeting via video-conferencing software has perhaps been more popularly used for board meetings. For example, Taiwan allows directors to attend a board meeting via video-conferencing software and it is deemed as if the director is present at the physical meeting.260 Taiwanese law also allows a board meeting to be conducted entirely via video-conferencing (though the video and

Wang Yi-Hong, (The Liberty Times, 21 June 2013) <https://ec.ltn.com.tw/article/breakingnews/825812>. 260 Regulations Governing Procedure for Board of Directors Meetings of Public Companies, Article 9 (as amended Jan. 15, 2020) <https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=G0400127>. 259

recordings have to be kept permanently).261 In Singapore, the law does not prescribe that board meetings have to be conducted physically, and it is generally left to companies’ constitutions to decide. In a litigation, it has happened that a board meeting was conducted via a teleconference.262 Therefore, calling an electronic board meeting is probably legally allowed in many countries. It may also suit multinational companies where the board of directors might be in different parts of the world. However, it is one thing that an electronic board meeting is possible; it is harder to predict how many companies actively adopt electronic board meetings as common practice. In contrast to board meetings, it was perhaps far less common to hold a general meeting via teleor video-conferencing methods before the COVID-19 pandemic. There were some genuine concerns about electronic general meetings. Sometimes, the challenge comes from the law. In Taiwan, for example, public companies are not allowed by law to hold a video-conference general meeting.263 Leaving legal restrictions aside, an electronic general meeting could face technical issues. For example, how can a company calculate a quorum? The task becomes more challenging if the quorum has to be decided not only at the outset of a meeting but also at the time when a resolution is required. In this situation, should attendance be counted based on the log-in record in a meeting? However, if only log-in records are used, it may happen that a shareholder is counted but that he or she is either not in front of the screen or is not paying attention at all (as has happened with many virtual classes or seminars). Moreover, even if we can solve the quorum problem, how shareholders vote also presents a significant challenge. Unlike a board meeting, where manually counting votes does not cause a problem (due to smaller size), it is probably unthinkable to count votes from several hundred participants (if there are that many shareholders attending) if a general meeting is conducted electronically. Is it possible to conduct a real-time vote that a company can do in a physical meeting (whether by a show of hands, voting by ballot or with a device)? In theory a company might use some online polling tools to allow shareholders to vote remotely. However, doing so might invite other legal and technical issues for companies to overcome. For example, how can a company ascertain that it is a shareholder that actually votes remotely and electronically (rather than somebody else who happens to be in front of the screen)? There could also be technical issues, such as the stability of the internet connection, cyber security, etc.

261 Regulations Governing Procedure for Board of Directors Meetings of Public Companies, Article 18 (as amended Jan. 15, 2020) <https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=G0400127>. 262 Golden Harvest Films Distribution (Pte) Ltd v Golden Village Multiplex Pte Ltd [2007] 1 SLR 940. 263 Taiwan Company Act, Article 172-2 (promulgated Dec. 26, 1929, effective Jul. 1, 1931, as amended Aug. 1, 2018) <https://gcis.nat.gov.tw/elaw/English/lawEnDtlAction.do?method=viewLaw&pk=163>.

These issues may well be resolved with better technology. However, it is questionable whether it is worth the money and efforts to do so. This might explain the relative lack of interest in holding electronic shareholders’ meetings before the COVID-19 pandemic.

During the COVID-19 pandemic The COVID-19 pandemic has provided an impetus to adopt electronic meetings during some forms of lockdown and social distancing requirements. Even in countries without a large-scale lockdown (e.g. Taiwan), it is generally not advisable (or in some cases even prohibited) to have mass gatherings of hundreds of shareholders. Thus, companies have either had to delay general meetings (and deal with the potential consequences) or find other ways to convene shareholders’ meetings. The urgency to have electronic shareholders’ meetings certainly varies country by country depending on how bad the pandemic has affected a society. In Taiwan, for example, there was no enforced lockdown of society except for some restrictions (e.g. no gatherings of over 100 people or wearing face masks on public transport). Life has otherwise been pretty normal. Technically, companies can still hold general meetings. However, the Financial Supervisory Commission, the financial regulator, advised companies to comply with social distancing rules (e.g. a minimum of 1 metre apart and no adjacent seating) and has issued guidelines regarding some logistic requirements for a shareholders’ meeting (e.g. temperature-checking, improving queuing systems to avoid over-crowding, etc.).264 In addition, since over 95% of companies have fewer than 100 shareholders attending a shareholders’ meeting, pursuant to data from the Taiwan Depository & Clearing Corporation,265 there has not been much of a problem with complying with restrictions regarding gatherings of more than 100 people. The regulator also encouraged shareholders to vote via electronic means (with an electronic device issued in the meeting) during the meeting, rather than casting a vote on a ballot (in order to reduce contact). In contrast, in Singapore the circuit-breaker mechanism between April and early June has meant that companies could not physically hold a shareholders’ meeting as planned. Based on the COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings for Companies, Variable Capital Companies, Business Trusts, Unit Trusts and Debenture Holders) Order 2020 (‘the Order’), issued by the Ministry of Law on 27 March 2020, Singapore has allowed companies to have alternative arrangements for general meetings (despite requirement by company law). The Order provides much legal certainties and protection in relation to general meetings. The 264 Financial Supervisory Commission R.O.C (Taiwan), (9 April 2020) <https://www.fsc.gov.tw/ch/home.jsp?id=96&parentpath=0,2&mcustomize=news_view.jsp&dataserno=202004 090002&aplistdn=ou=news,ou=multisite,ou=chinese,ou=ap_root,o=fsc,c=tw&dtable=News>. 265 ibid.

alternative arrangements mean that companies can hold shareholders’ meetings in whole or in part by electronic means.266 The list of general meeting schedules (before 12 June 2020) published on the Singapore Exchange website showed that the meetings held in June continued to be held by electronic means, though with some relaxation from the circuit-breaker. To address any problems with quorum, the Order clarifies that attendance is counted if a shareholder attends a meeting by observing and listening to the process of the meeting electronically.267 To resolve the difficulty of voting, a shrewd solution is to allow shareholders (who really want to vote) to appoint the chairman of the meeting to be their proxy (better still with specific instructions on how to vote for resolutions).268 The shareholder has to deliver the proxy form by email to a designated email address stated in the general meeting notice. This arrangement temporarily addresses the apparent difficulties regarding voting (no matter by raise of hands or by a poll) via video-conferencing software. Last, it is worth noting that the pandemic has presented fewer challenges to board meetings. While the board most likely cannot meet physically if there is lockdown in a country, it was shown before the pandemic that electronic meetings with a smaller group presented less problems.

Post COVID‐19: will electronic meetings be the new normal? Following the COVID-19 pandemic, will electronic meetings become the new normal? Much may depend on how the pandemic has developed over time and people’s mindfulness and awareness of future pandemics or significant public-health events. At least, the pandemic has shown that electronic shareholders’ meetings are not impossible, as they may have sounded before 2020. Singapore has shown that electronic general meetings can be conducted, with some technical issues being sorted out (e.g. quorum and voting) within the existing corporate law framework (e.g. the use of proxy). However, it is one thing to address a problem temporarily; a further question is whether electronic meetings provide a viable option for companies in the future, alongside physical meetings. This paper argues that virtual and electronic meetings may become more common at the board level. Since the board meets regularly only a few times a year (in addition to meetings for board committees), and the size of the board involves no more than 20 people in most cases, it is not too costly to arrange electronic meetings where necessary. In a smaller group, perhaps the quality of COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings for Companies, Variable Capital Companies, Business Trusts, Unit Trusts and Debenture Holders) Order 2020 (“the Order”) (No S 269/2020), First Schedule, first column, item 1. 267 The Order (n 266), first column, items 2 and 5. 268 The Order (n 266), first column, item 6. 266

discussion need not be compromised due to the remote nature of electronic means, as long as the company can still provide sufficient information to board members in a timely and comprehensive manner. Moreover, the availability of electronic board meetings might reduce the need for long-distance travel by some board members in some multinational companies. On the one hand, this might save the company some costs if the travel expenses are incurred by the company. On the other hand, it might also help to attract international talent if physical presence is not necessarily required. This paper does not suggest that electronic board meetings can perfectly replace traditional board meetings in a room. There is still value in meeting other people in person. Some directors might have to be local to provide some physical monitoring. What we suggest is that, in a relatively small group of people, electronic meetings might be more efficient at times. In contrast, for shareholders’ meetings, it is harder to predict whether electronic general meetings will become the norm (in countries where the law allows) after the pandemic. Similar to board meetings, holding an electronic general meeting of a company with a few shareholders should not cause much disruption. In some countries (e.g. Singapore), private companies can already waive the requirement of general meetings and can pass a resolution by written means. Hence, electronic general meetings shall not cause a problem for those small and private companies. The real question is for larger ones. The discussion below will proceed on the basis that a company is a large company with thousands of shareholders. On the bright side, it could be cheaper to hold an electronic general meeting, saving costs on hiring a venue, personnel and attendance, though it might cost money to purchase suitable software and to have cyber security checks in place. However, there could be obvious downsides to the effectiveness of shareholders’ meetings when they are conducted online. First, shareholders may lose the essential ability to speak up in front of corporate management. In an electronic meeting, shareholders can mostly listen to the proceedings of the shareholders’ meeting. There could also be security or personal data concerns (e.g. sharing shareholders’ data via the meeting, or nonshareholders hacking into a meeting and voting). From a company’s angle, video-conferencing all but guarantees that there might be video recordings of the proceedings of the general meeting floating on the internet. Second, it remains questionable as to how shareholders can vote in an electronic general meeting. Ideally, shareholders may be able to remotely vote in real-time for a resolution. But this depends on the availability (and costs) of technological solutions to verify a shareholder, to ensure security and confidentiality as well as accuracy. Singapore provided a fairly smart solution by asking shareholders to vote early with proxies. However, this means shareholders have to make decisions

on paper before the meeting is even convened (so as to allow them to dispatch the proxy form). The solution might suit some shareholders who would never attend anyway, but it may not be suitable for those who want to take the time to attend a meeting before deciding on their votes. In addition, an electronic general meeting in combination with early voting by proxies might make shareholders’ meetings more of a formality rather than being a forum for shareholders to meet and make decisions. There will be no need to convene a meeting if all resolutions can be voted for remotely by mail or by proxy. It is not that shareholders’ meetings always have a lot of noise from shareholders. Many shareholders’ meetings are adjourned fairly quickly. Even for companies with millions of shareholders, the meeting can be fairly quiet and can be attended by no more than a couple of hundred shareholders. Hence, participation does not necessarily present a problem in practice for most firms. However, from a policymaker’s angle, the law should design rules to maximise the benefits of shareholders’ meetings rather than prescribing rules that may compromise their function. Policymakers have to consider whether this is what the law wants general meetings to be in the future. In countries where corporate law is generally more flexible (e.g. Singapore), the decision to normalise electronic general meetings could be decided by a company’s constitution. Even if there is no difficulty or urgency to have electronic meetings, companies might still consider putting some provision into the constitution in order to meet future contingencies. COVID-19 took place 17 years after SARS and only a few years after MERS in some Asian jurisdictions. It may only be a matter of time before another pandemic or significant event disrupts the market and economy. Thus, having some contingency plans might be a good idea. However, in countries where corporate law is more command-and-control in style (e.g. Taiwan), it is arguable that policymakers should deal with the prospect of electronic general meetings in the future as a matter of law. It may be too late if lawmakers only consider changing the law when a pandemic has overshadowed a country. This paper generally argues that a simple prohibition of electronic meetings (even if only for larger corporations) should not be the best option. When facing potential uncertainties (e.g. a second or third wave of infections), a legal regime should not be purely based on luck and probabilities. In the worst-case scenario, there is little doubt that holding electronic meetings is the only viable alternative to having no meeting at all for an unknown period. Thus, this paper argues that corporate law should generally be more accommodating to the use of electronic corporate meetings. What this paper proposes is that corporate law should be more flexible in letting companies choose ways to meet and for them to have contingency plans for corporate decision-making. For board

meetings, we argue that the law should give the company full liberty to choose the methods and venue of the meetings. For shareholders’ meetings, this paper suggests that there are merits of having a physical meeting, but electronic general meetings should be recognised and allowed at least as a contingency plan. It might also open the door to a more hybrid type of meeting, combining physical and virtual attendance (as Hong Kong law so allows). We accept that general meetings of companies with thousands of shareholders have already lost their practical sense of a ‘meeting’ of shareholders when the meeting is largely attended only by a small percentage of them. Nevertheless, we argue that shareholders’ meetings still have some symbolic values. It is not just because the law requires shareholders to make important decisions. Without general meetings, shareholders (especially minority ones) may not be able to exercise their rights and play their roles in corporate governance effectively. If electronic shareholders’ meetings should be allowed (even as a back-up plan), regulators should consider further how to improve shareholders’ participation and exercise of voting power more effectively and meaningfully in a virtual meeting.

10. COVID-19 and the spotlight on stakeholderism Pearlie Koh269 The global disrupter that is COVID-19 has profoundly impacted human life on earth. Lives and livelihoods have been lost. But even for those amongst us fortunate enough to escape such calamity, significant adjustments have had to be made to the ways in which we live, play and work. As the United Nations noted, “[t]his is much more than a health crisis. It is a human, economic and social crisis. The coronavirus disease … is attacking societies at their core”.270 Even as the pandemic exacts its toll at a very human level, there has been cataclysmic consequences for businesses worldwide. The International Monetary Fund has described the pandemic as the “worst economic crisis since the Great Depression of the 1930s”271 and the World Trade Organisation has forecast a fall in global trade of between 13% to 32% this year. 272 In Singapore, the Ministry of Trade and Industry expects the Singapore economy to shrink by 7% to 4%, making it Singapore’s worst-ever recession since independence in 1965.273 In the face of this grim reality, legislators and policy makers have responded by enacting or amending relevant laws. In Singapore, the COVID-19 (Temporary Measures) Act274 provides legal reprieve for individuals and businesses unable to fulfil their contractual obligations as a result of the pandemic by temporarily suspending or relaxing the application of certain rules. Additionally, adjustments were made to debt thresholds and time frames under insolvency laws so as to provide respite for businesses and individuals in financial distress. These are indeed, to state it mildly, unusual times. However, even as it has been existentially necessary for companies and their management teams to work out how best to ride out the pandemic, many have also seemingly de-prioritised the maximization of economic value and reoriented, at least temporarily, towards a broader societal and communitarian role. Apart from donating in cash or in kind, companies around the world have taken on entirely new challenges to assist where help is needed in the struggle against COVID-19. For example, a French luxury conglomerate converted some of its cosmetics and perfume factories to manufacture disinfectant Associate Professor of Law, Singapore Management University. 270 United Nations, ‘Everyone Included: Social Impact of COVID-19’ <https://www.un.org/development/desa/dspd/everyone-included-COVID-19.html>. 271 ‘Coronavirus: Worst economic crisis since 1930s depression, IMF says’ (BBC, 9 April 2020) <https://www.bbc.com/news/business-52236936>. 272 DG Azevedo, ‘Trade forecast press conference’ (World Trade Organization, 8 April 2020) <https://www.wto.org/english/news_e/spra_e/spra303_e.htm>. 273 Ovais Subhani, ‘Singapore heads for worst recession since independence; economy to shrink by 7% to 4% on COVID-19 impact’ (The Straits Times, 26 May 2020) <https://www.straitstimes.com/business/economy/sporeto-sink-into-deeper-recession-than-expected-2020-growth-forecast-cut-to>. 274 COVID-19 (Temporary Measures) Act 2020 (No 14 of 2020). 269

which were distributed free to French hospitals.275 In Singapore, a gaming hardware manufacturer set up an automated face mask manufacturing line to produce face masks which were initially made available free to citizens and residents. 276 As an observer noted, many companies are “returning to their mission statements, those lofty sentiments that so many put aside in their relentless pursuit of growth”.277 This revives that enduring debate over what a corporation’s purpose should be but in a very real and present context. It is interesting to note that the famous Berle-Dodd debate that started it all also occurred during a time of severe worldwide economic depression. The fundamental question that has divided commentators is whether the company ought to be seen as essentially a private organisation dictated solely by shareholder interests, or as a responsible corporate citizen and hence run in the interests of multiple “stakeholders” or constituencies including its employees, creditors and the larger public. The COVID-19-precipitated trend of companies looking beyond shareholder value is the latter view of corporate purpose being put in practice. The fact is that there has been, in recent times, increasing emphasis and support for a more expansive view of a company’s purpose, a purpose that embraces environmental, social and communitarian themes. 278 The question then is whether and how the existing legal framework for corporate governance accommodates and supports this wider concept of “corporate purpose”. At law, it would seem that “corporate purpose” may have different applications and perspectives. Historically, legislation dictated the inclusion of a statement of the company’s “objects” in its constitution which restricted its scope of business. This gave rise to the idea that the company’s legal capacity was limited and thence to the wretched doctrine of ultra vires. From this perspective, a company’s “purposes” is narrowly defined as its “objects”, and any authority conferred on company managers to exercise corporate powers is necessarily constrained by these “purposes’. Companies are no longer required to include a statement of their objects in their constitutions although they retain the option to do. This dispensation means that companies may potentially engage in any lawful business as their legal capacity is no longer circumscribed. Nevertheless, Leila Abboud, ‘Inside the factory: how LVMH met France’s call for hand sanitiser in 72 hours’ (Financial Times, 19 March 2020) <https://www.ft.com/content/e9c2bae4-6909-11ea-800d-da70cff6e4d3>. 276 Aradhana Aravindan, ‘Gaming firm Razer to roll out mask vending machines in Singapore’ (Reuters, 13 May 2020) <https://www.reuters.com/article/us-health-coronavirus-singapore-masks/gaming-firm-razer-to-roll-outmask-vending-machines-in-singapore-idUSKBN22P0I3>. 277 Jeff Pundyk, ‘Corporate Purpose Becoming a Prerequisite for Recovery’ (The Conference Board, 11 May 2020) <https://conference-board.org/blog/marketing-communications/Corporate-Purpose-PrerequisiteRecovery>. 278 Klaus Schwab, ‘Davos Manifesto 2020: The Universal Purpose of a Company in the Fourth Industrial Revolution’ (World Economic Forum, 2 Dec 2019) <https://www.weforum.org/agenda/2019/12/davosmanifesto-2020-the-universal-purpose-of-a-company-in-the-fourth-industrial-revolution/>; Punit Renjen, ‘Societal Impact: Purpose Begins to Pay Off’ (The Wall Street Journal, 28 January 2019) <https://deloitte.wsj.com/riskandcompliance/2019/01/28/societal-impact-purpose-begins-to-payoff/?mod=relatedInsights?mod=relatedcontent>. 275

any statement of objects only discloses what the company can do; it does not articulate why the company is carrying on business in the first place, or for whose benefit it does so. The conception of “corporate purpose” at general law may be somewhat more pertinent to the “why” question. Here, the notion of “purpose” defines the outer limits of managerial power, not only as a function of authority but also as a measure of duty. Directors are required to exercise their powers “in the interests of the company and not for any collateral purpose”. Any purpose that is not in the company’s interests would fail to be a corporate purpose. However, although the notion of “corporate interests” is potentially wide enough to encompass interests beyond shareholder value, the law has mostly assumed that companies existed for the benefit of their incorporators and shareholders, and that accordingly, the interests of the company are represented by the collective interests of “the corporators as a general body”. Thus, whilst the law countenances consideration of these other interests, the interests of the company remains ultimately anchored by shareholder benefit and value. The UK’s statutory statement of directors’ duties affirms this, and the Singapore position, whilst less explicit, is likely to be the same. But even against this legal background, the courts are generally loathe to interfere with genuine commercial decisions made in good faith by commercial men. This is the basis of the business judgment rule. Thus, any consideration of wider stakeholder interests may well be justifiable and justified as “good business” even if, in the shorter term, profitability, and hence shareholder interests, is deprioritised. This is perhaps especially so during the pandemic as how a company conducts itself during times of stress is likely to have a lasting impact on its long-term future. It has been observed that “purposeful” companies tended to be more resilient in times of stress, 279 an observation that has been corroborated by the fact that the companies that have thrived notwithstanding the difficulties presented by the pandemic are those that subscribe to “an authentic and integrated commitment to purpose larger than profitability or growth”.280 Thus, it may be said that the law is largely accommodative of the idea of a more inclusive “purposive-ness”. Indeed, the Companies Act enshrines this by making it explicit that directors can take account of employees’ interests. While the law does not, as a general rule, compel “stakeholder-ism”, things change when the company is in financial difficulties. Here, the law requires directors to deprioritise shareholder interests in favour of, specifically, creditors’ interests. The courts have therefore repeatedly asserted that “as long as there are reasons to be concerned that the creditors’ interests are or will be at risk because of difficult financial circumstances, the directors ignore those interests at their peril.” Although not as all-encompassing as stakeholderism See also Jeff Pundyk (n 277); The Purposeful Company website <http://www.biginnovationcentre-purposefulcompany.com/>. 280 Nell Derick Debevoise, ‘Why Purpose-Driven Businesses Are Faring Better In COVID-19’ (Forbes, 12 May 2020) <https://www.forbes.com/sites/nelldebevoise/2020/05/12/why-purpose-driven-businesses-are-faringbetter-in-COVID-19/#15a6a37c22a0>. 279

might demand, this legal obligation does underscore the need to look beyond shareholder value in times of crisis, and is therefore consistent overall with the idea of “purposiveness”. Thus, an insistence on adhering to the narrower traditional conception of “purpose” might well mean a failure on the part of the board to adjust to the times, hence a possible breach of duty.

11. Stock buybacks: some old norm should remain new Zhang Wei281 Corporate payouts, especially through stock buybacks, are never short of critics. COVID-19 has simply energized them further. From the energy industry to airlines and banks, US public companies are blamed for ensnaring themselves into the abysmal crisis in the midst of COVID-19 by handing out cashes extravagantly to buy back stocks years before. However, as astutely pointed out by Professors Jesse Fried and Charles Wang, the critics did not get the facts right even before COVID-19. After taking into consideration the amount of newly raised capital through equity or debt issuances, the cumulative net payouts by US public companies between 2007 and 2016 totalled just above 40% of their net income, not reaching even a half of what the critics claimed to be. At the same time, studies on motivations and impacts of stock buybacks are legion before COVID19. More often than not, empirical evidence points to the benign effects of buybacks. For instance, buybacks are predominantly deemed by the market as a credible signal of undervaluation of stock price of listed companies, which patently contributes to the efficiency of the capital market. Similarly, draining the free cash flow under the control of the management removes an important source of agency costs, a point well-known to the students of corporate governance since Professor Jensen’s profound insight presented in the mid-1980s. Again, empirical data bear out buyback’s constructive role anticipated by the theory. On the other hand, the claimed pernicious inducement of buybacks finds much weaker, if any, empirical support. For example, the suspected motives of informed-trading are debunked by the fact that buybacks are conducted overwhelmingly through public market and avoiding the disclosure windows of sensitive information. Since tender offers at fixed prices entail less risk of being perceived as manipulation and can be launched at much larger scales than public market purchases under the regulatory safe harbours, insiders would reap substantially more benefits through tender offers should buying back stocks are mainly to facilitate informed-trading. Moreover, while earnings management is apparently associated with stock buybacks, the direction of the causality is controversial, and may well be flowing from buybacks toward management. In other words, earnings are managed months before announcement of buybacks in order to facilitate the buyback plan under consideration. In any event, investors appear to be smart enough to call 281 Associate Professor of Law, Singapore Management University.

out such management mischiefs by discounting their stock prices after firms have made clear their intention to buy stocks back. Fierce criticism has been laid on stock buybacks for siphoning funds out of the corporate reserve for R&D investments. As rightfully noted by commentators, however, the cashflow going back to shareholders of public companies has turned into a source of capital supporting energetic R&D research in private companies, startups in particular. It is well conceivable that the R&D money is likely to be employed more efficiently in the private companies seeing a robust growth than in established ones whose stocks have been floating publicly for a long time. The theory goes, therefore, stock buybacks by public companies will promote, rather than suffocate, R&D efforts in our society. Admittedly, empirical evidence on this latter regard is sparse. Some rudimentary observation of the changes in total factor productivity (TFP), a measure of contribution of technology development to aggregate economic growth, in US and Japan, however, establishes a prima facie case that stock buybacks are unlikely to have caused a sacrifice to the overall technological development. The amount of stock buybacks started to surge in US since the SEC adopted Rule 10b-18 to relax buybacks in 1982, yet the TFP in US rises in tandem thereafter. Similarly, in Japan the Companies Act was revised in 2001 and then 2003 to substantially loosen the restrictions on stock buybacks. However, the TFP in Japan shows no sign of declining in the wake of the changes in law. The financial fallout of American companies at the height of COVID-19 cannot be convincingly attributed to the abundance of cash returned to shareholders through buybacks, either. As Professor Charles Elson of the University of Delaware stated, even if companies had not bought back their stocks, they would not have had enough cash on hand to support the kinds of revenue declines we are seeing. The latest research by Professors Fahlenbrach, Rageth, and Stulz confirms that “had firms not had payouts in the last three years, their financial flexibility would not have been very different on average and their average improvement in stock returns would have been smaller than 2%”. Hence, the idea of hoarding cash in preparation for such an unpredictable risk resulting in such a large scale financial loss appears to be a highly inefficient type of self-insurance. Social security network and governmental grants could be more cost-effective to deal with catastrophes of small probabilities like COVID-19. On the other hand, the costs of cash hoarding could be extremely high, both because of the slack it encourages in corporate governance and the misallocation of capital contributing to macroeconomic stagnation. We are unlikely to see disasters or plagues of a similar scale at least in the near future, but we are almost certain to see managerial opportunism on daily basis if indulgence in cash is unbridled.

In the Asian-Pacific region, stock buybacks by public companies do not seem to be generating a great amount of concern. If anything, there is a consistent relaxation in rules of buybacks. In the wake of the 1997 Asian financial crisis, for example, Singapore amended its Companies Act to allow companies to purchase up to 10% of their own stocks out of distributable profits. It is considered a step to address the issue of lack of good investment opportunities by a number of cash rich companies during the crisis. In 2013, the cap on stock buybacks was further raised to 20%. Similarly, Japan eased its long-standing restriction on stock buybacks first in 2001, with even greater discretion of buying back stocks granted to corporate boards in 2003. Most recently, China followed suit in 2018 to permit stock buybacks by listed companies to maintain corporate and equity value generally. Considering the highly concentrated ownership structure and the risk of tunnelling often observed in many countries in the region, the legal blessing on stock buybacks is probably a right movement to enhance corporate governance and upgrade market efficiency, both of which are essential to sustainable capital formation. While some new norms may settle down in the aftermath of COVID19, we also have every reason to believe that, many fundamental human behaviours will remain unchanged. Therefore, those old norms that helped resist our temptations in the past will perhaps continue to be effective after the virus is subdued.

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12. The value of insolvency law in the COVID-19 crisis Aurelio Gurrea-Martinez282 Introduction The COVID-19 pandemic not only has generated a social, humanitarian and public health crisis but it has also led to the worst recession the world’s economy has experienced since the Great Depression.283 As a response to the economic challenges generated by the COVID-19 crisis, many countries are responding with a variety of legal and economic measures that seek to support businesses, employees, and households.284

The role and limits of insolvency law An efficient corporate insolvency framework should perform two primary functions. 285 First, it should minimise the destruction of value generated in a situation of insolvency. This is done through a variety of tools generally provided by insolvency law, 286 including: (i) the existence of a moratorium that stops creditors from enforcing their claims when a debtor is unable to pay its debts; (ii) the inability of lenders and suppliers to terminate their contracts with the debtor upon the initiation of an insolvency proceeding; and (iii) the possibility of having access to new finance, since the court, under certain conditions, may grant a super-priority status to those lenders willing to provide new financial sources to a company subject to a formal insolvency or restructuring procedure.287

Assistant Professor of Law and Head of the Singapore Global Restructuring Initiative, Singapore Management University. 283 G. Gopinath, ‘The Great Lockdown: Worst Economic Downturn Since the Great Depression’ (IMF Blog, 14 April 2020) <https://blogs.imf.org/2020/04/14/the-great-lockdown-worst-economic-downturn-since-the-greatdepression/>. 284 For a summary of the responses adopted by many countries around the world, see INSOL International and World Bank Group, ‘Global Guide: Measures adopted to support distressed businesses through the COVID-19 crisis’ (3 July 2020) <http://insol-techlibrary.s3.amazonaws.com/a8d909e7-532c-489a-b7fb3a05cc15377a.pdf?AWSAccessKeyId=AKIAJA2C2IGD2CIW7KIA&Expires=1595508582&Signature=94EIl R49bKc69Vx0RcKDUgF7b4U%3D>. 285 See Aurelio Gurrea-Martinez, ‘The Role of Corporate Insolvency Law in the Promotion of Economic Growth’ (SGRI Blog, 1 July 2020) <https://cebcla.smu.edu.sg/sgri/blog/2020/07/01/role-corporate-insolvency-lawpromotion-economic-growth>. 286 It should be noted, however, that some of these tools might not be found in some jurisdictions. Likewise, other countries with most sophisticated insolvency frameworks, such as Singapore and the United States, even provide more insolvency tools to support debtors. 287 Some authors have pointed out that one of the primary functions of insolvency law is actually serving as a ‘liquidity provider’ for firms. See Kenneth Ayotte and David Skeel, ‘Bankruptcy Law as a Liquidity Provider’ (2013) 80(4) The University of Chicago Law Review <http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/01_Ayotte_Skeel.pdf>. 282

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Second, corporate insolvency law should also make sure that the debtor’s assets are efficiently allocated. In the context of viable companies (that is, companies that are worth more if the assets are kept together under their current use), that means that a corporate insolvency regime should make sure that the debtor is provided with the necessary tools to emerge from insolvency with a new financial structure. These tools include not only an adequate forum for negotiations, usually led by a reliable third party (e.g., bankruptcy judge), but also certain rules that facilitate the financial reorganisation of the debtor. For example, outside of an insolvency proceeding, debtors generally need consent of all their creditors to modify their debt agreements. In an insolvency proceeding, however, this is no longer needed. A majority or qualified majority of each class of creditors will be sufficient. In fact, in some insolvency jurisdictions such as Singapore and the United States, a reorganisation plan can even be passed without the approval of all the classes of creditors provided that various requirements seeking to protect the interest of the creditors are met.288 However, even in countries with the most sophisticated restructuring frameworks, insolvency law is subject to various limitations during the current pandemic. First, the commencement of insolvency proceedings imposes significant costs that can be particularly prohibitive for micro, small and medium-sized enterprises (MSMEs).289 Second, the current pandemic may lead to a wave of insolvency cases that can be unmanageable for any judicial system.290 For this reason, if the insolvency curve generated by the COVID-19 pandemic is not flattened, the judicial system can become overwhelmed, harming the ability of insolvency law to help viable companies facing financial trouble.

Flattening the insolvency curve generated by the COVID-19 crisis In my view, the current situation should encourage countries to implement three types of responses to flatten the insolvency course while keeping businesses alive. First, they should provide a breathing space to debtors by enacting emerging legislation that should include not only temporary changes to the insolvency framework but also other changes affecting contracts and creditors’ rights.291 Second, even if debtors are provided with a breathing space that usually involves protecting them from legal actions initiated by their creditors, they still need to cover many expenses and fixed The ability to impose a plan on dissenting classes of creditors is generally known as ‘cross-class cramdown’. 289 E. R. Morrison and A. C. Saavedra, ‘Bankruptcy’s Role in the COVID-19 Crisis’ (2020) Columbia Law and Economics Working Paper No. 624, <www.ssrn.com/abstract=3567127>. 290 Some authors have even estimated the precise number of judges that would be needed to handle the wave of insolvency cases in some countries such as the United States. See B. C. Iverson, J. A. Ellias and M. J. Roe, ‘Estimating the Need for Additional Bankruptcy Judges in Light of the COVID-19 Pandemic’ (2020) 11 Harvard Business Law Review (forthcoming) <www.ssrn.com/abstract=3624529>. 291 E. R. Morrison and A. C. Saavedra (n 289). 288

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costs, including rent and salaries. For this reason, this measure needs to be complemented with financial assistance provided by the Government, perhaps in the form of wage subsidies, cash payouts and loans backed by the State.292 Finally, countries should promote the use of workouts and pre-insolvency proceedings as debt restructuring tools.293 On the one hand, the use of these procedures, generally involving a minimal or no intervention of courts will avoid a potential congestion of the judicial system. On the other hand, these procedures will provide companies unable to afford an insolvency proceeding (especially MSMEs) with a valuable tool to achieve a debt restructuring. Moreover, due to the concentrated debt structure generally existing in MSMEs, achieving a workout is much easier.294 Therefore, countries should encourage debtors and creditors to reach out-of-court agreements as a primary mechanism to solve a situation of insolvency generated by COVID-19. And even though promoting workouts can be desirable for any country affected by the COVID-19 pandemic, it will be even more relevant for emerging economies, due to the unattractiveness of their insolvency frameworks.295

Keeping the economy alive in a post-pandemic world Many companies are currently surviving the COVID-19 pandemic thanks to their reserves of cash and the legal and financial support provided by public authorities. At some point, however, companies will run out of cash, and they will need so survive without Governmental support. It will be then when the role of corporate insolvency law will become even more relevant in the current pandemic. Indeed, since many companies may not have the financial support and temporary protections provided by the Government, they may be exposed to enforcement actions by their creditors. For this reason, the initiation of an insolvency proceeding can help many companies preserve value. More importantly, since these companies will probably need new financing and an adjustment of their debt contracts, corporate insolvency law, at least in countries with efficiently insolvency frameworks such as Singapore, can help them achieve these goals.

292 This was actually the response in Singapore. See Aurelio Gurrea-Martinez, INSOL International and World Bank Group (n 284). 293 Aurelio Gurrea-Martinez and Samuel Loh, ‘Singapore’s Legal and Economic Response to the COVID-19 Crisis: The Role of Insolvency Law and Corporate Workouts’ (2020) 17(4) International Corporate Rescue <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3653059>. 294 Horst Eidenmüller, Luca Enriques and Kristin Van Zwieten, ‘COVID-19: A Global Moratorium for Corporate Bonds?’ (OXFORD BUSINESS LAW BLOG, 23 March 2020) <https://www.law.ox.ac.uk/business-lawblog/blog/2020/03/COVID-19-global-moratorium-corporate-bonds>. See also Aurelio Gurrea-Martinez and Samuel Loh (n 293). 295 Aurelio Gurrea-Martinez, ‘Insolvency Law in Emerging Markets’ (2020) Ibero-American Institute for Law and Finance, Working Paper 3/2020 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3606395>.

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Conclusion The world is facing the worst economic recession observed in modern times. In this context, corporate insolvency law is expected to play a major role in the current situation. Nonetheless, due to the limitations of insolvency law, out-court-restructurings should be promoted, and other legal and financial measures should be adopted by the Government. Still, the combination of an efficient insolvency framework and the promotion of workouts can keep many businesses alive not only during the worst part of the COVID-19 crisis but also in a post-pandemic world.

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13. Towards a data-driven financial system: The impact of COVID-19296 Nydia Remolina297

Introduction The COVID-19 outbreak has a growing impact on the global economy and the financial sector, which plays a critical role in mitigating the unprecedented macroeconomic and financial shock caused

the

pandemic.

Given

the

extraordinary

nature

the

current

crisis, financial regulators and supervisors, central banks, along with governments and legislatures face challenges to maintain financial stability, preserve the well-functioning core markets, and ensure the flow of credit to the real economy. The financial sector has not only implemented these regulatory measures but has also adapted to the new circumstances derived from the pandemic. In this process, the ongoing digital transformation of the financial industry helped to address some of the emerging challenges. 298 The first section of the paper describes the data-driven transformation of the financial services industry, a growing phenomenon within the fintech space. Even though the COVID-19 pandemic has slowed down our daily lives and stopped the operation of many industries, it did not have the same effect in the data-driven finance world. Traditional financial institutions and fintechs are trying to leverage data-driven solutions to respond to the challenges associated with the pandemic. For instance, data-driven financial companies are participating in the lending programmes launched by several governments for small businesses whereas in previous crises – such as the global financial crisis – only traditional institutions with traditional credit risk models participated in these programmes. This response is not unique to the financial sector. Health authorities are also leveraging data use for controlling the spread of the virus.299 The second section of the paper will present an overview of these data-driven finance initiatives that have been accelerated because of the pandemic.

This research is supported by the National Research Foundation, Singapore under its Emerging Areas Research Projects (EARP) Funding Initiative. Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not reflect the views of National Research Foundation, Singapore. 297 Research Associate, SMU Centre for AI and Data Governance. Adjunct Professor of Financial Regulation, Singapore Management University. 298 For more about how the digital financial infrastructure that emerged in the wake of the 2008 Global Financial Crisis is being, and can be, leveraged to overcome the immediate challenges presented by the pandemic and manage the impending economic fallout, see Arner et al., ‘Digital Finance & The COVID-19 Crisis’, (2020) University of Hong Kong Faculty of Law Research Paper No. 2020/017 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3558889>. 299 For more about data use in COVID-19 control see Mark Findlay & Nydia Remolina, ‘Regulating Personal Data Usage in COVID-19 Control Conditions’, (2020) SMU Centre for AI & Data Governance Research Paper No. 2020/04 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3607706>. 296

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The third section of the paper offers a speculative view of the future of data-driven finance in a post-pandemic world and how, despite being able to contribute to the recovery of the economy, also generates risks for consumer protection and financial stability. An adequate balance of different regulatory objectives will be crucial for a sustainable recovery in a post-pandemic financial industry.

The data revolution in the financial services industry Data has become of immense importance in the last years. Consider the amount of data that is being collected worldwide every day300, industries are reshaping their activities into a data-driven business. The datafication of almost any aspect of human social, political and economic activity arises as a result of the information generated by the numerous daily routines of digitally connected individuals and technology. The financial services industry is not isolated from this trend. This vast sea of data, that can now be stored, organised and made sense of for the industry, and a set of emerging tools and approaches could broadly be called data-driven finance and is already driving the next wave of innovation and optimisation in the financial sector.301 Embracing technology and data use allows incumbent financial institutions to disrupt their own business model, thus making the most out of the digital transformation. Financial institutions have access to enormous amounts of data, but due to multiple constraints this data is not yet sufficiently converted into useful insights.302 Financial institutions are not native to the digital landscape and have had to undergo a long process of conversion that has required behavioural and technological change. Thus, the financial sector is still on the path towards becoming a data-driven type of business. Financial institutions are on the road to adopt a datadriven approach to become more efficient.303 300 By 2020, about 1.7 megabytes a second of new information will be created for every human being on the planet. Thus, data is set to rise steeply to 44 zettabytes by 2020. To put that in perspective, if each Gigabyte in a Zettabyte were a brick, 258 Great Walls of China (made of 3,873,000,000 bricks) could be built. There are 931322574615.48 gigabytes in a zettabyte. See Garg et al., ‘Analytics in Banking: Time to realize the value’, (McKinsey & Company, 11 April 2017) <https://www.mckinsey.com/industries/financial-services/ourinsights/analytics-in-banking-time-to-realize-the-value>; Thomas Barnett, Jr., ‘The Zettabyte Era Officially Begins (How Much is That?)’, (Cisco Blogs, 9 September 2016) <https://blogs.cisco.com/sp/the-zettabyte-eraofficially-begins-how-much-is-that>. 301 See Garg et al. (n 300). 302 Joris Lochy, ‘Big Data in the Financial Services Industry - From data to insights’, (Finextra, 9 September 2019) <https://www.finextra.com/blogposting/17847/big-data-in-the-financial-services-industry---from-data-toinsights>. 303 Nearly all (97%) of financial services firms are making some sort of inroads on digital transformation— whether they’re in the process of developing a strategy or already implementing one. More than a fifth (21%) list developing a digital transformation strategy as their top digital priority. See ‘Digital Transformation in Financial Services’, (BDO, April 2019) <https://www.bdo.com/insights/industries/financial-services/digitaltransformation-in-financial-services>. Almost half of global financial services organizations are still in a very early or even immature stage of their digital transformation journey. Only 12% of financial services organizations are mature in their digital transformations and fall into the digital transformer cluster. Their top driver is disrupting

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We are also starting to see fully digital financial services providers.304 Financial companies and challengers are establishing a new data operating model focused on the role of data in the decision-making process. This new operating model relies on the use of the Internet of Things,305 Artificial Intelligence, 306 Machine Learning, 307 Cloud Computing 308 , Quantum Computing 309 and open architectures such as Open Banking310 to meet the demands of digital transformation. A broad range of applications in the financial system use these technologies. Indeed, they are the industry to unlock new areas for growth, enter new markets or create new revenue streams (like via data monetization). In this cluster, companies are more than doubling the rate of using data-driven technologies such as AI, or augmented analytics. See Laurence Goasduff, ‘The 5 Digital Transformation Identities of Financial Services Organizations’, (Gartner, 7 January 2019) <https://www.gartner.com/smarterwithgartner/the-5-digitaltransformation-identities-of-financial-services-organizations/>. 304 Neobanks are financial technology firms that offer internet-only financial services and lack physical branches. See Margarida Matos Rosa, ‘Achieving Competition in the Financial Sector’, (2018) 9(7) Journal of European Competition Law & Practice 421 <https://academic.oup.com/jeclap/article/9/7/421/5073306>. 305 The internet of things (IoT) is a catch-all term for the growing number of electronics that aren't traditional computing devices, but are connected to the internet to send data, receive instructions or both. The IoT brings the power of the internet, data processing and analytics to the real world of physical objects. See Josh Fruhlinger, ‘What is IoT? The internet of things explained’, (Network World, 13 May 2020) <https://www.networkworld.com/article/3207535/what-is-iot-the-internet-of-things-explained.html>. 306 The term “artificial intelligence” was coined in 1956 by John McCarthy. The Oxford English Dictionary defines AI as the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making and translation between languages. The Financial Stability Board defines AI as the theory and development of computer systems able to perform tasks that have traditionally required human intelligence. AI applications in the financial sector include algorithmic trading, portfolio composition and optimisation, model validation, back testing, robo-advising, virtual customer assistants, market impact analysis, regulatory compliance and stress testing. See Bonnie G. Buchanan, ‘Artificial intelligence in finance’, (The Alan Turing Institute, April 2019) <https://www.turing.ac.uk/sites/default/files/2019-04/artificial_intelligence_in_finance_-_turing_report_0.pdf> 307 Machine learning (ML) methods aim to learn from data. However, these methods are not guided by economic theory and are more about algorithms, rather than about asymptotic statistical processes. Traditional statistics highlights hypothesis testing and inference, whereas ML methods emphasise obtaining the best prediction. ML algorithms are categorised as either supervised learning or unsupervised learning. 308 Cloud computing is the on-demand availability of computer system resources, especially data storage and computing power, without direct active management by the user. See Stephen Orban, Ahead in the Cloud: Best Practices for Navigating the Future of Enterprise IT (CreateSpace Independent Publishing Platform 2018); Thomas Erl, Ricardo Puttini, Zaigham Mahmood, Cloud Computing: Concepts, Technology & Architecture (Prentice Hall 2013); Andy Kirk, Data Visualisation: A Handbook for Data Driven Design (SAGE Publications Ltd 2016). 309 Quantum computing is a relatively new field of research that studies the algorithms and systems that apply quantum phenomena to complex problems. It can potentially process data at speeds that are impossible for traditional computers. Looking ahead, ML is expected to have a far more powerful impact if it is combined with QC capabilities. See Buchanan (n 306); Marcos Lopez de Prado, ‘Financial Quantum Computing (Presentation Slides)’, (SSRN, 5 October 2016) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2848632> 310 Open banking is not a technology-based concept. involves opening up banking systems (functionality and customer data) to third parties to allow them to provide services directly to customers. In other words, open banking facilitates for customer data and functionality to be accessed by financial institutions and other thirdparty providers, transforming the relationship between traditional entities and customers. This access to data and functionality gives challenger banks, neobanks, fintechs and bigtechs the opportunity to develop new innovative financial products and services. It also provides traditional banks an ideal opportunity to improve their customer experience through the vast amounts of data they hold and/or the infrastructure they already built. See Nydia Remolina, ‘Open Banking: Regulatory Challenges for a New Form of Financial Intermediation in a Data-Driven World’ (2019) SMU Centre for AI & Data Governance Research Paper No. 2019/05 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3475019>.

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impacting the banking services,311 capital markets operations and products,312 insurance,313 fraud detection and compliance,314 marketing, and even the supervisory processes run by regulatory agencies.315 This intersection of finance and data generates benefits for the financial sector. It brings more competition that will ultimately benefit consumers, makes the system more efficient in terms of operation costs, might help financial services providers to meet their customers’ needs better and enhances their risk management.316 However, it also raises challenges and risks that regulators should adequately address317. These risks and challenges are not minor. They mostly relate to 311 Among the use of cases of data-driven technologies are credit scoring models using Artificial Intelligence or Machine Learning, Artificial Intelligence for stress testing, data analytics for marketing, open banking for integrating in the chain value payment services, chatbots and capital optimization models. See Samantha Barnes, ‘Banking and Big Data: the perfect match?’, (International Banker, 14 October 2019) <https://internationalbanker.com/banking/banking-and-big-data-the-perfect-match/>; Carlos Fernandez Naveira, Imke Jacob, Khaled Rifai, Pamela Simon, and Eckart Windhagen, ‘Smarter analytics for banks’ (McKinsey & Company, 19 September 2018) <https://www.mckinsey.com/industries/financial-services/our-insights/smarteranalytics-for-banks>; Remolina (n 310). 312 Examples of data-driven tech solutions in the capital markets are roboadvisors, portfolio management, market impact analysis and modelling of trading out of big positions, algorithmic trading. See Steven Maijoor, ‘New technologies within and beyond capital markets’ (European Securities and Markets Authority, 19 September 2018) <https://www.esma.europa.eu/sites/default/files/library/esma71-991036_steven_maijoor_keynote_new_technologies_within_and_beyond_capital_markets.pdf>; see also Financial Stability Board, ‘Artificial intelligence and machine learning in financial services: Market developments and financial stability implications’ (1 November 2017) <https://www.fsb.org/wp-content/uploads/P011117.pdf>; Financial Stability Board, ‘BigTech in finance Market developments and potential financial stability implications’ (9 December 2019) <https://www.fsb.org/wp-content/uploads/P091219-1.pdf>. 313 The insurance industry is using machine learning for pricing, marketing and managing insurance policies. See Accenture Insurance, ‘AI on the insurance frontline’, (Accenture Insurance Blog, 18 July 2017) <https://insuranceblog.accenture.com/ai-on-the-insurance-frontline>. 314 This is also known as RegTech. For instance, AI and machine learning are used to improve the Know Your Customer process, which is often costly, laborious, and highly duplicative across many services and industries. See Financial Stability Board, ‘BigTech in finance: Market developments and potential financial stability implications’ (n 312). 315 Supervisory technology (SupTech) is the use of innovative technology by supervisory agencies to support supervision. SupTech is currently found in two areas of applications: data collection and data analytics. Within data collection, applications are used for supervisory reporting, data management and virtual assistance. Examples include the ability to pull data directly from banks’ IT systems, automated data validation and consolidation, and chatbots to answer consumer complaints while collecting information that could signal potential areas of concern. Within data analytics, applications are used for market surveillance, misconduct analysis as well as microprudential and macroprudential supervision. Examples include detecting insider trading activities, money laundering identification, monitoring supervised entities’ liquidity risks and forecasting housing market conditions. See Dirk Broeders and Jermy Prenio, Innovative technology in financial supervision (suptech) – the experience of early users, Financial Stability Institute Insights on policy implementation No 9 (July 2018) <https://www.bis.org/fsi/publ/insights9.pdf>; Aurelio Gurrea-Martínez & Nydia Remolina, ‘Global Challenges and Regulatory Strategies to Fintech’ (2020) 36.1 Banking & Finance Law Review (forthcoming) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576506>. 316 See Dirk A. Zetzsche, Ross P. Buckley, Douglas W. Arner, Janos Nathan Barberis, ‘From FinTech to TechFin: The Regulatory Challenges of Data-Driven Finance’, (2017) 14.2 New York University Journal of Law and Business 393. 317 See Financial Stability Board, ‘Artificial intelligence and machine learning in financial services: Market developments and financial stability implications’ (n 312); Financial Stability Board, ‘BigTech in finance: Market developments and potential financial stability implications’ (n 312); Financial Stability Board, ‘Financial Stability Implications from FinTech: Supervisory and Regulatory Issues that Merit Authorities’ Attention’ (27 June 2017) <https://www.fsb.org/wp-content/uploads/R270617.pdf>; Basel Committee on Banking Supervision, ‘Sound

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financial stability due to new systemically important players that could fall outside the regulatory perimeter,318 cybersecurity, investor protection, consumer protection, competition, fairness, new and unexpected new forms of interconnectedness. The lack of interpretability or auditability of AI and machine learning methods could also become a macro-level risk for the financial sector. Similarly, a widespread use of opaque AI models may result in unintended consequences.319 The challenges related to how to translate the discussion about high-level principles of AI Governance is also important to mitigate some of these risks.320 Currently, regulators around the world, international setting bodies and academics discuss how to address those challenges what is the appropriate regulatory architecture to help shape the data revolution.321 However, it is not an easy task for regulators to address all these challenges and promote financial innovation. While trying to strike the right balance, regulators face unavoidable conflicts between policy objectives. 322 Moreover, the data revolution of the financial services industry, as well as other innovations, exacerbate the trade-offs between different regulatory objectives. Financial services are unbundled because of these innovations, supply chains and financial

intermediation

are

changing

traditional

forms

and

creating

new

levels

interconnectedness.323

Practices: Implications of fintech developments for banks and bank supervisors’, (Bank for International Settlements, February 2018) <https://www.bis.org/bcbs/publ/d431.pdf>. 318 For example, cloud services providers. See Nydia Remolina, ‘Cloud Computing in financial services: Redefining Systemic Risk’, SMU Centre for AI & Data Governance Research Paper (forthcoming). 319 Financial Stability Board, ‘BigTech in finance: Market developments and potential financial stability implications’ (n 312). 320 Some financial regulators are debating how to approach this discussion. For instance, the Monetary Authority of Singapore issued a set of principles to promote Fairness, Ethics, Accountability and Transparency (FEAT) in the Use of Artificial Intelligence and Data Analytics in Singapore’s Financial Sector. Now the regulatory authority is working closely with the tech and financial industries to translate these high-level principles into specific recommendations applicable to some use data-driven applications in the financial sector. This initiative is called Veritas. The first phase will commence with the development of fairness metrics in credit risk scoring and customer marketing. See Monetary Authority of Singapore, ‘Principles to Promote Fairness, Ethics, Accountability and Transparency (FEAT) in the Use of Artificial Intelligence and Data Analytics in Singapore’s Financial Sector’ (2018) <https://www.mas.gov.sg/~/media/MAS/News%20and%20Publications/Monographs%20and%20Information% 20Papers/FEAT%20Principles%20Final.pdf>; Monetary Authority of Singapore, ‘MAS Partners Financial Industry to Create Framework for Responsible Use of AI’ (13 November 2019) <https://www.mas.gov.sg/news/media-releases/2019/mas-partners-financial-industry-to-create-framework-forresponsible-use-of-ai>. 321 See Johannes Ehrentraud, Denise Garcia Ocampo, Lorena Garzoni, Mateo Piccolo, ‘Policy responses to fintech: a cross-country overview’, Financial Stability Institute on policy implementation No 23 (July 2020) <https://www.bis.org/fsi/publ/insights23.pdf>. 322 See Chris Brummer & Yesha Yadav, ‘Fintech and the Innovation Trilemma’, (2019) 107 Georgetown Law Journal 235 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3054770>. 323 See Brummer & Yadav (n 322); Remolina (n 318); Remolina (n 310).

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The evolution of data-driven finance during the pandemic Even though the COVID-19 pandemic has slowed our daily lives and stopped the operation of many industries, it did not have the same effect in the data-driven finance world. Not only did health authorities in many jurisdictions leveraged the control of the pandemic with data-driven initiatives,324 but the financial sector and fintech companies are also finding ways to use data to respond to the demands of the economy in these uncertain times. This section shows how some cases of usage of data-driven fintech accelerated because of the pandemic.

Data-driven lending to help Small and Medium Enterprises (SMEs) Small and Medium Enterprises (SMEs) play a major role in most economies, particularly in developing countries. SMEs account for the majority of businesses worldwide and are important contributors to job creation and global economic development. They represent about 90% of businesses and more than 50% of employment worldwide.325 Formal SMEs contribute up to 40% of national income (GDP) in emerging economies.326 In emerging markets, most formal jobs are generated by SMEs, which create 7 out of 10 jobs. 327 However, access to finance is a key constraint to SME growth. The International Finance Corporation (IFC) estimates that 65 million firms, or 40% of formal micro, small and medium enterprises (MSMEs) in developing countries, have an unmet financing need of $5.2 trillion every year, which is equivalent to 1.4 times the current level of the global MSME lending. East Asia and the Pacific accounts for the largest share (46%) of the total global finance gap and is followed by Latin America and the Caribbean (23%) and Europe and Central Asia (15%).328 Additionally, the pandemic has severely impacted small businesses around the world. Businesses are facing unprecedented economic disruption, losses, and are compelled to adapt to new ways of working.329 With these unforeseen challenges, governments are offering financial assistance in the form of relief loan packages, designed to help small businesses navigate the crisis.330 Most of

324 See Findlay & Remolina (n 299). 325 See The World Bank, ‘Small And Medium Enterprises (SMEs) Finance Improving SMEs’ access to finance and finding innovative solutions to unlock sources of capital’ <https://www.worldbank.org/en/topic/smefinance> accessed 20 July 2020. 326 These numbers are significantly higher when informal SMEs are included. See ibid. 327 ibid. 328 ibid. 329 See OECD Centre for Entrepreneurship, SMEs, Regions and Cities, ‘Coronavirus (COVID-19): SME policy responses’ (15 July 2020) <http://www.oecd.org/coronavirus/policy-responses/coronavirus-covid-19-smepolicy-responses-04440101/> accessed 20 July 2020. 330 ibid.

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these packages are allocated through banks around the world. Regulators have also decided to allow banks to use their capital buffers to provide more liquidity to the economy in forms of loans.331 Consequently, banks are getting inundated with a massive volume of loan application requests from small businesses, all of which must be reviewed and approved in a short time. Processing of loan application requests involves multiple steps, from loan underwriting to verification checks and approvals.332 There also needs to be a mechanism to authenticate the small business enterprises applying for the loan, by extracting critical data needed for approving the loan application. The failure to process loan application requests on time leads to a huge backlog, customer dissatisfaction and a negative impact in the recovery of economies. In some countries, traditional banks have been criticized because of their slow response to COVID-19, particularly in relation to lending issues.333 To address this issue, some jurisdictions 334 allowed non-bank online lenders that use Artificial Intelligence and Machine Learning models for lending and credit scoring to participate in these programs. For the first time in this type of programs, regulators in the United States approved some fintech companies to participate in the program by helping small businesses that may not have an established lending relationship with a large bank, community bank or credit union. Additionally, the fintech firms through automation and technology believe they will be able to process applications much more quickly. This puts fintech firms, and particularly data-driven lenders in a spot they were not in before. This is the first economic crisis in which they will be able to demonstrate how beneficial these new business models can be for the economic recovery. In Asia, even though some young SMEs use crowdlending platforms and other types of online lenders to access finance, they have become the main source of credit for many highly vulnerable small businesses. Asian online lenders raised more than US$4 billion in 2017 and 2018, with Indian and Indonesian companies being most prominent. However, the pandemic has drastically changed the landscape for the online lending industry. Alternative lending companies and platforms across See Nydia Remolina, ‘Financial Regulators' Responses to COVID-19’, (2020) Iberoamerican Institute for Law and Finance Working Paper Series 1/2020 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3554557>. 332 Some media outlet reported that some banks could take two hours to collect this information and sometimes weeks to verify the information of applicants who were not existing lending customers. See Donna Fuscaldo, ‘As COVID-19 Lenders, PayPal, Square, Other Fintechs Get To Prove They Can Do It Better Than Banks’ (Forbes, 15 April 2020) <https://www.forbes.com/sites/donnafuscaldo/2020/04/15/as-covid-19-lenders-paypal-squareother-fintechs-get-to-prove-they-can-do-it-better-than-banks/#8dd1202587a4>. 333 For example, China’s traditional banking sector. See Arner et al. (n 298). 334 For instance, the United States with the creation of the Paycheck Protection Program, which helps businesses secure forgivable loans and keep workers employed. See U.S. Small Business Administration, ‘Paycheck Protection Program’ (2020) <https://www.sba.gov/funding-programs/loans/coronavirus-reliefoptions/paycheck-protection-program> accessed 20 July 2020. 331

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Asia are scrambling to raise funds and stave off bankruptcy as they face a wave of bad loans.335 Online lenders that fall outside the traditional bank regulations have fewer requirements in many markets about how much capital they must have on hand. That makes them more vulnerable to a wave of defaults. Asia-focused banks, as well as most banks in jurisdictions that follow Basel Committee recommendations, have taken greater provisions against non-performing loans since the global financial crisis, but alternative online lenders are worse off than their traditional competitors. Another consequence of the pandemic that has accelerated data-driven lending impact is the creation of new partnerships between banks and fintech companies. Indeed, models are being reevaluated to make them more flexible and more adaptive to the businesses. For example, some companies are working to promote their QR code contactless payment services, which allow SMEs to conduct sales while mitigating health risks due to COVID-19.336 This transactional data will allow fintechs and other institutions with access to that transactional data to enrich their credit risk models, especially in a sector that lacks access to traditional finance information concerning loan applications. Particularly in Mexico, fintechs are becoming a leading growth partner to SMEs through transactional data which helps them understand the needs and demands of clients.337 Data is key because it also helps in understanding which sector and clients will recover the fastest. This in return, is important for fintech to prioritize loan provision.338 Finally, the data-driven finance evolution of the lending landscape is not only related to fintechs. Banks are also playing an important role. Through partnerships with associations that represent specific industry segments, banks in Asia are understanding the particular problems and needs of that sector and identifying innovative products and services where they could play a meaningful

335 See ‘Covid-19 brings Asia’s booming online lending sector to juddering halt’, (MalayMail, 3 June 2020) <https://www.malaymail.com/news/money/2020/06/03/covid-19-brings-asias-booming-online-lending-sectorto-juddering-halt/1871920>. 336 See Celine Bteish & Marie-Sarah Chataing, ‘COVID-19: Digital Finance Models to the Rescue of SMES in Latin America’, (SME Finance Forum Blog, 4 June 2020) <https://www.smefinanceforum.org/post/covid-19digital-finance-models-to-the-rescue-of-smes-in-latin-america>. 337 ibid. 338 Even though, it is important to note that not all jurisdictions have implemented this type of prudential regulatory requirements for fintechs.

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role. 339 Through these partnerships, banks and fintechs are offering payment solutions for businesses that were not using e-commerce platforms.340

Financial inclusion Lockdowns and social distancing are accelerating the digitalization of many sectors, including financial services. Just as the SARS epidemic in 2003 expedited China’s path in launching digital payments and e-commerce in the country, 341 some countries are taking steps to facilitate the massive use of digital financial services, especially digital payments. Digital payments are now a backbone to China’s vibrant digital economy and its development highly influences data-driven initiatives.342 Contactless payments to taxi drivers, vendors and even temples and beggars are possible through scanning a QR code. Payments for daily essentials, such as mobile phone bills, utilities, rent or internet fees, can all be made through mobile payments or online banking in China. Governments at all levels there also accept mobile payments as a payment method. Digital payments in China have almost become a public good and are definitely a key factor in data-driven finance.343 Data and analytics is becoming the foundation of effective business decision making. In most countries digital payments services are evolving into digital lending, as companies accumulate users’ data and develop new ways to use it for credit worthiness analysis.344 Many countries345 are replicating this model in similar ways and supporting this shift with measures such as lowering fees and increasing limits on mobile money transactions.346 During the COVID 339 For example, DBS is working with the Restaurant Association of Singapore, as the Food and Beverage (F&B) industry was losing 30-80% of revenues due to quarantine restrictions - yet their operating costs remained the same. Compounding those problems was the fact that established food delivery platforms were charging restaurants 30-33% commission on the total bill, thereby significantly narrowing profit margins for restaurants. To address this issue, DBS partnered with the government of Singapore and two homegrown fintech companies, Oddle and FirstCom, to roll out a Digital Relief Package for the F&B industry. Specifically, they enabled F&B businesses to set up an online food ordering site in just three days with much-reduced delivery rates. As a result, DBS enabled SMEs to quickly create additional online channels in order to increase revenue. See Jade Hachem & Gillette Conner, ‘COVID-19 - A Catalyst for Digital Transformation in the SME Lending Ecosystem’ (SME Finance Forum Blog, 23 April 2020) <https://www.smefinanceforum.org/post/covid-19-a-catalyst-for-digitaltransformation-in-the-sme-lending-ecosystem>. 340 See Shivraj Rajendran, ‘Bank aims to help F&B clients draw online customers’ (The Straits Times, 26 March 2020), available at: https://www.straitstimes.com/business/bank-aims-to-help-fb-clients-draw-online-customers 341 See Yan Xiao & Martin Chorzempa, ‘How digital payments can help countries cope with COVID-19, other pandemics: Lessons from China’ (World Economic Forum, 6 May 2020) <https://www.weforum.org/agenda/2020/05/digital-payments-cash-and-covid-19-pandemics/>. 342 See Bank for International Settlements, ‘Big tech in finance: opportunities and risks’, (BIS Annual Economic Report, 23 June 2019) <https://www.bis.org/publ/arpdf/ar2019e3.htm>. 343 See Pricewaterhouse Coopers, ‘How Fintech is Shaping China’s Financial Services?’ (2018) <https://www.pwccn.com/en/research-and-insights/how-fintech-is-shaping-china-financial-services.pdf>. 344 See Eriksson von Allmen et al., ‘Digital Financial Inclusion in the Times of COVID-19’ (International Monetary Fund Blog, 1 July 2020) <https://blogs.imf.org/2020/07/01/digital-financial-inclusion-in-the-times-ofcovid-19/>. 345 Mostly located in Africa, Asia and Latin America. See ibid. 346 ibid.

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19 lockdowns, digital financial services are enabling governments to provide quick and secure financial support to people and businesses, 347 as demonstrated in Namibia, Peru, Colombia, Zambia, and Uganda.348 In many of these jurisdictions, payment service providers were used to disburse government subsidies to people that did not use a digital financial channel before.349 This is expected to help mitigate the economic fallout and potentially strengthen the recovery. The pandemic shows that the trend towards greater digitalization of financial services is here to stay.

Going digital and customer experience The pandemic has pushed financial institutions to significantly go digital. However, this transition to be a fully digital company in most cases requires regulatory changes. Accordingly, the Financial Action Task Force (FATF) issued a set of measures to combat illicit financing, and encouraged the use of the flexibility built into the FATF’s risk-based approach to address some COVID-19 related challenges such as digital onboarding and simplified due diligence for Know Your Customer processes.350 Regulation plays a critical role in enabling the transition to a digital environment. As mentioned, some countries have maintained more restrictive regulations on consumer data protection, especially when it comes to cloud acceptance and e- Know Your Customer and AntiMoney Laundering practices. Dissimilar regulatory regimes have been extremely challenging for digital lenders which have tried to promptly implement a uniform action plan across various markets. The pandemic has driven regulators to re-think their approaches to better facilitate the change into a digital experience. Additionally, due to mobility restrictions of quarantines and lockdowns, financial institutions have been challenged to help address customer concerns in multiple channels such as online chats. Hence, digital banking, specifically “conversational banking”, seem to have permanent uptrend in this period. Conversational platforms powered by Artificial Intelligence are increasing. The rise in the number of users and the dialogues in live chatbots have been reported by some technology companies. A company that partners with financial institutions to develop chatbots in Turkey and the United States reported that the number of users and messages has increased 5.4 and 3.9 times respectively in the banking chatbots since the outbreak of COVID-19. 351 The frequently 347 See Nana Yaa Boakye-Adjei, ‘Covid-19: Boon and bane for digital payments and financial inclusion’, (Financial Stability Institute Briefs No. 9., July 2020) <https://www.bis.org/fsi/fsibriefs9.pdf>. 348 See Eriksson von Allmen et al. (n 344). 349 See Narain et al., ‘CICO Agents: The under-valued “first responders’ (MicroSave Consulting, 15 April 2020) <https://www.microsave.net/2020/04/15/cico-agents-the-under-valued-first-responders/>. 350 See Financial Action Task Force, ‘Statement by the FATF President: COVID-19 and measures to combat illicit financing’ (1 April 2020) <https://www.fatf-gafi.org/publications/fatfgeneral/documents/statement-covid19.html> accessed 20 July 2020. 351 See ‘Covid-19 and Rise of Conversational Banking’ (CBOT, 2020) <https://www.cbot.ai/covid-19-andconversational-banking/> accessed 20 July 2020.

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asked questions concern loan application, credit payment delay, online banking password setting and request. As more financial institutions turn to data-driven solutions to manage credit risk, they must not forget that numbers alone would not help their most important stakeholders ‒ their customers ‒ to be at peace. By being data-driven while putting human connection at the centre, banks can better fulfil their commitment of helping the whole economy rise from this historic challenge.

Central Bank Digital Currencies The debate around the creation of Central Bank Digital Currencies (CBDCs) was surprisingly accelerated by the pandemic in some jurisdictions, such as the United States and China. Millions of United States taxpayers have waited for weeks for promised stimulus payments of up to $1,200 per person as a result of one of the measures taken to help people to navigate the COVID-19 crisis. While some received direct deposits in mid-April, those without bank accounts or a bank account on file with the Internal Revenue Service, who have not received a tax refund in recent years or who are married to an immigrant are still expecting that a check will arrive. Supporters of digital dollars and CBDCs say a digitized monetary system could solve the logistical question of how to quickly disburse large sums to many individuals with varying access to banking services.352 The Bank of China has recently completed the basic function development of a digital Yuan and it has moved one step closer to launch its CBDC during a middle of global recession. A number of Shenzhen-based private companies including Alibaba, Tencent, Huawei and China Merchants Bank have participated in the development of the digital currency. As central banks around the world are cutting interest rates to zero and taking aggressive action against the economic recession due to the COVID-19 pandemic, China’s central bank is accelerating its CBDC plan and for some, turning these challenging times into an opportunity given that the digital asset is seen as the most convenient tool to translate a central bank's zero and negative interest rate policy into commercial banks.353 According to the Bank for International Settlements (BIS), irrespective of whether health concerns are justified or not, perceptions that cash could spread pathogens may change payment behaviour See Meena Thiruvengadam, ‘How the COVID-19 Crisis Revived the Digital Dollar Debate’ (Coinbase, 8 May 2020) <https://www.coindesk.com/coronavirus-what-is-digital-dollar-cbdc-explainer>. 353 See Ting Peng, ‘Turning a Crisis Into an Opportunity, China Gets One Step Closer to CBDC’ (Cointelegraph, 24 March 2020) <https://cointelegraph.com/news/turning-a-crisis-into-an-opportunity-china-getting-one-stepcloser-to-cbdc>. 352

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by users and firms.354 In any case, and regardless of the motive behind it, digital payments are trending in the pandemic. However, the BIS raised some concerns about the distributional consequences of any move away from cash. If cash is not generally accepted as a means of payment, this could open a ‘payments divide’ between those with access to digital payments and those without. This in turn could have an especially severe impact on unbanked and non-digital consumers (generally the most vulnerable with no access to digital infrastructure and the elderly). Thus, resilient and accessible central bank-operated payment infrastructures could quickly become more prominent, including retail CBDCs.355

The challenging, yet promising, future of data-driven finance in a post-pandemic world An inclusive recovery through data analytics and artificial intelligence Policymakers must promote an inclusive recovery, one that benefits all segments of society. Governments around the world have deployed extraordinary policy measures to save lives and protect livelihoods. These include extra efforts to protect the poor, with many countries stepping up food aid and targeted cash transfers. Globally, fiscal actions so far amount to about $10 trillion.356 But given the severity of the crisis, significant further efforts are essential. This includes taking the measures needed to avoid a scarring of the economy, including from job losses and higher inequality. It is clear that increasing access to opportunities is now more critical than ever if we are to avoid persistent increases in inequality. The data-driven finance, if adequately deployed, can contribute to this inclusive recovery. A key priority must be to broaden the access of low-income households and small businesses to financial products. However, reaching the most vulnerable can be challenging in developing economies, where nearly 70% of employment is informal.357 But this is where data-driven finance might help. Traditional lending has not solved the problem of lack of access to credit for SMEs and does not fit with the reality of today’s SMEs. In Nigeria, for example, fewer than 7% of SMEs have ever

354 See Raphael Auer, Giulio Cornelli and Jon Frost, ‘Covid-19, cash, and the future of payments’ (Bank for International Settlements, 3 April 2020) <https://www.bis.org/publ/bisbull03.pdf>. 355 ibid. 356 See Kristalina Georgieva, ‘The Global Economic Reset—Promoting a More Inclusive Recovery’ (International Monetary Fund Blog, 11 June 2020) <https://blogs.imf.org/2020/06/11/the-global-economic-resetpromoting-a-more-inclusive-recovery/>. 357 ibid.

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taken out a formal loan, and SME loan requests under $50,000 are rarely approved. 358 The traditional lending model is based on financial systems in which lenders have access to a host of positive and negative data on a credit report – and although the situation is improving, credit scoring is hard to find for some markets and potential debtors. Even if an SME can produce audited financial statements, tax returns and five-year projections, the chance of a traditional loan in some jurisdictions remains low.359 As we mentioned, COVID-19 affected SMEs around the world and governments, financial institutions and fintech are joining efforts help in this situation. Enhancing credit risk management through data initiatives will be crucial in the post-pandemic world. In the post-pandemic world, the lending ecosystem will have to work towards 4 goals that might help enhance credit risk management effectively. First, building a dynamic credit decisioning framework and credit scores that incorporates the potential impact of the pandemic is key. The traditional credit scoring may need to be remodelled to take into account the potential impacts of the pandemic and to include additional information about those potential lenders that are not yet included in traditional databases, for example by using alternative data. This approach will help Artificial Intelligence and Machine Learning to score more adequately the credit risks of borrowers. Second, banks and digital lenders will have to deal with the fact that the crisis will dramatically increase non-performing loans, despite temporary relief from strict regulations and with massive liquidity help from central banks. Restructuring in the sector will accelerate. An open question is whether surviving incumbents will move ahead or if powerful new players - such as Big Tech - will enter the sector with force, transforming the incumbents. Third, a targeted approach in redesigning loan terms or products for existing borrowers is needed. The potential impact of the pandemic would not only be different among sectors but even among borrowers within sectors. In redesigning the terms for existing borrowers, the intervention can be targeted to individual accounts by considering borrower-specific characteristics and circumstances such as age, employment status, industry employed in, credit history, COVID-19 cases in their province/city, among others. A similar approach can be done to corporate clients. For example, a borrower owning a restaurant is different than a borrower that is a bank. Even borrowers in the same sector might differ a lot considering factors such as the location of the business. Machine

See Tunde Kehinde & Ercin Eksin, ‘How fintech can help SMEs recover from the impact of COVID-19’, (World Economic Forum, 12 May 2020) <https://www.weforum.org/agenda/2020/05/fintech-can-help-smesrecover-covid-19/>. 359 ibid. 358

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learning models used for clustering debtors may enable this targeted approach in redesigning terms. However, it is important to address the potential challenges that these theoretical benefits of enhancing credit risk management effectively through data analytics and artificial intelligence represent. The use of Artificial Intelligence and Machine Learning for credit scoring and credit risk management comes with critical challenges associated with fairness and discrimination in credit lending practices that regulators need to rapidly address. These policy conversations are much needed for the post-pandemic world, especially taking into consideration that outside of the technology sector, the financial services industry is the biggest spender on Artificial Intelligence services and is experiencing very fast growth. This trend has not changed with the COVID-19 crisis.360 Currently, we are starting to witness the first cases of discrimination and unfair lending practices that can not only affect borrowers directly, but also create negative externalities and even compromise the stability of the financial system. For instance, the Australian Securities and Investments Commission decided in July 2020 that it will not appeal the dismissal of its case against a fintech called Westpac. Instead, it will review its existing guidance on responsible lending and recommend legislative reforms. Westpac was charged in 2017 for having improperly assessed whether loans were suitable for customers (between 2011 and 2015). The Federal Court ruled that Westpac’s use of the Household Expenditure Measure benchmark was compliant with responsible lending laws, despite it representing a low-end estimate of the spending habits of Australian families.361 This could be a good opportunity for Australian regulators to review how they should target fair lending practices and the use of data and Artificial Intelligence in lending. It is a much needed policy discussion in all jurisdictions though.

Online lenders and digital payments vulnerability On the one hand, online small-business lenders have become the main source of credit for many companies, especially for SMEs and highly vulnerable small businesses. However, currently online lenders are paralyzed because they cannot access funding on which their business depends. As a result, they are scaling back – just when their services are most needed.362 An online lender is no different from a finance company that needs to borrow in the capital markets and lend that 360 See Buchanan (n 306). 361 See Australian Securities and Investments Commission, ‘20-166MR ASIC will not appeal Federal Court decision on Westpac’s ‘responsible lending’ obligations’ (22 July 2020) <https://asic.gov.au/about-asic/newscentre/find-a-media-release/2020-releases/20-166mr-asic-will-not-appeal-federal-court-decision-on-westpac-sresponsible-lending-obligations/>. 362 See Todd H. Baker & Kathryn Judge, ‘How to Help Small Businesses Survive COVID-19’ (2020) Columbia Law and Economics Working Paper No. 620 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3571460>.

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money to customers. When funding in the capital markets is unavailable or very expensive, a finance company quickly hits the wall and cannot provide new credit to its customers. 363 The marketplace lending business model of many online lenders only exacerbates the crisis funding problem. That means online small-business lenders need governmental help, in the short and medium-term, to rescue their customers and then to play a meaningful role in any small business credit and economic recovery. 364 This is something to take into account in the post-pandemic world: recognize the different approaches that digital lending – specially provided by small lenders – needs in order to achieve the complicated balance between innovation, financial system stability and access to finance. On the other hand, regarding payment services providers, regulators need to think about that as in most jurisdictions they are not regulated under the same rules that apply to traditional financial institutions, and accordingly, they do not have access to liquidity management support. In India, for example, service providers are incurring additional costs related to liquidity management due to the upsurge in cash-out transactions in rural areas. Several factors have made rebalancing cash difficult. These include the sudden demand for cash, restrictions on movement and long distances to cover. The distance to bank branches that are often as far as 10-12 kilometers, the shutting down of public transport, and a lack of personal transport options for agents make things even harder. Agents have even reported reducing their investment in liquidity to use the money and feed their families.365

New-gen loan sharks? Digital lending platforms could help a lot in the post-pandemic world. However, evidence and recent experiences in some jurisdictions such as India, the Philippines, and some African countries show that desperate times make people vulnerable. In some countries, digital lenders are characterised for doing a very quick disbursal of loans.366 However, digital lenders are changing high interest rates and performing practices that make people dependent on these platforms. In the post-pandemic world, regulators need to diligently deter these practices. There are thousands of customers worldwide who have fallen prey to such lending platforms which are misusing data, overcharging customers and taking advantage of the digital illiteracy. 367 If not adequately addressed, financial inclusion can have a dark side.

363 ibid. 364 ibid. 365 See Narain et al. (n 349). 366 Prabhu Mallikarjunan, ‘How app-based lenders are harassing, sucking borrowers dry’ (The Federal, 11 June 2020) <https://thefederal.com/the-eighth-column/how-app-based-lenders-are-harassing-sucking-borrowersdry/>. 367 ibid.

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From open banking to open data As mentioned, the COVID-19 pandemic has impacted SMEs more than the 2008 financial crisis. Open banking initiatives such as the use of Application Programming Interface (API) for data sharing in the post-pandemic world can be crucial to boost lending to the real economy. However, the current regulatory models that target open banking might fall short to address the postpandemic challenges. Hence, moving the conversation from open banking to open data and the use of open APIs to harness data collected by banks, and also data from other data sources (contextual accounting data, supply chain data and transactional data) will facilitate sound lending decisions to help the real economy by developing new products driven by data and built around the SME’s dynamic credit requirements after COVID-19. 368

Data challenges for regulatory agencies As fintech transforms the financial sector, it also opens up data gaps in central bank statistics. It does so by introducing new financial products, and bringing existing services to a larger market. Data gaps are currently prevalent as (internationally comparable) information on fintech is lacking in official statistics. To understand innovation, qualitative information, information on evolving structures, and harmonised time series are needed.369 In the post-pandemic world, central banks and financial regulators will need to close this gap and develop a comprehensive process to continuously monitor the situation and address fintechrelated data issues that may arise.

The role of standard-setting bodies Fintech and, therefore, data-driven innovations in the financial sector exacerbate the difficulties of standard setting in international financial regulation. 370 Reliance on automation and Artificial Intelligence, novel types of big data, the use of disintermediating financial supply chains, and the interconnectedness with technology companies and third-party services providers all complicate the balancing of different regulatory objectives.371

368 For more about the concepts of open banking and open data see Remolina (n 310). 369 See IFC Working Group on Fintech Data Issues, ‘Towards monitoring financial innovation in central bank statistics’ (Irving Fisher Committee on Central Bank Statistics, July 2020) <https://www.bis.org/ifc/publ/ifc_report_monitoring_financial_innovation.pdf>. 370 See Yesha Yadav, ‘Fintech and International Financial Regulation’, (2020) 53 Vanderbilt Journal of Transnational Law 1110. 371 See Brummer & Yadav (n 322).

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In the post-pandemic world, this challenge might be exacerbated. Innovative algorithms will introduce informational uncertainties and complex risks for market integrity. Further, regulation’s ability to impose compliance costs on firms in response to these risks is limited when a preference for innovation favours smaller upstarts and non-traditional players.372 International debate is much needed in this space in order to prevent a financial crisis derived from exacerbated risks, especially considering that in the post-pandemic world, data-driven finance will no longer be an innovation, but a mainstream development.

Conclusion The COVID-19 outbreak has a growing impact on the global economy and the financial sector, which plays a critical role in mitigating the unprecedented macroeconomic and financial shock caused

the

pandemic.

Given

the

unprecedented

nature

the

current

crisis, financial regulators and supervisors, central banks, along with governments and legislatures face challenges to maintain financial stability, preserve the well-functioning core markets, and ensure the flow of credit to the real economy. Even though the COVID-19 pandemic has slowed down our daily lives and stopped the operation of many industries, it did not have the same effect in the data-driven finance world. The digital transformation of the financial services industry and financial technologies (fintech) have contributed to face some of the challenges of the pandemic. Traditional financial institutions and fintechs are trying to leverage on data-driven solutions to respond to the challenges associated with the economic crisis derived from the pandemic. Despite the potential benefits of this transformation, the future of data-driven finance in a post-pandemic world looks challenging. An adequate balance of different regulatory objectives will be crucial for a sustainable recovery in a post-pandemic financial industry.

372 Yadav (n 370).

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(C)

Surveillance, discrimination or protection?

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14. Coronavirus: Pandemics, artificial intelligence and personal data: how to manage pandemics using AI and what that means for personal data protection Warren Chik373 Artificial intelligence in managing and containing the spread of infectious diseases We are living in a new reality with the COVID-19 pandemic across the globe, which provides an entirely new environment and context in which the data protection principles operate. Artificial Intelligence (AI) and other forms of data collection are highly useful, and may in fact be integral to the fight against the pandemic. AI can facilitate early detection of, and preemptive action against, the onset and spread of viruses and other infectious diseases generally and within any geographical location. AI can also lead to better and more efficient testing, the development of a vaccine and a cure as well as more effective health management on a massive scale. First, AI can be used to track the genesis or source of infectious diseases as they may emerge and its spread in terms of speed and geography. This can trigger action by early responders and restrict its spread through containment and with a view to its eradication. AI can also provide advance notice for preparedness measures by relevant institutions, in particular, hospitals and other healthcare agencies. For example, BlueDot’s outbreak risk software is an AI platform that uses natural language and machine learning algorithms to sieve through information, including personal data, from a variety of sources with a view to early detection. 374 BlueDot then alerts governments, hospitals and businesses thereby providing advance notice. Early predictions are done through a mapping of relevant information from sources such as news reports, social media and travel data, some of which may be proprietary and even sensitive data. Second, AI can also be used to track human movement and traffic, which is a primary focus for containment once the virus is in the community. Of course, contact tracing is a key objective, but there are other uses for such data as well, such as in determining the effectiveness or otherwise Associate Professor of Law, Singapore Management University. This article was originally published in the Singapore Law Gazette (2020, May Issue). 374 BlueDot <https://bluedot.global/>. See also Metabiota, which uses health-care and news reports; and Stratifyd, which uses social media postings. See also Cory Steig, ‘How This Canadian Start-Up Spotted Corovirus Before Everyone Else Knew About It’ (CNBC, 3 March 2020) <https://www.cnbc.com/2020/03/03/bluedot-usedartificial-intelligence-to-predict-coronavirus-spread.html>; and Aaron Pressman, ‘How AI is Aiding the Coronavirus Fight’ (Fortune, 16 March 2020) <https://fortune.com/2020/03/16/ai-coronavirus-healthtechnology-pandemic-prediction/>. 373

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of social distancing measures. AI can be used for contact tracing investigations by drawing patterns from a collection of personal data derived from, for example, surveillance footages and location tracking devices. Even regular Internet of Things (IoT) devices that is often with a person can be modified or enhanced to do this, including the mobile phone and wearable gadgets like smart watches and activity trackers like Fitbit, whether through the inclusion of an app or a software update. For example, Singapore’s TraceTogether was developed by Singapore’s GovTech Singapore, 375 a public agency, which uses Bluetooth to identify human to human contact and interaction.376 Similar types of apps can be developed to further not only contact tracing but also to encourage social distancing, such as an app that will vibrate or sound when a person is within 1 metre of another for more than a few seconds and that can provide a variety of settings for more efficient uses (such as to ‘silence’ these alarms if a related person such as a family member or spouse is detected). Policing and enforcement of containment measures like social distancing regulations can also be done through AI (such as through surveillance using robotic agents) during a health crisis where human interaction and movement must be circumscribed in order to contain and control the spread of a disease within a community and to protect law enforcement officers from the risks of direct contact. Third, AI can be in the form of a diagnostic tool or used to develop a vaccine, but this is still nascent and will take time in a race that is often won, at least in the early battles of the war, by a newly evolved virus.377 One example of the former is Nanox, a medtech company that developed the mobile digital X-ray “Nanox System” that can diagnose viral infections early through the use of cloud-based software, which can in turn reduce the risk of an outbreak reaching a pandemic, or even an epidemic level.378 Certainly, identifying potential carriers of the virus, and risk assessment of persons in contact with them, is an essential part of containment efforts; and as such, personal data collection and processing (as well as sharing) is necessarily involved. Early detection must include personal information as one of the mitigating measures is to identify and quarantine the infected to prevent further spread of the disease. Hence, one of the main impediments to the effectiveness of AI in battling the spread of infectious diseases is the lack of use of personal data. Access to personal data can provide an even more detailed and accurate picture of the inception and spread of a virus. However, the private 375 GovTech Singapore <https://www.tech.gov.sg/>. 376 TraceTogether <https://www.tracetogether.gov.sg/>. 377 Will Douglas Heaven, ‘AI Could Help With The Next Pandemic – But Not With This One’ (MIT Technology Review, 12 March 2020) <https://www.technologyreview.com/s/615351/ai-could-help-with-the-nextpandemicbut-not-with-this-one/>; and Ben Dickson, ‘Why AI Might be the Most Effective Weapon We Have to Fight COVID-19’ (The Next Web, 21 March 2020) <https://thenextweb.com/neural/2020/03/21/why-ai-might-bethe-most-effective-weapon-we-have-to-fight-COVID-19/>. 378 Nanox <https://www.nanox.vision/>. See also Simon Chandler, ‘How AI May Prevent The Next Coronavirus Outbreak’ (Forbes, 5 March 2020) <https://www.forbes.com/sites/simonchandler/2020/03/05/how-ai-willprevent-the-next-coronavirus-pandemic/#24b072c74ac6>.

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companies that require such data often do not have the justification or the authority to obtain them prior to a national emergency and without the cooperation of public and/or private institutions that may hold that information (e.g. collected through public surveillance or as part of a person’s personal health data). By the time there is a legitimate reason and legal basis for access, such as one based on public security and health justifications, that will be after early detection is done by the use of other types of information, which may arise later than would be preferred or useful to arrest the problem at its early stages. Another related problem is that as viruses can arise from anywhere in the world and does not respect borders, the source of the virus may be from a country that does not collect or cannot provide the data needed for swift early detection.379

Personal data protection and data use ethics during a health crisis Are the ethical boundaries re-defined given the national health and security as well as economic concerns arising from the spread of infectious diseases? There are strong arguments for this to be the case since public health and security are primary concerns, bolstered by secondary interests like safeguarding the economy. The context against which ethical principles are applied is as important as the AI used and its potential for abuse or inaccuracy. The ethical principles should be aligned with the objective of safeguarding health and human lives; and as such, if the “humancentric” focus is on public health concerns, there is greater leeway for the urgent development and use of new forms of AI even as personal data and privacy concerns may be as yet untested or may be compromised to some extent. Explainability, transparency and fairness are also important but may reasonably be phased in after the implementation of AI measures given the urgency of the situation.380 In other words, a main issue is the public and private use of personal data and how the personal data regime may require the above to operate, or otherwise exempt data management from the Personal Data Protection Act (PDPA).381 In fact, many data protection laws have already put in place exemptions that can and should apply in a situation involving a pandemic of such proportions as the COVID-19 situation that we are facing today. In Singapore, “public agencies” are excluded from the PDPA. 382 However, as an AI may be developed and operated by a private organisation, the sharing or disclosure of personal data to 379 Becky McCall, ‘COVID-19 and Artificial Intelligence: Protecting Health-Care Workers and Curbing the Spread’ (2020) Vol 2 The Lancet <https://doi.org/10.1016/S2589-7500(20)30054-6>. 380 These categories form the high-level guiding principles toward promoting trust in, and understanding of, AI technology under the Singapore Ministry for Communications and Information’s Model Artificial Intelligence Governance Framework (Second Edition, 21 January 2020) <https://www.pdpc.gov.sg/-/media/files/pdpc/pdffiles/resource-for-organisation/ai/sgmodelaigovframework2.pdf>. 381 Personal Data Protection Act (No. 26 of 2012) (PDPA). 382 PDPA, s 4(1)(c).

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such organisations will have to find a legal basis under the PDPA; as is the independent collection and use of personal data by the organisation itself. Under its present provisions, the PDPA allows organisations to collect, use and share personal data without actively seeking consent for the purpose of contact tracing and other emergency response measures on the basis of its necessity for “national interest” (which can cover health and economic interests) and/or as a necessary response to a life, health or safety emergency of the data subject or other persons with whom that subject may have interacted with. 383 An example is the collection of personal information like identification data including unique ID numbers, health-related symptoms, recent travel information and personal health data, for the granting of access to certain premises. Likewise, public agencies can share such data with private agencies and vice versa under an existing exemption.384 For example, where the private agency provides contact tracing services or where combined data is required for such objectives. In such a case, the other PDPA provisions and protections remain applicable, such as the institution of reasonable security arrangements for protection and reasonable notification requirements for transparency.385 Certainly, wider exemptions can be made if and when necessary as the Minister also has powers to enact new legislation or subsidiary regulations. An organisation or type of personal data, or classes of organisations or personal data can be prescribed for exemption in accordance with the PDPA.386 Alternatively, new emergency legislative exemptions can be passed swiftly, for example the COVID-19 (Temporary Measures) Act 2020,387 which will take precedence over the PDPA obligations.388 Such a broader exemption may be necessary, for instance, if general access or notification to the public is inadvisable (that is, the other PDPA obligations should also be justifiably exempted). In contrast, other countries may have a different policy and legislative approach. For example, the European Union’s (EU) General Data Protection Regulations (GDPR) have a different approach that can also serve the general purpose of allowing for the development and application of AI for the abovementioned objectives. 389 In fact, the GDPR also further categorises “sensitive data” PDPA, s 17 read with Schedules 2(1)(d)(b), 3(1)(d)(b) and 4(1)(e)(b) respectively. 384 PDPA, s 17 read with Schedules 2(1)(q)(r), 3(1)(j) and 4(1)(g) respectively. 385 PDPA, ss 24 and 20 respectively. 386 PDPA, s 4(1)(d). 387 COVID-19 (Temporary Measures) Act (No 14 of 2020) <https://www.moh.gov.sg/docs/librariesprovider5/pressroom/press-releases/annex-for-notification-8-apr2020.pdf>. The Act was fast-tracked through Parliament and passed on the same day as it was introduced on 7 April 2020. See also Lydia Lam, ‘Necessary for Singapore to Fast-Track COVID-19 Laws Amid Unprecedented Situation: Lawyers’ (Channel News Asia, 13 April 2020) <https://www.channelnewsasia.com/news/singapore/singapore-fast-tracks-COVID-19-laws-unprecedentedsituation-12634060>, which also provides other examples of expedited laws for national health and other emergency situations. 388 PDPA, s 4(6). 389 Council Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such 383

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which includes health information. 390 In a statement to provide a consistent approach for EU Member States to follow,391 the European Data Protection Board released a statement on the processing of personal data in relation to COVID-19.392 Public and private institutions, including health authorities and services, can lawfully process personal information without relying on consent if there is substantial public interest.393 Depending on the situation, data controllers can rely on the “legitimate interest”, 394 “contractual necessity”, 395 or “legal obligation” 396 bases to process personal data as part of the measures taken in relation to a health threat like the spread of COVID-19. It can also be justified on the basis of doing so to protect the “vital interests” of the data subject or other people.397 Data controllers should still practice data minimisation and conduct a data protection impact assessment before collecting personal data.398 Another example is the United States where restrictions on personal data, including health data, are loosened; 399 and where laws to strengthen personal data protection are asked to be put on hold.400

The role of academia in aligning AI for pandemic response to ethics and regulations The Centre for AI and Data Governance (CAIDG) in the Singapore Management University School of Law has joined a multi-disciplinary and multi-jurisdictional Global AI Ethics Consortium consisting of top academic institutions including Technical University of Munich (Institute for Ethics in AI); Aarhus University; Harvard University (Berkman Klein Center); New York University (The GovLab); Oxford University (Oxford Internet Institute); University of Tokyo and Sorbonne University data, and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR) [2016] OJ L119/1; see also the ePrivacy Directive (ePD) (Council Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L201) and the exemptions provided therein (see Article 15 of the ePD) may also be applicable, such as in relation to personal location data. 390 In relation to “sensitive data” relating to public interest in the area of public health and processing for medical diagnosis, the provision of health care or treatment and so on, see GDPR, Articles 9(2)(i) and (h) respectively. 391 The approach has not been uniform across the EU Member States. See also International Association for Privacy Professionals, ‘DPA Guidance on COVID-19’ (2020) <https://iapp.org/resources/article/dpa-guidanceon-COVID-19/>. 392 European Data Protection Board, ‘Statement on the Processing of Personal Data in the Context of the COVID19 Outbreak’ (19 March 2020) <https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_statement_2020_processingpersonaldataandCOVID19_en.pdf>. 393 GDPR, Article 6. See also GDPR, Article 6(1)(e) and Article 9(2)(g), in relation to “sensitive data”, for the “public interest” ground. 394 GDPR, Article 6(1)(f). 395 GDPR, Article 6(1)(b). 396 GDPR, Article 6(1)(c). 397 GDPR, Article 6(1)(d), and Article 9(2)(c) for “sensitive data”. 398 John Timmons and Tim Hickman, ‘COVID-19 and Data Protection Compliance’ (White & Case, 26 March 2020) <https://www.whitecase.com/publications/alert/COVID-19-and-data-protection-compliance>. 399 Henry Kenyon, ‘Loosening of Health Data Rules in Pandemic Raises Privacy Concerns: Expert’, 2020 CQINSB 0400 (Congressional Quarterly Inc.), 9 April 2020. 400 Natalie A. Prescott, ‘COVID-19 Will Apparently Not Delay CCPA Enforcement’ (2020) X(217) The National Law Review <https://www.natlawreview.com/article/COVID-19-will-apparently-not-delay-ccpa-enforcement>.

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to set a universal standard for data protection regulation in a health crisis and guidelines on ethical practices. Researchers in CAIDG are also developing a comparative study on the ethical issues posed by contact tracing and citizen movement with their counterparts in Edinburgh University. One focus of study is the different national approaches to AI ethics and the immediate, medium- and long-term ramifications for privacy and personal data protection. Interesting and important questions associated with crisis necessities and the future impact on surveillance societies are expected to be covered in the study.401 Just as we require a concerted and calibrated response from the technologists and scientists; academics must also work together for a comprehensive and consistent global solution to meet a common global challenge on a scale and speed unlike anything since the Asian Flu in the 1980s,402 and which is still a growing problem worldwide due to its insidious nature. The effects of this pandemic will lead to further economic hardship that is yet to be calculable. Certainly, it has impacted the way humans interact and transact in a way most have never seen before (since World War 2) with an unprecedented lockdown of borders or heavy immigration controls, the grounding of the cruise and aviation industries, the mandatory closure of non-essential businesses and services, and quarantine or similar measures on many national levels. In contrast, it is no surprise that information and communications technology (including AI) have flourished and risen to the fore in the management and containment of this virus, given the remote access it provides to information, products and services and its many aforementioned capabilities respectively.

401 This research/project is supported by the National Research Foundation, Singapore under its Emerging Areas Research Projects (EARP) Funding Initiative. Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not reflect the views of National Research Foundation, Singapore. 402 Comparing it to similar viruses, the COVID-19 pandemic death toll will likely surpass the H1N1 Swine Flu in 2009-10, having already exceeded the death toll for MERS and SARS respectively). See also Hilary Bruek and Shayanne Gal, ‘How the Coronavirus Death Toll Compares to Other Pandemics, Including SARS, HIV, and the Black Death’ (Business Insider Singapore, 23 May 2020) <https://www.businessinsider.sg/coronavirus-deathshow-pandemic-compares-to-other-deadly-outbreaks-2020-4?r=US&IR=T>. Given its rate of infection, that can possibly exceed all the pandemics that came before, except perhaps the Spanish Flu of a century ago.

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15. Ethics, rule of law and pandemic responses Mark Findlay403 Introduction – legitimacy crisis? In their report ‘The Rule of Law in Times of Health Crises’404 Julinda Beqiraj, Jean-Pierre Gauci and Nyasha Weinberg identified certain conditions under which rule of law adherence can contribute to an effective pandemic response. These include: 

Transparency



Clarity



Participation, engagement and representation



International cooperation



Equality and equity



Accountability and anti-corruption

In the context of pandemic control strategies and public reaction, the first three of these are particularly directed toward better ensuring public trust and citizen engagement. The remainder say something about governance responsibilities in the use of personal data. A quick comparison of the language used to describe these conditions and the central ethical principles espoused in AI ethics frames405 suggests aspirational commonality between rule of law and ethical discourse. Both ethics and rule of law compliance are meant to create an operational consciousness among designers and users of AI-technologies such as have been advocated and employed in COVID19 control. 406 In addition, the mass personal data sharing potentials emerging out of these Professor of Law, Singapore Management University, Director of the Centre for AI and Data Governance (CAIDG). I am grateful for the research assistance of Jane Loo and Josephine Seah. The original draft of the ethics discourse section was written by Josephine Seah. Some of the material on ethics has been drawn from cited CAIDG publications in the field. This research is supported by the National Research Foundation, Singapore under its Emerging Areas Research Projects (EARP) Funding Initiative. Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not reflect the views of National Research Foundation, Singapore. 404 Julinda Beqiraj , Jean-Pierre Gauci and Nyasha Weinberg, ‘The rule of law in times of health crisis’ (Bingham Centre for the Rule of Law, 1 July 2020) <https://binghamcentre.biicl.org/documents/87_rule_of_law_in_time_of_health_crises_paper.pdf> accessed 11 July 2020; see also Julinda Beqiraj, Lucy Moxham, Anthony Wenton, ‘Unity and Diversity in National Understandings of the Rule of Law in the EU’ (Bingham Centre for the Rule of Law, 4 May 2020) <https://binghamcentre.biicl.org/publications/unity-and-diversity-in-national-understandings-of-the-rule-of-lawin-the-eu-reconnect-deliverable-71> accessed 15 July 2020. 405 Eduardo Magrani, ‘New Perspectives on Ethics and the Laws of Artificial Intelligence’, (2019) 8(3) Internet Policy Review <https://policyreview.info/articles/analysis/new-perspectives-ethics-and-laws-artificialintelligence> accessed 20 July 2020. 406 Soumya Banerjee, ‘A Framework for Designing Compassionate and Ethical Artificial Intelligence and Artificial Consciousness’, (2018) 18(2-A) Interdisciplinary Description of Complex Systems 403

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surveillance technologies have generated community disquiet407 that requires the reassurance of some recognition of individual rights and liberties. My reading of the many expressions of community concern about the possible negative impact of pandemic surveillance technologies on freedom of association and movement, and challenges to individual integrity, suggests they can be reduced to these fundamentals: inclusion and actionability. In democratic nation-states where accountability and representation are essential conditions for governance legitimacy, distrust surrounding exceptional surveillance regimes will not only impact on the effectiveness of such technologies to achieve their anticipated prevention and control purposes,408 but may undermine a wider attitude of amenability and obedience to intrusive pandemic responses or those which depend on simple and recurrent attitudes of acceptance and cooperation. This brief review promotes a regulatory thesis that recognises but goes well beyond conditions for achieving pandemic control. Simply put the argument recounts a growing dissatisfaction with ethics and principled design as either the single or primary self-regulatory regime ensuring responsible data use and trustworthy AI. From this foundation it proposes rule of law compliance as a parallel and supportive normative and operational direction to address the deficiencies likely in any overreliance on ethics regulation. In expressions of resistance to COVID responses there has been little evidence of any prevailing confidence that assertions about ethical reflection answer the deeply felt and differentially identified reservations regarding surveillance and data usage in pandemic responses. While Ronan Cormacain seems confident that rule of law scrutiny, and the sound law-making procedures that result can make face mask requirements more legitimate,409 it remains likely that some oblique enhancement of procedural legitimacy will only address the failing of ethics to ground its normative claims in a pre-existing and generally accepted institutional order.410 <https://www.researchgate.net/publication/322163242_A_Framework_for_Designing_Compassionate_and_Ethi cal_Artificial_Intelligence_and_Artificial_Consciousness> accessed 20 July 2020. 407 Consultancy Asia, ‘Singaporean Attitudes to Personal COVID Personal Data Differ to Overseas Counterparts’ (15 April 2020) <https://www.consultancy.asia/news/3126/singaporean-attitudes-to-personal-covid-data-differto-overseas-counterparts> accessed 20 July 2020. 408 Mark Lawrence Schrad, ‘The Secret to Coronavirus Success is Trust’, (Foreign Policy, 15 April 2020) <https://foreignpolicy.com/2020/04/15/secret-success-coronavirus-trust-public-policy/> accessed 20 July 2020. 409 Ronan Cormacain, ‘Face Coverings on Public Transport Regulations: A Rule of Law Analysis’ (Bingham Centre for the Rule of Law, 3 July 2020) <https://binghamcentre.biicl.org/publications/coronavirus-facecoverings-on-public-transport-regulations-a-rule-of-law-analysis> accessed 17 July 2020; Ronan Cormacain, ‘Coronavirus Bill: A Rule of Law Analysis (Supplementary Report - House of Lords)’ (Bingham Centre for the Rule of Law, 25 March 2020) <https://binghamcentre.biicl.org/publications/coronavirus-bill-a-rule-of-lawanalysis-supplementary-report-house-of-lords>. 410 ‘Report on the rule of law’, (Venice Commission of the Council of Europe, 26 March 2011) <https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2011)003rev-e> accessed 16 July 2020; ‘Rule of Law Checklist, (Venice Commission of the Council of Europe, 12 March 2016) <https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf> accessed 13 July 2020.

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Particular challenges to rule of law posed by pandemic responses including: 

Collection and processing of personal data

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Target surveillance (enforced quarantines and movement tracing)

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Strategic surveillance (such as QR code registration on entry)

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Video surveillance (CCTV cameras, facial recognition at ports of entry)

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Sensor surveillance (residential monitoring)

Active participation from the citizenry is required in policy formulation and roll-out if the governance expectations of justice, fairness, equality, explainability and answerability are to mean much more than vague ethical endowment. The citizen disaffection with surveillance and mass data sharing in pandemic responses is a strong case in point for the crisis of legitimacy facing ethics as a regulator, and rule of law as any effective substitute. The conclusion of this reflection asserts that without the essence of democratic participation, in the form of citizen integration in emergency policymaking, and actionability if rights and liberties are compromised (both features of ‘thick rule of law’)411 then the regulatory legitimacy crisis facing principled regulatory regimes remains.

Problems with the “Ethical AI” discourse This section summarises the main concerns emerging around ethical regulatory paradigms when applied to AI development and deployment, and the use of big data. Reduced to its essentials the critique advances on two fronts: 

that ethical principles as currently advanced by the AI and big data industry are elitist and insufficiently particular to form clear, strong and universal regulatory requirements, and

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that ethical attribution and distribution are not sufficient across the AI ecosystem due to the prioritising of organisational, commercial and professional counter-messages.

Over-representation of Industry Actors Private companies like Google, Microsoft, IBM and Tencent have taken the lead in publishing their own ethics documents and principles.412 While it is unsurprising that companies at the forefront of Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2012). 412 Anna Jobin, Marcello Ienca and Effy Vayena, ‘The Global Landscape of AI Ethics Guidelines’ (2019) 1(9) Nature Machine Intelligence, at pp 389–99 <https://doi.org/10.1038/s42256-019-0088-2> accessed on 12 July 2020. 411

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AI development want to have a hand in shaping the debates around the very technologies they are building and marketing, it would be naive to expect that they will abide by voluntary standards in the face of market pressures and growth imperatives.413 The murky overlap between developer and self-regulator demand an evaluation of likely contradictions in incentives that work against the regulatory mission. The emergent critique in recent years has highlighted the hypocrisy of ‘ethics washing’, where industry players are able to hide behind the promotion and marketing of Ethical AI as a form of principled self-regulation, which then functions as an alternative to legislation and other harder-edged regulatory intervention.414 In addition, Hagendorff has also highlighted the risk of big tech influencing research through increasing public-private partnerships and industry-funded AI research operations, thereby posing the risk of a “gradual buyout of research institutes.”415

Missing voices and issues from the debate While ethical principles abound in the AI self-regulatory discourse, some scholars have increasingly highlighted to the narrowness of their advocacy, where both problems and solutions said to be addressed through ethics reflect the privileged voices of a minority. Hagendorff emphasises the gendered division in the drafting of ethics principles: …the “male way” of thinking about ethical problems is reflected in almost all ethical guidelines by way of mentioning aspects such as accountability, privacy, or fairness. In contrast, almost no guideline talks about AI in contexts of care, nurture, help, welfare, social responsibility or ecological networks.416 The review of various principle statements internationally by Jobin, Ienca, and Vayena417 also revealed an under-representation of input from regions such as Africa, South and Central America and Central Asia. As they see it, “more economically developed countries are shaping this debate more than others, which raises concerns about neglecting local knowledge, cultural pluralism and the demands of global fairness.” This lack of diversity in the discourse advocating ethical AI development and use risks the replication of older forms of power hierarchies through a North world dominant treatment. As Lee points out: Thilo Hagendorff, ‘The Ethics of AI Ethics: An Evaluation of Guidelines’ (2020) 30, at pp 99-120 Minds and Machines <https://doi.org/10.1007/s11023-020-09517-8> accessed 17 July 2020. 414 Hagendorff (n 413); Rodrigo Ochigame, ‘The Invention of ‘Ethical AI’: How Big Tech Manipulates Academia to Avoid Regulation’ (The Intercept, 21 December 2019) <https://theintercept.com/2019/12/20/mit-ethical-aiartificial-intelligence/>; Karen Yeung, Andrew Howes, and Ganna Pogrebna, ‘AI Governance by Human RightsCentred Design, Deliberation and Oversight: An End to Ethics Washing’ in M Dubber and F Pasquale (eds.), The Oxford Handbook of AI Ethics (OUP 2019) (forthcoming) accessed 12 July 2020. 415 Hagendorff (n 413). 416 Hagendorff (n 413) at p 103. 417 Jobin, Ienca, and Vayena (n 412) at p 396. 413

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[u]nless [developing economies] wish to plunge their people into poverty, they will be forced to negotiate with whichever country supplies most of their A.I. software — China or the United States — to essentially become that country’s economic dependent, taking in welfare subsidies in exchange for letting the “parent” nation’s A.I. companies continue to profit from the dependent country’s users.418 Other important issues are similarly either missing or muted in the ethics self-regulatory discourse. These range from issues social responsibility and care, as mentioned above, to questions around the political abuse of AI software such as automated propaganda, bots, fake news, and deep fakes; on to the social and ecological costs of building AI systems, such as lithium mining, the exploitation of rare earth minerals, and the employment of “ghost workers” for data labelling and content moderation.419

Gaps in shifting from principles to practice Despite these reservations, and more general concerns about ever effectively operationalising such a smattering of general values and principles, there is continued activity within the AI and date management industries to translate at least some of these principles into practice. Aligned with this dynamic, most national AI strategies still revolve around a self-regulatory ethics core. As Hagendorff emphasises, accountability, privacy, or fairness appear in about 80% of all available guidelines and seem to be providing the “minimal requirements for building and using an “ethically sound” AI system.” Much technical effort has been concentrated on materialising these principles, like IBM’s “AI Fairness 360” toolkit and Google’s “What-If Tool”. Even with a determination to operationalise the ethical use and development of AI within production teams, research suggests an increasing divide between the availability of ethics decision-making tools and their real-life application.420 This normative/operational dissonance may be explained by the following challenges across the AI ecosystem: 418 Lee Kai-Fu, ‘The Real Threat of Artificial Intelligence’ (The New York Times, 25 June 2017) <https://www.nytimes.com/2017/06/24/opinion/sunday/artificial-intelligence-economic-inequality.html>. 419 Hagendorff (n 413); Mary Gray and Suri Siddharth, Ghost Work: How to Stop Silicon Valley from Building a New Global Underclass” (Eamon Dolan/Houghton Mifflin Harcourt 2019; Sarah Roberts, Behind the Screen: Content Moderation in the Shadows of Social Media, (Yale University Press 2019); Kate Crawford and Joler Vladan, ‘Anatomy of an AI System’ (2018) <http://www.anatomyof.ai>. 420 Morley et al., ‘From What to How: An Initial Review of Publicly Available AI Ethics Tools, Methods and Research to Translate Principles into Practices.’ (2019) Science and Engineering Ethics <https://doi.org/10.1007/s11948-019-00165-5> accessed on 12 July 2020; Ville Vakkuri, Kai-Kristian Kemell, Joni Kultanen, Mikko Siponen, and Pekka Abrahamsson, ‘Ethically Aligned Design of Autonomous Systems: Industry Viewpoint and an Empirical Study’ (2019) arXiv:1906.07946 [cs. CY] <http://arxiv.org/abs/1906.07946> accessed 12 July 2020; Schiff et al., ‘Principles to Practices for Responsible AI: Closing the Gap’ (2020) arXiv:2006.04707 [cs. CY] <http://arxiv.org/abs/2006.04707> accessed 12 July 2020; Kenneth Holstein,

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Uncertainty over the distribution of responsibility Who should take responsibility for thinking about the ethical implications of technology and the implementation of these ethics tools? How should responsibility be attributed and distributed across the AI ecosystem?421 As Orr and Davis write: “Technical systems pass through multiple hands over the trajectory of conception, design, implementation, and use. Myriad actors and organisations come in contact with a given AI product, and each has formative effects upon it. It remains unclear who the stewards of these technologies are, and where the burden of social responsibility lies”.422 Similarly, Schiff et al. 423 have called this “the many hands problem”, where the distribution expertise required to build and market AI product leads to fundamentally different areas of operational focus, wherein some priorities are not aligned with the promotion of ethical values. For example, technically trained engineers may emphasise the quality and safety of their products and ignore the wider social implications of their output while business managers prioritise fiduciary responsibilities and profit in terms contract obligations. On the other end of the spectrum, social scientists and ethicists who are the most interested in addressing principled design may be stuck in advisory capacities without sufficient operational resources or organisational capacity and institutional power to require functional/capacity changes in production teams to reflect ethical attribution.

Uncertainty over and difficulty in assessing the impact of AI/ML models on individuals and society Few ethics tools currently provide meaningful ways of assessing the impact/implications of using machine learning or an algorithm on individuals, their community, and society as a whole.424 Onsite research has revealed that engineers tend to be more attuned to immediate and physical Jennifer Wortman Vaughan, Hal Daumé III, Miro Dudík, and Hanna Wallach, ‘Improving Fairness in Machine Learning Systems: What Do Industry Practitioners Need?’ (Proceedings of the 2019 CHI Conference on Human Factors in Computing Systems (2019) - CHI ’19) at pp 1–16 <https://doi.org/10.1145/3290605.3300830> accessed 12 July 2020; Michael Madaio, Luke Stark, Jennifer Wortman Vaughan, and Hanna Wallach, ‘CoDesigning Checklists to Understand Organizational Challenges and Opportunities Around Fairness in AI’ (2020) <http://www.jennwv.com/papers/checklists.pdf> accessed 17 July 2020. 421 For an answer to attribution and distribution see Mark Findlay and Josephine Seah, “An Ecosystem Approach to Ethical Data Use: Experimental reflections”, (CAIDG, 13 May 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597912> accessed 19 July 2020. 422 Will Orr and Jenny L. Davis, ‘Attributions of Ethical Responsibility by Artificial Intelligence Practitioners’ (2020) 23(5) Information, Communication & Society, 1–:2 17: 2 <https://doi.org/10.1080/1369118X.2020.1713842> accessed 15 July 2020 423 Schiff et al. (n 420). 424 Morley et al. (n 420).

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harms rather than broader evils such as social, emotional, or economic damage. Nonetheless, understanding risks posed by AI/ML models “requires looking well beyond a narrow set of topics such as bias, transparency, privacy, or safety and treating them as independent issues. Instead, the full range of topics and their complex interdependencies needs to be understood… such a task can be enormously difficult”.425

A disjunct between the availability of tools and the capacity of AI practitioners to affect change Finally, the current dissonance between the recognition of ethical responsibilities and their application in practice is due to the heavy reliance on the voluntary and conscious compliance by AI practitioners embedded within the essential technical expertise governing their models. Yet this group is often constrained in their decision-making capacities by commercial or organisational externalities that usually take priority, such as managerial norms and client mandates.426 In highly competitive commercial and technological environments structured by comparatively pressing imperatives driving the “AI race”,427 the difficulty of measuring the success or failures of available decision-making constituents for addressing ethical issues means that: …there is no clear problem statement (and therefore now clear business cast) that the ML community can use to justify time and financial investment in developing much-needed tools and techniques that truly enable pro-ethical design. 428 In summary, the problems with the current ethical AI debate are these: 

A minority of voices are shaping the debate’s trajectory at the expense of a plurality of experiences, values, and norms.



While the shift towards operationalisation does address the conceptual vagueness of AI principles429 it also has the effect of placing too many expectations on individuals to change the resist of problematic and harmful AI deployments. These individuals, while wellpositioned to influence operational outcomes with their technical expertise of data processing and model development, are both typically untrained to recognise the larger societal implications of their work and constrained in their decision-making capacities to allocate more time and resources to addressing ethical considerations.

425 Schiff et al. (n 420). 426 Orr and Davis (n 422). 427 Hagendorff (n 413), 428 Morley et al. (n 410). 429 Ben Green, ‘Data Science as Political Action: Grounding Data Science in a Politics of Justice’ (2018) arXiv:1811.03435 [cs. CY] <http://arxiv.org/abs/1811.03435> accessed 17 July 2020; Jobin, Ienca, and Vayena (n 412).

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

Can a solution be found for this uptake dilemma via a refinement of principled frameworks through the more focused application of micro ethics430 or virtue ethics431 to achieve the more equitable and just development and deployment of AI/ML systems?

On the final contention, D’Ignazio and Klein432 demand a move away from the language of ethics entirely. They suggest that ethics remains insufficient as an AI regulatory paradigm because it continues to assume that the source of AI risks and challenges (perceived and actual) lies within individuals and the technical systems they create and maintain, thereby failing to “acknowledge structural power differentials and work towards dismantling them”.433 Accepting this is the case, then the soft law approach behind AI ethics remains inadequate to prompt a deeper engagement with entrenched market and machine assumptions motivating the advance of AI or to recognise and take account of shifting perceptions and norms in society, much less the much more complex “global systems of racial capitalism, class inequality, and heteronormative patriarchy, rooted in colonial history”. 434

Regulating Heteronormative Technology and Data Use There is not the space in this brief review to flesh out why the application of AI and the use of big data in the current neoliberal market economy is heteronormative, patriarchal, class structured and neo-colonial. Some might say in any case it is unfair to blame the maths and the machine for a market model of multi-national capitalism which is at its source power differentiated. But for the purposes of the argument remaining, the power differentials which weigh heavily on the attribution and distribution of ethical responsibility across the AI ecosystem435 mean that a simple and singular reliance on a principled self-regulatory frame is unconvincing and naïve. In any measure, community disquiet over the rights and integrity challenges posed by AI-assisted surveillance technology and resultant mass data sharing in current pandemic responses makes clear that resorting to ethics discourse to reverse the resistance that accompanies these control strategies will not always produce a sufficiently compliant social context for their successful operation. So, what do I propose as an ‘ethics plus’ regulatory alternative? Don’t get me wrong – I am not decrying the relevance of ethical regulatory considerations. It is important to promote a principled

Hagendorff (n 413). 431 Shannon Vallor, Technology and the Virtues: A Philosophical Guide to a Future Worth Wanting (OUP 2016). 432 Catherine D’Ignazio, and Lauren Klein, Data Feminism (MIT Press, 2020). 433 ibid at p 60. 434 Shakir Mohamed, Marie-Therese Png, and William Isaac, ‘Decolonial AI: Decolonial Theory as Sociotechnical Foresight in Artificial Intelligence’ (2020) Philosophy & Technology <https://doi.org/10.1007/s13347-020-00405-8> at p 9, accessed 17 July 2020 435 Findlay and Seah (n 421). 430

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consciousness for influencing crucial decision-sites across the AI ecosystem. In other work436 we have proposed how that can be propagated and embedded through the identification of mutualised responsibility and the application of ‘shared fairness’. Even so, such a consciousness will not counter the suspicions and negative perceptions of communities that are excluded from control policy developments and disempowered to challenge negative impacts that can and will impact civil rights and human dignity. As mentioned earlier, rule of law discourse shares many of the principles espoused in AI ethics discourse. What sets rule of law apart is its essential connection with; 

A constitutional ‘backbone’ that gives definitive comparative measure against which selfregulation can be empirically reflected, and



An inextricable connection to fair and just processes for effecting and actioning rights and remedies which normative principles originally determine but do not enforce.

At present, the Centre for AI and Data Governance is researching how certain structural inequalities in society mean that particular groups and communities are more vulnerable to pandemic health risks, and that choices concerning control strategies employed towards these vulnerabilities can exacerbate discrimination. Rule of law, with its commitment to equality, impartiality and fairness goes to the heart of this concern. Not only can rule of law ascription identify pre-existing inequality, and subsequent discrimination but it also is able to direct remedial processes for citizen inclusion (constitutional engagement) and rights activation (legal remedy provision). In ‘Rule of Law in Times of Health Crises’, the authors take time to engage the relevance of antidiscrimination for rule of law. They observe that the virus exposes existing inequalities and vulnerabilities in society. The different responses to COVID impact different communities in different ways and tend to exacerbate endemic social dysfunction such as domestic violence, as well as triggering social discriminators that disadvantage health care access for ethnic minorities. The report advocates that such discrimination must be addressed through positive policy action measures, in line with obligations under equality legislation and constitutional protections ensuring gender justice and racial harmony. In the report’s view, consideration must also be given to groups such as prisoners, persons in residential care, persons who are homeless and/or living in shelters, refugee settlements, along with certain categories of workers, that because of their living conditions are not able to benefit from social distancing or other less intrusive control measures. When it comes to frontline health 436 ibid.

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care workers, many of whom in economically advanced countries are migrant workers, the inadequate or delayed supply of personal protective equipment also heightens the risk from vulnerability through exposure.

Conclusion – actionability and integration The first constituent of my contention that rule of law requires action for it to adequately address the legitimacy crisis facing the normative/principled frames for regulation of AI is inclusivity. A trawl through rule of law discourse recognises the importance citizen inclusion in achieving equality, accountability, transparency and certainty. If procedural justice is to be asserted in policymaking, particularly when it is tested in the exigencies of a health pandemic then the reassurance from a provident and paternal state can only go so far without the bolstering of representative citizen engagement. In our work on COVID-19 control regulation437 we state concerning citizen inclusion in the control response crafting; The reasons behind any limitation of individual liberties and integrity should be publicly enunciated by those promoting the data-harvesting technology with this potential. Information regarding the positive and negative impacts on safety and identity should be clearly and candidly canvassed in forms and formats that are accessible and understandable to all communities that the technologies will impact. As the scale and severity of the COVID-19 pandemic rose to the level of a global public health threat justifying restrictions on certain rights, then causal relations between threat control policy and intended outcomes must require informed and routine monitoring by civil society effected from intrusive technologies. Civil society can only perform a potent monitoring function if it is provided with up-to-date information, and constant information looping, that details the operation of data-harvesting. Civil society monitoring should be assisted by the regular review of operational objectives for the technology against rights and liberties measures, carried out by the technology promoters. Indeed, under the International Covenant on Economic, Social and Cultural Rights, which most countries have adopted, individuals have the right to “the highest attainable standard of physical and mental health.” Governments are obligated to take effective steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases.” Concomitantly, careful attention to human rights such as non-discrimination and ethical principles like transparency and respect for human dignity can align with an effective control response 437 Mark Findlay and Nydia Remolina Leon, ‘Regulating Personal Data Usage in COVID-19 Control Conditions’ (CAIDG, 22 May 2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3607706> accessed 20 July 2020.

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even in the turmoil and disruption that inevitably results in times of crisis, when the urgent need to protect health dominates discussions of potential harm to other individual rights. For these ‘rights’ to have localised meaning, technology promoters must translate principles into practice through a ‘use-case approach’ to control benefits and liberty/integrity intrusions. A useful way to embed this ‘awareness’ regulatory atmosphere is through recurrent and structured community consultations and conversations. In keeping with this empowerment theme, the second constituent is the actionability/enforcement of rights and remedies. In their discussion of the relationship between rule of law principles and responses to public health emergencies, Beqiraj, Gauci and Weinberg438 identify the necessity for non-derogable rights to be protected absolutely and other rights to connect with effective remedies for challenging the legitimacy of derogation measures. It is at the level of enforcement that the rule of law in action parts ways with normative/principled regulatory frames which rest on voluntary compliance and perhaps a touch of reputational shaming. In his opinion entitled ‘Rule of Law and Enforcement’ the then Chief Justice of New South Wales Jim Spiegelman said this about guaranteeing rule of law principles: .. laws must be enforced in a rational and fair manner to enable the reasonable expectations of citizens to be realised.439 Elaborating on what he considers to be the vertical rule of law function, the relationship between the citizen and authority, Spiegelman concluded with a messenger from Chinese imperial history and a victim of Tudor tyranny: Bao Gong’s functions were not only judicial; they were executive and even, on occasions, legislative. In the Chinese imperial tradition, the execution and enforcement of the law and dispute resolution were part of an undifferentiated governmental function… Many of you will have heard of Thomas More, the Lord Chancellor of England who defied Henry VIII and was beheaded because of his refusal to support the King in his insistence on divorcing and marrying again. In a play by Robert Bolt entitled A Man for All Seasons, Thomas More delivers a passionate defence of the rule of law to his future son-in-law, Roper. More asserts that he knew what was legal, but not necessarily what was right, and would not interfere with the Devil himself, until he broke the law. The following exchange then occurred: Beqiraj, Gauci and Weinberg (n 404) 439 JJ Spiegelman, Rule of Law Enforcement, (2003) 26 (1) UNSW Law <http://classic.austlii.edu.au/au/journals/UNSWLawJl/2003/9.html> accessed 20 July 2020. 438

Journal

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ROPER: So now you give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I’d cut down every law in England to do that! MORE: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down … d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake. This imagery of the law as a protection from the forces of evil is an entirely appropriate one. Each society has its own devils, some real, some imagined. The forest of laws that are planted under the rule of law protects us from those devils.

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(D)

Public governance under the microscope?

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16. Constitutional literacy in times of crisis Maartje De Visser440 At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O’Connor made a passionate plea for “all citizens to understand our Constitution and unique system of government, and participate actively in their communities.”441 The timing coincided with the halfway mark of Donald Trump’s term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question.442 At its foundation, the democratic legitimacy of a government arguably presupposes a working familiarity with the constitution qua social contract. How can a constitutional system claim to be based on popular sovereignty if its populace is ignorant of the source and scope of its government’s powers and responsibilities? Only when citizens are aware of the rights they have can they vindicate perceived violations thereof. Familiarity with the scope of State powers and inter-institutional balance allows us individuals to perform our collective role as constitutional guardians and to do so responsibly, be it at the ballot box, by challenging unlawful State actions or by effectively using freedom of information laws.

Literacy and identity The normative case for constitutional literacy is already compelling during normal times. Yet the need for citizens to possess constitutional knowledge is amplified during times of crisis, when people are exposed to measures that would in other circumstances have been decried as far beyond the constitutional pale – as we are witnessing with the COVID-19 pandemic. Many countries have restricted our individual ability to move freely within and across national boundaries,443 and also to associate in groups. These are the sort of restrictions which in normal circumstances are usually imposed pursuant to penal or security regulations. At the same time, in the name of public health, countries have authorized deep intrusions into our private lives by

440 Associate Professor of Law, Singapore Management University. This article was originally published in the IACL-AIDC blog (23 July 2020) <https://blog-iacl-aidc.org/2020-posts/2020/7/23/constitutional-literacy-intimes-of-crisis>. 441 Sandra Day O’Connor, ‘Letter from former justice Sandra Day O'Connor on dementia’ (23 October 2018) <http://apps.washingtonpost.com/g/documents/politics/letter-from-former-justice-sandra-day-oconnor-ondementia/3253/?itid=lk_inline_manual_3> accessed 15 July 2020. 442 See e.g. Corey Brettschneider, ‘Trump vs. the Constitution: A Guide’ (Politico Magazine, 4 August 2016) <www.politico.com/magazine/story/2016/08/2016-donald-trump-constitution-guide-unconstitutional-freedomliberty-khan-214139> accessed 15 July 2020. 443 ‘Coronavirus: The world in lockdown in maps and charts’ (BBC, 7 April 2020) <www.bbc.com/news/world52103747> accessed 15 July 2020.

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meticulous tracking our every whereabouts.444 Significant delegations of power have been effected to enable the government to respond swiftly and massive financial redistribution exercises have taken place. Taken together, the scope and scale of COVID-19-related measures implicate the core substantive rules found in constitutions: those regulating the system of government, interinstitutional balances and the rights provisions. While many systems have not given the government a carte blanche in tackling the pandemic,445 decisions are made under conditions of high uncertainty and significant time pressure, potentially giving rise to ‘shoot first, ask questions later’ policy choices. Restrictions on MPs’ ability to meet due to social distancing requirements have led to the “suspension of major oversight mechanisms, including Question Time” in several countries.446 Furthermore, to the extent that changes to the relationship among State institutions or with the citizenry are effected through non-emergency instruments, these may outlast the pandemic because they may escape the temporal validity constraints that are commonplace in the design of emergency regimes.447 Widespread awareness of and respect for the constitution is an important factor in ensuring that potentially far-reaching changes do not go unnoticed or endure in the absence of informed support across the citizenry. But beyond changes to the legal framework, a crisis like COVID-19 also implicates the nation as an imagined cultural-political community, viz. the collective understanding of what unites us into one in-group. This points to the need for people to be literate about their shared aspirations and core values that animate a constitutional way of life. For example, South Korea’s response to the pandemic has been described as a blend of its Confucian cultural roots that emphasize collectivism and cooperation with a keen democratic-liberal philosophy of encroaching upon personal freedoms only to the extent absolutely necessary.448 China’s approach is said to exemplify its “exceptionally 444 Arjun Kharpal, ‘Use of surveillance to fight coronavirus raises concerns about government power after pandemic ends’ (CNBC, 26 March 2020) <www.cnbc.com/2020/03/27/coronavirus-surveillance-used-bygovernments-to-fight-pandemic-privacy-concerns.html> accessed 15 July 2020. 445 Tom Ginsburg and Mila Versteeg, ‘Binding the Unbound Executive: Checks and Balances in Times of Pandemic’ (2020) Virginia Public Law and Legal Theory Research Paper No 2020-52 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608974>. See also Christian Bjørnskov and Stefan Voigt, ‘The architecture of emergency constitutions’ (2018) 16 Int J Const L 101 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2798558> 446 Elena Griglio, ‘Parliamentary oversight under the COVID-19 emergency: striving against executive dominance’ (2020) 8 The Theory and Practice of Legislation <https://www.tandfonline.com/doi/pdf/10.1080/20508840.2020.1789935?needAccess=true> at pp 1 and 17. 447 Cf. Ginsburg and Versteeg (n 445); Bjørnskov and Voigt (n 445). See also the entries for the Symposium ‘COVID 19 and States of Emergency’ (Verfassungsblog, 6 April 2020) <https://verfassungsblog.de/introductionlist-of-country-reports/> accessed 15 July 2020. 448 Pepe Escobar, ‘Confucius is winning the COVID-19 war’ (Asia Times, 13 April 2020) <https://asiatimes.com/2020/04/confucius-is-winning-the-COVID-19-war/> accessed 15 July 2020; Timothy Martin and Marcus Walker, ‘East vs. West: Coronavirus Fight Tests Divergent Strategies’ (The Wall Street Journal, 13 March 2020) <https://www.wsj.com/articles/east-vs-west-coronavirus-fight-tests-divergentstrategies-11584110308> accessed 15 July 2020.

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high degree of population understanding and acceptance” 449 of placing the community above oneself, while the stockpiling in the US has been ascribed to a tradition of reliance on markets to keep Americans safe and prosperous. 450 More generally, COVID-19 has brought to the fore questions about social-ethnic divides and inequalities, 451 while border closures have fuelled thinking along national lines.452 A crisis like COVID-19, then, compels us to reflect on our identities, including the political-philosophical principles reflected in the constitution.

Using heritage for literacy purposes In her April 2020 address to the nation, Queen Elizabeth noted that “The pride in who we are is not a part of our past, it defines our present and our future”.453 As Her Majesty’s reminds us, national identity is at least partially founded on the legacies of the generations before us, that is to say, our political-cultural heritage. This heritage finds expression, amongst others, in the personification of the nation in image, song and icon. As the severity of the pandemic become apparent, recourse to national symbols took flight. The Queen’s speech was only the fifth occasion on which she delivered a rallying message to the British people, with monarchs elsewhere similarly playing their part in calling for national unity in the face of an uncertain future. In Singapore, where households can usually only display the flag during the national day period, the rules were relaxed in recognition of Singaporeans’ association of the national flag with overcoming adversity and commitment to progress – attributes that the government was quick to point out as direly needed in present times.454 Beyond symbols, a nation’s identity also manifests itself in buildings, structures and artefacts. Think of the Statue of Liberty in the US, Robben Island in South Africa, the Kremlin and Red Square in Russia, the Hiroshima Peace Memorial in Japan as well as temples, cathedrals and of course national museums that recount a country’s grand narrative. 449 WHO, ‘Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (16-24 February 2020)’ <www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-COVID-19-final-report.pdf> accessed 15 July 2020, 19; Kai Kupferschmidt and Jon Cohen, ‘China’s aggressive measures have slowed the coronavirus. They may not work in other countries’ (Science, 2 March 2020) <https://www.sciencemag.org/news/2020/03/china-s-aggressive-measures-have-slowed-coronavirus-they-maynot-work-other-countries> accessed 15 July 2020. 450 Sidney Shapiro, ‘What is the cost of freedom and liberty in the era of coronavirus’ (The Hill, 21 March 2020) <https://thehill.com/opinion/civil-rights/488816-what-is-the-cost-of-freedom-and-liberty-in-the-era-ofcoronavirus> accessed 15 July 2020. 451 See e.g. Max Fisher and Emma Bubola, ‘As Coronavirus Deepens Inequality, Inequality Worsens Its Spread’ (The New York Times, 15 March 2020) <www.nytimes.com/2020/03/15/world/europe/coronavirusinequality.html> accessed 15 July 2020; Ibram X. Kendi, ‘The Coronavirus Is Exposing Our Racial Divides (The Atlantic, 6 April 2020) <www.theatlantic.com/ideas/archive/2020/04/coronavirus-exposing-our-racialdivides/609526/> accessed 15 July 2020. 452 See e.g. Andrew Jack, ‘Divide and rule: coronavirus provokes dangerous nationalism’ (Financial Times, 7 May 2020) <www.ft.com/content/57487e8d-0c83-4d6b-918d-469222d2eeaa> accessed 15 July 2020. 453 Queen Elizabeth II, ‘Queen Elizabeth II Coronavirus Speech Transcript’ (5 April 2020) <www.rev.com/blog/transcripts/queen-elizabeth-ii-coronavirus-speech-transcript> accessed 15 July 2020. 454 Clement Yong, ‘Coronavirus: Rules changed to allow people to display Singapore flag from now until Sept 30’ (The Straits Times, 25 April 2020) <www.straitstimes.com/singapore/coronavirus-rules-changed-to-allowpeople-to-display-national-flag-from-now-until-sept-30> accessed 15 July 2020.

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This tangible cultural-political heritage can be a powerful medium to enrich constitutional literacy efforts – notably, an understanding of the shared aspirations and values that constitute the constitutional way of life. This is done by allowing people to immerse themselves in an environment that has shaped their country’s direction and identity.455 This is all the more so for heritage sites where large numbers of citizens normally gather every year to celebrate national holidays or commemorate together. Lockdowns have however shuttered most heritage sites, and with it their ability to act as a social glue that binds (diverse) communities together. Those that have remained open – like Angkor Wat in Cambodia – attract only a smattering of visitors, as fear of infection and limited transport options keep citizens away. Technology may alleviate the closure of physical sites through virtual tours, online materials and the like.456 Yet these are no panacea. An online video of the Statue of Liberty or Robben Island is a poor proxy for the real-life experience. Virtual access further brings to the fore the digital divide, as not everyone will be able to access remotely structures or artefacts that evoke their relationship with the nation. Finally, the question of resources also looms large: in Asia, for instance, the majority of heritage sites must generate their own revenue,457 while those that do receive financial support from the government face the almost certain prospect of cuts as national economies are taking a severe beating. The long-term negative impact of a crisis-induced funding crunch can be substantial. The preservation of existing heritage sites may be compromised, and thereby their ability to serve as a common reference point for future generations of citizens as they continue to (re)make the nation. Plans for upgrading or expanding the range of places to mark occasions, individuals or values of deep significance for the nation stand to be shelved – perhaps permanently, as conventional crisis responses prioritize the economy458 over cultural heritage, even though the latter can do a great deal more in fostering national allegiance, let alone constitutional patriotism.

Harsha Munasinghe, ‘The politics of the past: constructing a national identity through heritage conservation’ (2005) 11 Int J Heritage St pp 251-260; Eugene Tan, ‘Re-engaging Chineseness: political, economic and cultural imperatives of nation-building in Singapore’ [2003] The China Quarterly 175 pp 751-774; Niamh Moore and Yvonne Whelan (eds) Heritage, Memory and the Politics of Identity (London: Routledge 2007); Brenda Yeoh and Shirlene Huang, ‘Strengthening the nation’s roots? Heritage policies in Singapore’ in Kwen Fee Lian and CheeKiong Tong (eds) Social Policy in Post-industrial Singapore: Options for a Post-industrial State (Brill Academic Publishers 2008). 456 An interesting example is Singapore’s National Gallery, which offers online access to its exhibition “Siapa Nama Kamu?” (“What is your name?”), which invites visitors to consider how art relates to issues of self and community <https://www.nationalgallery.sg/see-do/programme-detail/28893893/siapa-nama-kamu-art-insingapore-since-the-19th-century>. 457 Paul Fabel, ‘Markers of identity: Asia’s cultural heritage in times of COVID-19’ (FES, 19 May 2020) <www.fes-asia.org/news/markers-of-identity-asias-cultural-heritage-in-times-of-COVID-19/> accessed 15 July 2020. 458 António Guterres, ‘The recovery from the COVID-19 crisis must lead to a different economy’ (UN, 31 March 2020) <www.un.org/en/un-coronavirus-communications-team/launch-report-socio-economic-impacts-COVID19> accessed 15 July 2020. 455

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Here it should be pointed out that fewer than one-third of the constitutions currently in force demand that the State protects its cultural-historical heritage. Only a small number thereof also recognize that individuals have a right to enjoy such heritage as well as share in the responsibility for its safekeeping. Clauses along these lines tend to be found in recent constitutions adopted in the wake of socio-political transitions (e.g. Tunisia, 459 Timor-Leste 460 ) and in those of states that subscribe to a ‘thick’ conception of what qualifies as a ‘good society’ and by implication, ‘good’ citizenship (e.g. China, 461 Bhutan 462 ). It would be good to see the mainstreaming of heritagepreserving provisions, however, as caring for the tangible manifestations of the (moral) foundations of our political system should not be a choice left to the whims and fancies of the government of the day, but a basic constitutional obligation.

Conclusion As societies are strongly buffeted by winds of change, be it of the COVID-19 variety or otherwise, the general public’s need to understand the basics and values of their constitution is ever more real. From the US463 to France464 to South Africa465 to Malaysia,466 calls for civics classes and improved access to constitutional materials are becoming louder, and rightly so. At the same time, it is important to move beyond the structured, top-down dissemination of information that is characteristic of much civic education. Heritage sites can be a valuable addition to the literacy toolbox, especially in (re)animating a collective consciousness towards a nation’s sense of self. In this context, the effects of COVID-19 on the future ability of heritage sites to discharge such a function bear careful consideration.

459 Constitution of Tunisia, Art. 42 (“The state shall protect cultural heritage and guarantees it for future generations.”). 460 Constitution of Timor-Leste, Part I, Art. 6 (“The fundamental objectives of the State are … (g) to affirm and value the personality and the cultural heritage of the East Timorese people”). 461 Constitution of the People’s Republic of China, Chapter I, Art. 22 (“The state protects places of scenic and historical interest, valuable cultural monuments and relics and other important items of China's historical and cultural heritage.”). 462 Constitution of Bhutan, Art. 4(1). 463 See e.g. Campbell Straetor, ‘Young Americans demand civic education – and for good reason’ (The Hill, 20 July 2019) <https://thehill.com/opinion/education/453923-young-americans-demand-civic-education-for-goodreason> accessed 15 July 2020; Tom Lindsay, ‘Will U.S. Education Remedy A Half-Century of Neglecting Civics Education?’ (Forbes, 21 February 2020) <www.forbes.com/sites/tomlindsay/2020/02/21/will-us-educationremedy-a-half-century-of-neglecting-civics-education/#42529205fb9d> accessed 15 July 2020. 464 ‘France launches new classes on ‘moral and civic’ education’ (France 24, 1 September 2015) <www.france24.com/en/20150901-france-looks-defend-values-republic-through-education-new-civics-course> accessed 15 July 2020. 465 Zamantungwa Khumalo, ‘Civic education might be the future’ (Mail & Guardian, 19 July 2018) <https://mg.co.za/article/2018-07-19-civic-education-might-be-the-future/> accessed 15 July 2020. 466 Shad Saleem Faruqi, ‘Schools must promote constitutional literacy’ (The Star, 21 November 2019) <www.thestar.com.my/opinion/columnists/reflecting-on-the-law/2019/11/21/schools-must-promoteconstitutional-literacy> accessed 15 July 2020.

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17. The ideals of law in a health crisis: Singapore’s legislative responses to COVID-19 Benjamin Joshua Ong467 Introduction Situations like the COVID-19 pandemic pose a dilemma. One might argue that such a crisis is a time for people to sacrifice their legal rights for the common good and submit to heavy restrictions on one’s liberties, surrendering individual liberties to a benevolent, though powerful, state. On the other hand, for every situation in history where an emergency has required people to accept such restrictions, there are many more situations in which an unscrupulous government has used a pretend emergency, or a real but exaggerated one, as an excuse to arrogate to himself sweeping arbitrary powers and refuse to let go. In seeking to guard against the latter risk, it is necessary to remember the importance of the principle of the rule of law. The precise meaning of that term is contentious, but, at its heart, the rule of law requires that society be ruled not by the desires of officials, but rather by law. Officials are not free to just do anything; they can only do what the law empowers them to. If left to their own devices, officials, like anybody, could change their wishes at the drop of a hat, and without telling anyone; this could lead to inconsistency in decision-making. Worse, it would be difficult for people to plan their lives, because nobody would be able to tell precisely what was or was not allowed or how one would be treated by the state. By contrast, laws are supposed to be stable, be accessible to anyone, and operate in a predictable, principled and non-arbitrary manner – these values can be said to make up the core of the rule of law.468 A related ideal is what this chapter will call the principle of proportionality: a law should ideally interfere with certain liberties – such as the freedom to move around as one pleases – as little as possible. Of course, some interference is often justified for a valid purpose, such as protecting public health; but even then, the interference should not be greater than what is necessary for this purpose.

467 Assistant Professor of Law, Singapore Management University. 468 For fuller accounts of the rule of law, see Lon L Fuller, ‘The Morality that Makes Law Possible’, ch 2 in The Morality of Law (rev edn, Yale University Press 1969) (under ‘Eight Ways to Fail to Make Law’); and Lord Bingham, ‘The Rule of Law’ (6th Sir David Williams Lecture, 16 November 2006) <https://www.cpl.law.cam.ac.uk/sir-david-williams-lectures2006-rule-law/rule-law-text-transcript> accessed 16 July 2020.

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But all these are ideals. The law is supposed to be stable, but this can come at the expense of needed flexibility: law-making processes can be slow. While the law is freely accessible through the Singapore Statutes Online website469 and court decisions published online,470 they are not necessarily easy to comprehend, even by those who have been legally trained. And laws are not always the perfect tools to achieve their aims: the law often falls short of achieving its aims in certain circumstances, and goes too far in others. Such are the problems that face any authority, particularly one which is responsible for dealing with a situation that changes quickly and unpredictably and that poses a serious risk to people’s health and lives. This chapter aims to offer a view into how Singapore has attempted to meet this challenge. After providing a background to the law as it stood just before COVID-19 started to spread, this chapter will chronicle laws restricting both the movements of particular individuals as well as the activities of society more generally for the sake of fighting COVID-19, and discuss how these laws have evolved – and continue to evolve – to meet the developing crisis, and the implications for the rule of law and the principle of proportionality. It will not be possible to describe and analyse all COVID-19-related laws in detail, but it is hoped that this chapter will provide some food for thought.

Background: the pre-COVID-19 law Before COVID-19, the main law dealing with pandemics was the Infectious Diseases Act (IDA), which was passed in 1976 following a malaria epidemic and a typhoid epidemic in 1975.471 The IDA overhauled the law on infectious diseases, which by then had become outdated. The IDA included a list of “infectious diseases” and gave various powers to health officials472 which related to such diseases. Contacts of those who had an infectious disease could be made to undergo medical examination;473 those confirmed to have an infectious disease could be made to undergo treatment.474 Officials also had the power to order people who had or were suspected to have an infectious disease to be quarantined (the word used in the IDA is “isolated”) at home or in hospital.475

469 Singapore Statutes Online <http://sso.agc.gov.sg>. 470 Particularly decisions of the High Court and the Court of Appeal (which together make up the Supreme Court), which are available at the Supreme Court’s website: <https://www.supremecourt.gov.sg/news/supreme-courtjudgments>. 471 Singapore Parliamentary Debates: Official Report (24 November 1976) vol 35 at col 1096 (Dr Toh Chin Chye, Minister for Health). 472 Specifically, the Commissioner of Public Health and Director, Deputy Directors and Assistant Directors of Medical Services, as well as officers (known as Health Officers) to whom the Commissioner or Director delegated powers: Infectious Diseases Act (Cap 137, 1985 Rev Ed) as originally enacted, s 4. 473 ibid s 8(1). 474 ibid s 8(1). 475 ibid s 14.

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Following the beginning of the severe acute respiratory syndrome (SARS) crisis in 2003, the IDA was amended to grant even more extensive powers to health officials. For example, people who had recently been treated for or even recovered from an infectious disease could now be quarantined.476 In addition, a new provision was introduced into the IDA – section 21A – which made it an offence for a person who “knows or has reason to suspect that he is a case or carrier or contact” of certain diseases, such as SARS, to “expose other persons to the risk of infection by his presence or conduct” in public or shared spaces (other than his own home).477 Finally, the penalties for offences under the IDA (including the offence of violating an isolation order and the offence in section 21A) were increased. Previously, a first-time offender could be fined up to $5,000; now, a first-time offender could be fined up to $10,000 and/or jailed up to 6 months.478 Two points about the IDA stand out. First, the IDA empowered officials to impose severe restrictions on individuals’ freedom of movement. Second, section 21A was worded very broadly, in that it did not define precisely what sort of activity would “expose other persons to the risk of infection”. This is not to say that the IDA granted untrammelled power: the IDA only applied to certain infectious diseases; and section 21A only applied to SARS.

Restrictions on certain individuals’ movements Quarantine orders under the Infectious Diseases Act Such was the state of the law relating to infectious diseases as of January 2020, which is the time the COVID-19 outbreak in Singapore began. On 28 January 2020 (on which Singapore’s fifth case was confirmed),479 COVID-19 was added to the list of “infectious diseases” in the IDA; now the IDA – including section 21A – applied to COVID-19.480

Infectious Diseases Act (Cap 137, 2003 Rev Ed) as amended by the Infectious Diseases (Amendment) Act 2003 (No 5 of 2003) and the Infectious Diseases (Amendment No 2) Act 2003 (No 7 of 2003), s 15(2). 477 ibid s 21A. 478 ibid s 65(a); cf. the Infectious Diseases Act as originally enacted in 1976 (n 450) s 65. 479 Rei Kurohi, ‘Wuhan virus: Singapore confirms 5th case; patient from Wuhan stayed at her family's home in Ceylon Road’ (The Straits Times, 28 January 2020) <https://www.straitstimes.com/singapore/wuhan-virussingapore-confirms-5th-case-patient-from-wuhan-stayed-at-her-familys-home-in> accessed 15 July 2020 480 Infectious Diseases Act – Infectious Diseases Act (Amendment of First and Second Schedules) Notification 2020 (S 68/2020). 476

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This was clearly a time for the powers in the IDA to be deployed. On 28 January 2020, the Ministry of Health announced that all travellers from Hubei, China would be quarantined for two weeks under the IDA.481

Leave of Absence and Stay-Home Notices But in the following days, the Government began to take new measures not mentioned anywhere in the IDA. On 31 January 2020, the Ministry of Manpower (“MOM”) issued a press statement stating that “work pass holders entering Singapore with travel history to mainland China within the last 14 days are required to take a 14-day leave of absence upon arrival in Singapore”.482 Two points stand out about this. First, “leave of absence” (or “LOA” for short) is not a legal term of art, and the MOM did not cite any law relating to “leave of absence”. Second, the IDA – which contained most of the law on infectious diseases – only conferred powers (such as the power to order that people be quarantined) on health officials (namely, the Director or a Deputy Director of Medical Services – who are officials from the MOH – or a Health Officer to whom the Director or Deputy Director delegated power).483 While there is a Multi-Ministry Taskforce on Wuhan Coronavirus,484 the fact remains that the IDA does not confer powers on the MOM or its officers. One may question this development from the point of view of the rule of law. In the first place, it is not clear whether the LOA requirement was law at all. The MOM’s press release said that those on an LOA “should stay at home and avoid social contact” – but “should” does not mean that one is compelled by the law to do something.485 The press release went on to state that “[e]mployers and employees have a joint duty to ensure that the employee behaves responsibly during the leave of absence. MOM reserves the right to take action against the employer or employee, if they fail to discharge their duty.” Not only is a press statement not a law; this press statement was not entirely clear: the phrase “behaves responsibly” is vague, and nothing was said about the precise types of “action” that MOM could take. One might even think that the MOM was threatening to act Ministry of Health Singapore, ‘Additional Precautionary Measures to Minimise Risk of Community Spread in Singapore’ (28 January 2020) <https://www.moh.gov.sg/news-highlights/details/additional-precautionarymeasures-to-minimise-risk-of-community-spread-in-singapore> accessed 15 July 2020. 482 Ministry of Manpower Singapore, ‘Update on Additional Measures by MOM to Minimise the Risk of Community Spread of the COVID_19’ (31 January 2020) <https://www.mom.gov.sg/newsroom/pressreleases/2020/0131-update-on-additional-measures-by-mom-to-minimise-the-risk-of-community-spread> accessed 15 July 2020. 483 Infectious Diseases Act (Cap 137, 2003 Rev Ed) s 2 (definition of “Director”) and s 4. 484 Jalelah Abu Baker, ‘Singapore forms Wuhan virus ministerial task force, imported case “inevitable”: Gan Kim Yong’ (Channel News Asia, 22 January 2020) <https://www.channelnewsasia.com/news/singapore/wuhan-virussingapore-ministerial-task-force-inevitable-12301610> accessed 15 July 2020; Multi-Ministry Taskforce on Wuhan Coronavirus, ‘Terms of Reference (TORs) and Composition’ (Ministry of Health Singapore, 27 January 2020) <https://www.moh.gov.sg/docs/librariesprovider5/default-document-library/multi-ministry-taskforce-onwuhan-coronavirus-and-tor---final.pdf> accessed 15 July 2020. 485 Ronan Cormacain, ‘COVID-19: When is a rule not a rule?’ (Bingham Centre for the Rule of Law, 24 April 2020) <https://binghamcentre.biicl.org/comments/88/COVID-19-when-is-a-rule-not-a-rule> accessed 15 July 2020, which discusses UK government websites stating what people “should” do in response to COVID-19. 481

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unlawfully, in that there was no law imposing such a “duty” or giving the MOM the power to “take action”. But the truth is that the MOM does have the power to “take action” – not under the law relating to infectious diseases, but rather under the law to the employment of foreign workers. Under the Employment of Foreign Manpower Act (EFMA), foreigners need a work pass to work in Singapore.486 Section 7(4) of the EFMA gives MOM officials powers to attach conditions to or revoke a work pass at any time. While these powers are not unlimited,487 they are certainly wide. Seen in this light, the MOM’s press statement has actually injected a degree of clarity by specifying when the MOM will exercise its powers relating to work passes. The press statement is still vague, but the net effect is, paradoxically, to reduce vagueness. A few weeks later, the Government stopped the LOA regime and replaced it with a regime of ‘stayhome notices’ (SHNs),488 which required certain persons to stay at home or in a specified place (such as a government-designated hotel). The difference was that persons under SHNs are not allowed to leave their homes at all (whereas those under LOAs were “allowed to leave their residences for daily necessities or urgent matters”). 489 Like LOAs, SHNs are not mentioned anywhere in the IDA. Yet the MOH stated that a person who violated an SHN could face criminal prosecution under section 21A of the IDA;490 and SHNs themselves state that foreign employees who risk having their work passes revoked.491 Earlier, we have seen that the LOA regime served to shed light on when the MOM might be inclined to exercise its powers to revoke or impose conditions on work passes. The SHN regime, too, sheds light on when MOM will exercise these powers. One might think that, similarly, the SHN regime sheds light on how section 21A of the IDA works. But there is a key difference. The mere fact that someone has breached the terms of an SHN does not necessarily mean that one has committed an offence under section 21A. An element of section 21A is that the person’s “presence or conduct” outside home must have “expose[d] other persons to the risk of infection”. It would therefore, in theory, be open to a person accused of violating section 21A by violating a SHN to argue that he 486 Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) s 5. 487 The EFMA does not explicitly say so, but it is likely that a court would hold that there are implied limitations on powers to revoke or attach conditions to work passes. 488 Ministry of Health Singapore, ‘Implementation of New Stay-Home Notice’ (17 February 2020) <https://www.moh.gov.sg/news-highlights/details/implementation-of-new-stay-home-notice> accessed 15 July 2020. 489 Ministry of Manpower Singapore, ‘Mandatory Stay-Home Notice for Work Pass Holders with Travel History to Mainland China’ (17 February 2020) <https://www.mom.gov.sg/newsroom/press-releases/2020/0214mandatory-shn-for-wph-with-travel-history-to-china> accessed 15 July 2020. 490 Ministry of Health Singapore (n 488). 491 A copy of the present version of the SHN is available on the website of the Immigration and Checkpoints Authority, ‘Stay-Home Notice and COVID-19 test’ <https://www.ica.gov.sg/COVID-19/shn> accessed 16 July 2020.

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is not guilty because he took sufficient measures to avoid exposing others to the risk of infection. It would have been interesting to see what how the courts would have responded to such an argument, but it appears that they had no opportunity to do so: there was one case in which a person was prosecuted under section 21A, but he pleaded guilty.492 For these reasons, SHNs, as they were first introduced, posed a potential problem with the rule of law, in that it was not clear precisely what their legal basis was or what legal rule would be broken by a person who flouted a SHN. But we must not forget that the IDA has always allowed health officials to order that people be quarantined, which is more restrictive than being issued with an SHN. Those quarantined under the IDA are, by default, required to be isolated from contact with anybody (other than healthcare staff).493 In other words, unless health officials direct otherwise, if a person lives with others and is ordered to be quarantined, either that person must either be quarantined somewhere outside home (such as a hospital) or the other residents must move out. By contrast, the SHN regime did not, and still does not, forbid a person from living with others. (At present, SHNs only state that those who live with others “should” – not must – stay in their own rooms “as much as possible”.)494 Seen in this light, while we may criticise the SHN regime (as it was first introduced) from the point of view of the rule of law, it did promote the principle of proportionality.

The new law on Stay-Home Notices Eventually, however, this point became moot because a new law – the Infectious Diseases (COVID-19 – Stay Orders) Regulations 2020 (or “Stay Orders Regulations” for short) – was enacted on 26 March 2020.495 These Regulations (which, despite a few amendments, are still in force as at the time of writing) create a clear legal basis for SHNs by laying down rules regarding “stay orders”: now, the term ‘SHN’ is simply an informal name for a stay order.496 The Regulations specify, in detail, who can issue an SHN; who can be issued with an SHN; and what precisely an individual who is subject to an SHN cannot do. (For example, the Regulations state explicitly that, if a person is under an SHN, people who do not ordinarily live at his/her home cannot come to his/her home; but that there is an exception for workers delivering food or essential goods,497 492 Shaffiq Alkhatib, ‘Coronavirus: Jail for man who breached stay-home notice to eat bak kut teh’ (The Straits Times, 24 April 2020) <https://www.straitstimes.com/singapore/courts-crime/jail-for-man-who-breached-stayhome-notice-to-eat-bak-kut-teh> accessed 15 July 2020. The person was sentenced to six weeks’ imprisonment. 493 Infectious Diseases Act (Cap 137, 2003 Rev Ed) s 2 (definition of “isolation”). 494 Immigration and Checkpoints Authority (n 491). 495 Infectious Diseases Act - Infectious Diseases (COVID-19 – Stay Orders) Regulations 2020 (S 182/2020) (“Stay Orders Regulations”). 496 This is confirmed by the Government of Singapore, ‘Everything you need to know about Stay-Home Notice’ (gov.sg, 25 June 2020) <https://www.gov.sg/article/everything-you-need-to-know-about-the-stay-home-notice> accessed 15 July 2020, which states that it is the Infectious Diseases (COVID-19 – Stay Orders) Regulations 2020 that criminalises a breach of an SHN. 497 Stay Orders Regulations (n 495) r 4(2).

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emergency workers,498 and medical workers who provide treatment, therapy, or care for physical or mental disabilities.)499 Finally, the Regulations make clear that it is an offence simply to fail to comply with a stay order;500 there is no need for prosecutors to resort to section 21A of the IDA to attempt to prosecute people who disobey stay orders. In short, it has always been possible for those suspected of being at risk of COVID-19 could be ordered to be quarantined at home; yet the Government furthered the principle of proportionality by developing the LOA and SHN regimes, which were less restrictive. While these regimes might have been subject to criticism from the point of view of the rule of law, these criticisms were rendered moot when the Government eventually formalised the SHN regime in the form of law. One might ask why the MOH did not simply enact the Stay Orders Regulations to begin with. After all, the Stay Orders Regulations are certainly better from the point of view of legal certainty and consistency, which are cornerstones of the rule of law. A plausible answer is that, like any law, the Stay Orders Regulations would have taken time to formulate and draft. In the meantime, if not for the interim SHN regime, people suspected of being at risk of COVID-19 would either be free to go about as they pleased (which would threaten public health) or have to be ordered to be quarantined (which would undermine the principle of proportionality). There is one final anecdote that bears mentioning. The reason why the aforementioned person had been charged with an offence under section 21A is that, after he had just returned to Singapore from overseas, he went out for a meal instead of going straight home from the airport. He later told an interviewer from the media that he thought that the SHN only took effect from the day after he landed in Singapore, and not immediately after he landed.501 It does not appear that he attempted to raise this argument in court; there is no telling whether it would have succeeded as a defence. But what is interesting is that, two days after the Stay Orders Regulations were enacted, they were amended to state explicitly that an SHN takes effect “upon the issue of the order” and lasts “up to and including the 14th day after the day of the issue of the order”. By contrast, these Regulations had initially stated that a SHN would take effect for “a period (not exceeding 14 days) specified in the order”; this would have left the risk that the SHN was ambiguous. (Indeed, the SHN in the case previously mentioned stated that the person in question had to “remain in your place of residence at all times for a 14-day period”;502 one could argue that this failed to make clear when the period started.) By contrast, the revised Stay Orders Regulations contain no room for ambiguity. SHNs 498 ibid r 4(3)(a). 499 ibid r 4(3)(b). 500 ibid r 4(4). 501 Tan Tam Mei, ‘Singaporean who breached COVID-19 stay-home notice for bak kut teh: “I thought it started the next day”’ (The Straits Times, 25 March 2020) <https://www.straitstimes.com/singapore/sporean-whoflouted-COVID-19-stay-home-notice-for-bak-kut-teh-i-thought-it-started-the> accessed 15 July 2020. 502 Lydia Lam, ‘Man who dined out on bak kut teh while on stay-home notice pleads guilty in first such case’ (Channel News Asia, 16 April 2020) <https://www.channelnewsasia.com/news/singapore/bak-kut-teh-stayhome-notice-jail-circuit-breaker-COVID-19-12645590> accessed 16 July 2020.

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themselves now reflect this: they state explicitly that “The SHN period will commence with immediate effect from the time it is issued to you”.503 It is not clear whether the court case was the reason why the MOH chose to revise the Stay Orders Regulations. Nonetheless, this episode highlights an important feature of legal certainty. There is always the chance that, however well-intentioned a law-maker is, the law might end up being ambiguous, and therefore fall somewhat short of the ideal of the rule of law. It is commendable that the Stay Orders Regulations were amended to remove this last trace of ambiguity; the fact that this was necessary illustrates that upholding the rule of law is often a continuous process.

Restrictions on society more generally Having discussed quarantine orders and SHNs, let us now turn our attention to restrictions which apply to the public generally.

Restrictions before the ‘circuit breaker’ The first law that imposed such restrictions was the Infectious Diseases (Measures to Prevent Spread of COVID-19) Regulations 2020504 (or “Prevention Regulations” for short). The Prevention Regulations were extremely detailed. They contained a long list of activities which were forbidden, from “any competition, sporting event or sporting contest between any number of people or animals”, to “any enrichment activity or tuition conducted for children… at an enrichment centre, a tuition centre, or a sporting facility”, to “any provision of goods, entertainment or services at a bar, public house, karaoke lounge, nightclub or discotheque”. 505 (Two days later, the Prevention Regulations were amended to add several curious activities to this list, such as activities at a “paintball games centre” or an “axe-throwing centre”.)506 Other activities were allowed to continue, but only up to ten individuals were allowed to attend.507 There were also rules requiring that those attending events or in public places generally maintained a distance of at least one metre from one another. These rules were laid out in often excruciating detail: for instance, regulation 6(1)(a)(ii) stated that if, in a public place, there was “seating… fixed to the floor”, then the “owner or occupier of [the] public place” was legally obliged to “ensure that alternate seats are demarcated as seats not to be occupied”. (The Regulations explicitly stated that it was a criminal offence, punishable 503 Immigration and Checkpoints Authority (n 495) (emphasis in original). 504 Infectious Diseases Act - Infectious Diseases (Measures to Prevent Spread of COVID-19) Regulations 2020 (G.N. S 185/2020) (“Prevention Regulations”). 505 ibid r 3(1)(f). 506 There appears to be only one axe-throwing centre in Singapore, which describes axe-throwing as follows: “Think darts, but bigger and better!”: Axe Factor Pte Ltd, ‘FAQ’ <https://axefactor.com.sg/faq> accessed 15 July 2020. 507 Prevention Regulations (n 504) r 4.

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with a fine of up to $10,000 and/or imprisonment of up to 6 months, to “si[t] on a fixed seat in a public place that is demarcated as not to be occupied”).508 These rules are commendable for their precision: they specified in detail what is and is not allowed, and were therefore capable of guiding people’s conduct; this is in keeping with the rule of law. But one can imagine that they must have been very disruptive to individuals and, perhaps more significantly, businesses. The introduction of laws with such a huge impact can threaten the rule of law: if they take people by surprise, then the law has failed to operate in a stable and predictable manner. The Government did attempt to mitigate this risk by introducing the rules in an informal fashion before they began to have the force of law. While the Prevention Regulations were published and came into force on 26 March 2020, the MOH announced the impending closure of various premises (such as entertainment venues) two days in advance,509 and, more than a week before that, announced “various safe distancing measures to be taken to reduce the risk of local spread of COVID-19” on 13 March 2020.510 Of course, the Prevention Regulations still came at very short notice for the businesses which had been ordered to close; to this extent, the rule of law may, to this extent, be said to have taken a back seat to the protection of public health. (Moreover, when measuring the practical impact of such drastic measures, we must consider the impact of various government schemes that aimed to ameliorate the impact of COVID-19 on individuals and businesses). Besides the issue of short notice, one could argue that there was a potential element of arbitrariness to the Prevention Regulations. For example, while the Prevention Regulations required “bar[s]” to be closed, some pointed out that restaurants could still serve alcohol late at night.511 The Prevention Regulations do not define “bar”, but that word was probably intended to have the same meaning as in another law known as the Planning (Use Classes) Rules, namely, “a building used for the carrying on of any trade or business where the primary purpose is the sale of alcoholic drinks for consumption on the premises without dancing, singing or performance of live music or live entertainment” (emphasis added). Why, one might ask, should two establishments be treated differently merely because one serves more food than the other? 508 ibid r 6(3)(b). 509 Ministry of Health Singapore, ‘Stricter Safe Distancing Measures to Prevent Further Spread of COVID-19 Cases’ (20 March 2020) <https://www.moh.gov.sg/news-highlights/details/stricter-safe-distancing-measures-toprevent-further-spread-of-COVID-19-cases> accessed 15 July 2020; Ministry of Health Singapore, ‘Tighter Measures to Minimise Further Spread of COVID-19’ (24 March 2020) <https://www.moh.gov.sg/newshighlights/details/tighter-measures-to-minimise-further-spread-of-COVID-19> accessed 15 July 2020. 510 Ministry of Manpower Singapore, ‘Advisory on safe distancing measures at the workplace’ (13 March 2020) <https://www.mom.gov.sg/COVID-19/advisory-on-safe-distancing-measures> accessed 15 July 2020. 511 Lena Loke and Mandy Lee, ‘When the clock strikes 12: Shutters fall on bars and pubs as new measures take effect’ (TODAY Online, 27 March 2020) <https://www.todayonline.com/singapore/when-clock-strikes-12shutters-fall-bars-and-pubs-new-measures-take-effect> accessed 15 July 2020.

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To be sure, closing bars would go some way toward achieving the purpose of the Prevention Regulations, in that closing bars would lower the risk of disease transmission by reducing the number of places at which people can congregate. But the closure of bars was, as lawyers often say, ‘under-inclusive’: it did not go far enough to achieve this purpose. Why not close restaurants that serve alcohol as well? The problem is that doing so would also reduce the availability of food, which is of course an essential good. One might retort that the law could have been worded such that restaurants could operate but not serve alcohol – but this would have the opposite problem of being ‘over-inclusive’: if a customer is going to sit at a restaurant and eat dinner anyway, why deprive the restaurant of the opportunity to earn income by selling a glass of wine with that meal? One can go on and on with examples and counter-examples, but the point is that it is difficult to conceive of – let alone formulate and implement – a law that goes just far enough, and no further, as is required to perfectly achieve its purpose. In other words, despite the best efforts of lawmakers, some degree of disproportionality between the aim of a law and the means used to achieve that aim must be tolerated.

The beginning of the ‘circuit breaker’ The most onerous restrictions came with the introduction of the ‘circuit breaker’ period, which was announced on 3 April 2020512 and came into effect on 7 April 2020 in the form of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020513 (or “Control Order Regulations” for short). What is striking about the Control Order Regulations is their general approach to individuals’ autonomy. The general way that the law works is that people are free to do anything unless explicitly forbidden. (For example, under the Prevention Regulations, one was generally free to go anywhere and do anything except what was explicitly forbidden by the Prevention Regulations.) The Control Order Regulations, which superseded the Prevention Regulations,514 inverted this legal order: now, people were not free to leave their homes unless the law explicitly allowed them to do so. The starting point was a general rule that “every individual must stay at or in, and not leave, his or her ordinary place of residence in Singapore”.515 There followed a list of permitted purposes for which individuals could leave their homes – but “only to the extent necessary” for those purposes. 516 Further, there was a general rule that all “premises other than residential

Ministry of Health Singapore, ‘Circuit Breaker to Minimise Further Spread of COVID-19’ (3 April 2020) <https://www.moh.gov.sg/news-highlights/details/circuit-breaker-to-minimise-further-spread-of-COVID-19> accessed 15 July 2020. 513 COVID-19 (Temporary Measures) Act - COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (S 254/2020) (as originally enacted) (“Control Order Regulations”). 514 Infectious Diseases Act - Infectious Diseases (Revocation) Regulations 2020 (S 264/2020). 515 Control Order Regulations (as originally enacted) (n 513) r 4(2). 516 ibid r 4(3). 512

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premises” had to be closed, other than the premises of select types of businesses (known as “essential services”).517 One would think that any authority with the power to make such rules has the potential to abuse this power. (After all, a classic tactic of dictators is to use the spectre of a public crisis to justify disproportionately heavy restrictions upon individuals, even long after the crisis has abated.) However, the Singapore Government made such rules in a manner that demonstrated a commitment to the principle of proportionality, in that the rules can only exist so long as the COVID19 crisis exists. To understand this, it is necessary to examine the source of the Government’s legal powers to pass all the Regulations it had. The Prevention Regulations had been issued in the name of the Minister for Health. The Minister derived his power to issue such regulations from section 73 of the IDA, which states that the Minister “may make regulations for carrying out the purposes and provisions of this Act for which he is responsible”. It is unclear what precisely this means. One wonders, for example, whether section 73 would allow the Minister to make Regulations ordering that businesses be closed down even if there were only a tiny risk of someone contracting an infectious disease. But the Control Order Regulations were not made using the power in section 73 of the IDA. Instead, on the day that the ‘circuit breaker’ came into effect, Parliament passed a new Act known as the COVID-19 (Temporary Measures) Act (“Temporary Measures Act” for short). This Act allowed the Minister for Health to issue ‘control orders’, such as the Control Order Regulations. In contrast to the power under section 73 of the IDA, the Temporary Measures Act allows the Minister for Health to issue a control order only: a. “for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of COVID-19”; and b. only if the Minister is satisfied that: i. “the incidence and transmission of COVID-19 in the community in Singapore constitutes a serious threat to public health”, and that ii. “a control order is necessary or expedient to supplement the Infectious Diseases Act and any other written law”.518 In other words, if, hypothetically, a control order like the Control Order Regulations were to remain in force even at a time where there is only a tiny risk of someone contracting COVID-19, one could 517 ibid r 9(1). 518 COVID-19 (Temporary Measures) Act (No 14 of 2020) s 34(1)(b).

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seek to challenge that control order in court on the ground that the Minister cannot possibly seriously believe that COVID-19 still “constitutes a serious threat to public health”. Because the power to issue control orders is limited, the rule of law is upheld, because it is far more difficult for someone in the Minister’s position to use COVID-19 as an excuse to issue control orders arbitrarily for an indefinite period.

Through the ‘circuit breaker’ and beyond Various changes were later made to the Control Order Regulations over time. For example, on 15 April 2020, it was made compulsory for each individual to wear a mask when outside his/her home, with only certain limited exceptions (such as when one was engaging in strenuous exercise, or was in a car alone or together with only people with whom one lived).519 Less than 12 hours later on the same day, the Regulations were amended to add one exception: namely, that one did not need to wear a mask when riding a motorcycle.520 On the same day, the wording of the Regulations was modified to clarify that, while it was permissible to move to a new place to live permanently, it was not permissible merely to visit somebody else’s residence.521 Again, improving clarity in the law is a continuous process. Eventually, in May and June, the Control Order Regulations were modified in order to effect the end of the ‘circuit breaker’ and the beginning of ‘Phase One: Safe Re-opening’ and ‘Phase Two: Safe Transition’. For example, the Control Order Regulations now allow one to leave one’s home for a wider range purposes, such as simply to engage in “social or recreational activity” at certain places.522

Conclusion: law beyond traditional forms This chapter has provided a sketch of how the law has evolved, becoming more severe when necessary to tackle the crisis, allowing for greater individual freedoms in proportion to the more recent decrease in the rate of COVID-19 transmission, and better reflecting the rule of law over

519 COVID-19 (Temporary Measures) Act 2020 - COVID-19 (Temporary Measures) (Control Order) (Amendment No. 3) Regulations 2020 (S 273/2020) (“Amendment (No 3) Regulations”). 520 COVID-19 (Temporary Measures) Act 2020 - COVID-19 (Temporary Measures) (Control Order) (Amendment No. 4) Regulations 2020 (S 274/2020). 521 The old wording stated that individuals could leave home in order to “move to another place of accommodation”, which could conceivably refer to travelling temporarily to visit someone else’s residence. On 15 April, this wording was changed to “move from the individual’s ordinary place of residence to stay in another accommodation in substitution of the firstmentioned place of residence as the individual’s ordinary place of residence”: see the Amendment (No 3) Regulations (n 519). 522 COVID‑19 (Temporary Measures) (Control Order) Regulations 2020 (S 254/2020) (as most recently amended on 4 July 2020) r 4(3)(d).

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time. Our sketch must conclude at this point, even as it remains to be seen how the law will change further in future (particularly during the anticipated ‘Phase Three: Safe Nation’). There is one last point to be made. Let us recall that the rule of law is not just an abstract principle; it serves the important purpose of ensuring that people know exactly what is permitted or forbidden by the law, and are hence able to plan their activities in full knowledge of the legal consequences. So far, this chapter has focused on laws which are drafted in a precise, formal manner. We have seen how this creates legal certainty, but it will be evident how this can come at the expense of accessibility from the point of view of the average person in society. But the Control Order Regulations challenge this traditional understanding of what law looks like. One feature about the Control Order Regulations that has always stood out is their reference to a particular

website

which

the

Regulations

call

the

“prescribed

website”

(presently

https://covid.gobusiness.gov.sg/permittedlist).523 Various terms in the Control Order Regulations, such as “essential service”, “essential service provider”, “permitted enterprise”, and “authorised service”, have all been defined by reference to that website. For example, at present, the Control Order Regulations now state that individuals are allowed to work for a “permitted enterprise” or to “procure an authorised service from a permitted enterprise”. 524 The definition of “permitted enterprise” includes “a person who provides any goods or services specified on the prescribed website, in the course of business”, and an “authorised service” includes “the provision of any goods or services specified… on the permitted website”.525 There is also a rule that “permitted enterprises” may only carry on their businesses with the permission of the Minister for Trade and Industry and in accordance with restrictions stated on the website. In other words, there are many key details that are not specified in the law; they are instead in a website. Does this violate the rule of law? One might think the answer is yes, for the Regulations, which are law, fail to specify these details. But, in this author’s view, the truth is that the website is law, no less than the Regulations. The Regulations refer specifically to the website. The website is maintained by the same authorities who are authorised by the COVID-19 (Temporary Measures) Act to make laws. And the website does everything that law is supposed to do: for example, it sets out clear rules for the operation of businesses, including in the form of a FAQ. These rules are not expressed in the same language as typical Regulations or Acts of Parliament. But that does not mean that they are not law.

ibid r 2(1) (definition of “prescribed website”). 524 By contrast, businesses which are not “permitted enterprises” can only carry out their businesses from home and “through means that do not require meeting any other individual in person”: ibid r 11. 525 ibid r 2(1). 523

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At the same time, the website, taken together with the Control Order Regulations, mitigates the risk of over-rigidity, which is a potential downside of pursuing legal certainty and stability at all costs. The Control Order Regulations allows businesses to depart from the general rules with the permission of the Minister for Trade and Industry, and the website makes it easy to apply for such permission by filling in an online form. Perhaps this is a reminder that we ought to bear in mind even after the present crisis: that, when considering how best to uphold the rule of law and the principle of proportionality, we ought to think beyond our traditional understandings of what law is. In this chapter, we have explored LOAs, which did not have the force of law but which did serve to clarify other laws; SHNs, which began as non-law but were eventually crystallised into law; social distancing measures, which were communicated through informal extra-legal means even before they became law; and the website, which is law despite appearing easier to understand by the general public. All of these aim to uphold the ideals of law by departing, in one way or another, from traditional forms of law. There is no reason why this practice should not continue even after COVID-19.

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18. Reflections on the use of facial recognition technology during COVID-19 Gary Chan526 During the COVID-19 pandemic, infected persons have been quarantined in segregated facilities. Individuals who have been in contact with infected persons may be subject to self-isolation measures or stay-home notices. Technological tools such as proximity and contact tracing apps are used to identify those who have been in close contact with infected persons. The contract tracing QR code used in Singapore’s SafeEntry requires the submission of personal information (including names and identification numbers) prior to entry into certain public places such as malls, factories and restaurants. Robots, in addition to designated human officers, have been deployed to maintain social distancing in public places. Beyond these measures and technologies, facial recognition technology (FRT) is being used for public health surveillance during the COVID-19 pandemic. At the workplace, FRT has been utilised to detect employees with thermal fever and to ensure they wear masks. CCTV cameras with FRT installed monitor those that are subject to quarantine and self-isolation measures in Russia. In China, FRT scans individuals in crowds for signs of thermal fever and identify persons even with masks covering their faces. The UK government is exploring giving out digital certificates or “health passports” through the use of FRT and coronavirus testing to certify that the individual is entitled to return to the workplace. Singapore uses an automated gantry system for temperature screening in hospitals to facilitate contact tracing via facial recognition software. The use of FRT is by no means widespread or uniform across the globe. There are, understandably, serious concerns with privacy and bias. San Francisco was the first US city, followed by Somerville and Oakland, to ban facial recognition software. Washington has placed significant controls on public sector use of FRT. The European Commission had originally intended to impose a five-year moratorium on facial recognition but subsequently allowed individual EU states to make their own decisions. The deployment of live facial recognition software (Automated Facial Recognition (AFR) Locate) by the South Wales Police (SWP) on public streets was challenged by Mr Edward Bridges, a civil liberties campaigner, in the UK courts on privacy grounds. In addition, concerns over FRT have also been voiced in China about the possible leakage of personal information and tracking of their movements.

Professor of Law, Singapore Management University. This research is supported by the National Research Foundation, Singapore under its Emerging Areas Research Projects (EARP) Funding Initiative. Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not reflect the views of the National Research Foundation, Singapore. I am also grateful to Ian Chiang, SMU law graduate, for his research assistance. 526

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Even before the COVID-19 pandemic, FRT had already been used in criminal law enforcement, border controls, and to facilitate the search for missing persons. Can FRT use not be extended to public health surveillance in a pandemic of COVID-19 proportions? As it stands, the global fatality count has exceeded 630,000 and infections have soared beyond 15 million. How serious are the issues of privacy and bias? How do they weigh against public health concerns? Can they be mitigated in any way?

Privacy, Bias and Public Health FRT uses statistical techniques to detect and extract patterns from data and match them with patterns stored in a database. The FRT process starts with the face image (probe) which is “normalised” based on certain standard facial features. The features are extracted to create a biometric template which is then used to compare with images stored in a database (or watchlist). To begin with, FRT is more controversial than proximity and contact tracing apps that are downloaded by users on a voluntary basis. In Singapore’s TraceTogether mobile app, for example, the user of the app would be required to provide information of the contacts recorded on the phone to the government only if he is infected by the coronavirus. Unlike proximity and contact tracing apps, FRT may be used covertly without the explicit consent of the people in public streets. It is also susceptible to “function creep” (that is, the gradual extension of FRT use into expanded databases and purposes). Facial images constitute a unique biometric identifier of the individual. Intrusions into personal privacy adversely affect human dignity and can even result in tangible losses (e.g. of employment prospects). One can suffer from infringements of privacy even in a public place, based on the “reasonable expectation” test. FRT does not only have the capacity to intrude into individual privacy rights but may indirectly generate a “chilling effect” on freedom of movement, assembly and association as well as freedom of speech. But privacy interests or rights are not absolute. In the face-off between privacy and public health, a measure of personal privacy at the very least should arguably be sacrificed for the sake of preserving the individual’s life and the lives of the fellow members of his community who are seriously threatened by the pandemic. In fact, apart from human lives, the pandemic has threatened the economic viability of businesses, livelihoods of workers and social cohesion in certain countries due to the consequent lockdowns. Public health may be used to justify limiting the exercise of other fundamental rights such as privacy provided the limitations represent the least restrictive alternative (UN Committee on Economic, Social and Cultural Rights, General Comment No. 14 on “The Right to the Highest Attainable Standard of Health”). Furthermore, information

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Â obtained from FRT and other surveillance methods can contribute to a better understanding of how the virus is spread within the community. Bias can arise due to the nature of FRT itself and the database of stored facial images. Depending on the exact FRT used, bias against certain minority groups may be attributed to features built into the technology. With a standard template created from a set of facial images, deviations from the standard template (e.g. the images of minority groups in a population) would be recognised by the FRT more easily. Studies have referred to the variations in the performance of different FRTs with respect to age, gender and ethnicity. Discrimination is essentially about the differential treatment of person in similar circumstances based on certain protected characteristic or attributes. Unlike privacy rights, equality guarantees and non-discrimination provisions are not normally subject to overriding considerations such as public health or national security though they may stipulate the scope of application (e.g. the prohibited grounds of discrimination). The major concerns in the US are the use of FRT to intimidate and oppress certain minority communities and marginalised groups and its tendency to endanger civil rights and liberties. A National Institute of Science and Technology study indicated that the likelihood of false positives for Asian and black faces was significantly higher than for white faces. IBM has decided not to offer facial recognition software for surveillance and racial profiling in the midst of protests in the US over the death of George Floyd. Despite these concerns, the fact is that FRT offers significant benefits in its sheer scale and speed of detecting facial images via machine learning algorithms as compared to human capacities. It offers immense potential in law enforcement work in preventing and reducing the incidence of crimes and public health surveillance. Furthermore, public attitudes against FRT use are by no means singular or monolithic; apparently, attitudes to FRT vary depending on the type of use. Based on a poll, the people in the UK, for example, seemed to be more comfortable with FRT use for policing and border control purposes as compared to its use in daily life such as in public transport, schools, supermarkets, and at the workplace. Thus, justifications for FRT use may be made by reference to the potential benefits, the level of public trust, the need to limit the scope of use, and taking into account the risks to privacy and bias.

Safeguards Even if FRT were to be justified for public health surveillance, safeguards must be put in place. One safeguard pertains to the need for transparency regarding how the images in the watchlist are

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selected. If FRT were to be allowed for COVID-19 surveillance, one legitimate question is who should be on the watchlist. As a starting point, it should as far as possible be limited to people who pose serious danger to the community (e.g. those under quarantine orders for the period of the quarantine orders and those who have flouted and are likely to disregard quarantine orders). Whether it should extend to those imposed with self-isolation or stay-home notices and beyond is more debatable. The English High Court in R (on the application of Edward Bridges) v The Chief Constable of South Wales [2019] EWHC 2341 (Admin) (“Bridges”) ruled that automated facial recognition was justified as it had a lawful basis and the legal framework used by the SWP was proportionate. On lawful basis, the court referred to SWP’s common law powers to keep the peace and prevent crime, legislation such as the Data Protection Act 2018 and the GDPR, the Surveillance Camera Code of Practice, and policy documents that provide standards against which the lawfulness of SWP’s use of AFR Locate can be assessed. These enumerated legal powers whilst relevant, are not, however, specific on the use of FRT. On proportionality, the court took note of the following points about AFR Locate and its use: (i) in the event of no match, the biometric data about the individual would be immediately deleted; (ii) AFR Locate was deployed with “significant public engagement” and used for a “limited time” and for a “limited purpose” to identify persons of “justifiable interest” to the police who may have been in the location; (iii) the alternative of installing more CCTVs was considered inadequate to achieve the aims of detecting crime and ensuring public safety; (iv) the targeted and limited scope of persons in the watch lists and the locations in which AFR Locate was deployed; and (v) the past results and benefits generated by AFR Locate in the making of arrests and searches for individuals by the police. Such considerations may also be applicable with adaptations to FRT use in public health surveillance. The court relied on the above features and evidence to reject other grounds of challenges based on the breach of the UK Data Protection Act 1998, and the failure to comply with the Data Protection Act 2018 with regard to the sensitive processing of biometric data. SWP had also prepared a Data Protection Impact Assessment in discharge of its obligation under the 2018 Act. On the question of bias, the court noted there was no evidence that the software generated results that suggest indirect discrimination with respect to the requirements under the Equality Act 2010. In any event, SWP had taken note of such requirements in issuing an Equality Impact Assessment in 2017.

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A final important point is the court’s pronouncement that questions of proportionality are factsensitive. The fact that FRT was adjudged to be proportional in that instance did not mean it would be permissible for criminal law enforcement or indeed for any health surveillance purposes. (Note: An appeal has been filed and a decision from the English Court of Appeal is pending.) The European Commission has in its recent “White Paper on Artificial Intelligence – A European approach to excellence and trust” (19 February 2020) highlighted the risks for fundamental rights from the use of FRT and the need for safeguards subject to the requirements of proportionality, respect for the essence of the right to data protection and the necessity for processing of biometric data. Further, the GDPR states that processing of data concerning health is prohibited unless it is “necessary for reasons of public interest in the area of public health” (Article 9). In addition to the abovementioned safeguards, considerations should be given to FRT use to advance the public health purpose during the COVID-19 pandemic and not thereafter. The justifications for the infringements of privacy via FRT can only apply for the duration of the pandemic. An additional safeguard pertains to the security of data captured via FRT. Similar to the use of FRT in public places, the retention of data derived from its use must be properly justified. The data should be encrypted to minimise the risks of hacking. Furthermore, we should enquire if a data subject should be allowed to challenge the findings of the government through FRT use that a particular person has, for example, flouted restriction orders during the COVID-19 pandemic. In sum, the mediation of the triangular relationship amongst the major concerns of public health, personal privacy and bias against minority or marginalised groups would have to be carefully navigated. Whether and to what extent FRT can be used for public health surveillance during the pandemic – a question of balancing trade-offs and implementing appropriate safeguards - cannot be determined in vacuo but only within a specific context.

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19. Massive COVID-19 infections in foreign workers dormitories: The dog that did not bark in Singapore’s fight against the COVID-19 pandemic Eugene K B Tan527 In the ongoing battle to combat the massive COVID-19 infections in the foreign workers’ dormitories, the focus and dominant narrative, unsurprisingly, has been on overcoming the clear and present public health issues there. The imperative is to safeguard the wellbeing and interests of the foreign workers who reside there (and including those who have been moved out), which is also fundamentally about protecting the rest of the community. The COVID-19 global pandemic means that we are all on the same boat, and no one is safe until everyone else is safe. Singaporeans are generally aligned with the government’s narrative that there are two different COVID-19 outbreaks and situations domestically: the foreign workers dormitories and general community. 528 However, it is crucial that we do not differentiate the infections in the dormitories and in the general community given that the threat of COVID-19 is a clear and present danger. This is the first time since her independence in 1965 that Singapore and Singaporeans are experiencing a true memento mori—a reminder of life’s transience and the fragility and vulnerability of our nation-state. The outbreak of COVID-19 in Singapore and the circuit breaker provided a rare opportunity to rethink the conventional wisdom and easy assumptions that underlie Singapore’s governance model, economic system, social structures, living arrangements, and built environment. In 2019, work-permit holders and foreign domestic workers working in Singapore comprise 56 per cent (or about 941,000) of the 1.68 million non-residents in Singapore. Singapore continues to have a strong appetite for low-wage migrant workers, and their numbers will remain substantial in the years to come. However, it is clear Singapore and Singaporeans have to reduce their heavy

527 Associate Professor of Law, Singapore Management University. This essay has benefited from the writing of the newspaper op-ed, Eugene K B Tan, ‘Time for Singapore to address some uncomfortable questions on its migrant workers’ (TODAY, 24 April 2020) <https://www.todayonline.com/commentary/time-singapore-addressuncomfortable-questions-migrant-workers-covid-19-dormitories>, and from being a panellist in two webinars during Singapore’s circuit breaker (7 April to 1 June 2020): (1) Forum on Migrant Workers: Policy Responses and Lessons from the COVID-19 Pandemic, on 6 May 2020, organised by the Institute of Policy Studies at the Lee Kuan Yew School of Public Policy, National University of Singapore, and (2) We the Citizens 3: Black Swans & Sacred Cows, on 15 May 2020, organised by the Harvard Kennedy School of Government’s Singapore Policy Journal and CAPE (Community for Advocacy & Political Education), a student-run organisation based at YaleNUS College. On the circuit breaker, see Ministry of Health Singapore, ‘Circuit Breaker to Minimise Further Spread of COVID-19’ (3 April 2020) <https://www.moh.gov.sg/news-highlights/details/circuit-breaker-tominimise-further-spread-of-covid-19>. 528 At the time of writing (end July 2020), the number of cases in Singapore exceeded 50,000 with 27 fatalities.

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reliance on foreign workers. This is not something that can be achieved overnight without significant impact to the economy. The deplorable state of hygiene and over-crowding in the foreign workers’ dormitories, prior to the COVID-19 outbreaks there, should remind us of the proverbial dog that did not bark. In the meantime, it is imperative that a whole-of-nation effort is directed towards resolutely enhancing the working and living conditions for migrant workers. Perhaps this state of affairs should not surprise us. All things considered, despite the concerns over the living conditions of the foreign workers, the issue of improving the work and living conditions of foreign workers did not feature on the campaign trail of the 2020 General Election.529 Instead, the Opposition used the foreign workers dormitories issue as a prong of attack on the PAP government’s immigration policy, which has featured as a hot-button issue in every election since the 2011 election. With a substantial foreign manpower component in Singapore’s workforce, the Opposition sought to tap into the public angst, anger, and anxiety over whether this reliance on non-Singaporeans from low-wage jobs to the PMET jobs hurts Singapore and Singaporeans ultimately. 530 This is why the massive COVID-19 dormitory outbreak was so potent as a lightning rod for the opposition to raise issues that resonated with voters. In the larger scheme of things, the foreign workers’ COVID-19 infections did not directly feature as an election issue. Instead, it was the segue for parties and candidates to critique the government’s immigration policy and economic growth strategy. Political parties did not contest on a platform of strongly advocating the welfare of foreign workers. This is to be expected. The issue is not a votewinner; it may well be a vote-loser. Nevertheless, it was a wasted opportunity to deal with an issue that speaks about the values that identify and define Singapore and Singaporeans. Even as the authorities go about the first order of business of suppressing the many COVID-19 clusters in the dormitories, there are broader questions for Singaporean society to address in an honest and thorough appraisal. A failure to do so might result in the government merely tackling the symptoms, and not the causes, of the challenges associated with the large migrant worker population here.

529 Singapore’s 13th general election was held on 10 July 2020. The ruling People’s Action Party (PAP) won 83 of the 93 seats while the Workers’ Party won the remaining 10 seats. The PAP won 61.24 percent of all valid votes cast. 530 PMET jobs refers to professional, manager, executive and technician jobs.

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In turn, that challenges the viability and legitimacy of Singapore’s immigration policy and economic formula even as the government assiduously manages public opinion over the news and images coming out of the dormitories. What might be some of the broader questions? Let me offer three. The first is whether Singapore’s heavy reliance on cheap, transient foreign labour is a sustainable economic formula. Secondly, are Singapore and Singaporeans prepared to shoulder more of the costs of having a large foreign labour force? Thirdly, have such costs been properly allocated among the stakeholders, or are the benefits of such a policy largely privatised while the costs socialised? These questions implicate the values system as a society: How Singaporean society views the foreign workers who do the so-called 3D (dirty, dangerous, and demeaning) jobs that Singaporeans do not want to do. I am of the firm view that the living and working conditions are symptoms of the callous treatment of lowly-paid foreign workers, a troubling manifestation of the addiction to cheap, transient foreign labour. The issues identified interrogate the overarching question of how Singaporeans, as a society, treat these workers. It is the sense of responsibility and ethics, rather than the legal requirements, which determine their actual living and working conditions. Treating the symptoms rather than the causes is not sustainable and will result in other issues. For example, likening the massive dorm infections as inevitable, much like those that occurred in cruise ships, are inappropriate and completely insensitive. The living conditions in a foreign worker dormitory and on a cruise ship are worlds apart. If infectious diseases spread quickly onboard a luxury cruise ship, what more in a dormitory with cramped living conditions and sub-par hygiene standards and maintenance? So the point is that when people live in close quarters for an extended period of time and where infections spread easily and quickly, can we really expect cramped foreign worker dormitories where people live for months and years, in conditions Singaporeans themselves find unacceptable, to emerge from the pandemic unscathed? We turn now to whether the heavy reliance on cheap, transient foreign labour is a sustainable economic formula. Let’s assume that Singapore’s economic formula, requiring large inputs of labour, is sustainable. Straight off the bat, there is the need to provide adequate, decent dormitories and amenities and to provide more open and public spaces for the foreign workers who, like Singaporeans, are entitled to dignity in work and life.

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In the aftermath of the Little India riot in 2013,531 one line of policy thinking was to provide purposebuilt dormitories, with the range of facilities and amenities so that the foreign workers need not venture out and congregate in public places. Such newer and larger dormitories were expected to form an increasingly prominent part of the foreign worker housing landscape. To this end, Parliament passed the Foreign Employee Dormitories Act (FEDA) in January 2015.532 The purpose of the legislation is to establish a regulatory regime for the provision of facilities and amenities and the delivery of services to dormitory residents. Also established is a licensing framework for operators of such dormitories, stipulating certain accommodation standards and providing for the appropriate enforcement mechanisms. The legislation also sought to promote “the sustainability of, and continuous improvements in, the provision of services at foreign employee dormitories”. In moving the Bill in January 2015, then Manpower Minister Tan Chuan-Jin explained that it was the Government’s longer-term view that “the accommodation needs of Work Permit Holders are best met in such dormitories, where there are self-contained living, social and recreational facilities”. More importantly, the law was touted as “a progressive measure aimed at ensuring better design parameters and requirements” for the development of new dormitories.533 Five years on, the deplorable conditions in many dormitories leaves much to be desired, going by the high COVID-19 infection numbers and the litany of complaints by non-governmental organisations, which seem to have fallen on deaf ears. It would not be an exaggeration to say that most, if not all, of the dormitories are not fit for purpose and were conducive to widespread transmission of infectious diseases such as COVID-19. So, what has happened in a short span of five years since legislation was passed? There has to be a no-holds barred thorough review of how and why the ball was dropped. The Ministry of Manpower had indicated in April 2020 that some of the dorms had passed 531 On the Little India riot, see Cheryl Sim, ‘Little India riot’ (Singapore Infopedia, 16 February 2015) <https://eresources.nlb.gov.sg/infopedia/articles/SIP_2015-02-18_104923.html>. The riot erupted in Little India on Sunday, 8 December 2013, following a fatal traffic accident that had occurred along Race Course Road. About 300 rioters took part in the unrest, which was the worst case of public violence in Singapore in over four decades. About 240 officers from the Singapore Police Force (SPF) as well as 56 officers from the Singapore Civil Defence Force (SCDF) were deployed to the scene. The riot left 54 responding officers and eight civilians injured, while 29 vehicles were damaged, five of which were burnt. As a result of the incident, measures such as increased police presence and alcohol restrictions have been implemented in Little India to prevent a repeat of such unrest. A Committee of Inquiry (COI) was convened: see Ministry of Home Affairs Singapore, ‘Report of the Committee of Inquiry into the Little India riot on 8 December 2013’ (30 June 2014) <https://www.mha.gov.sg/newsroom/press-release/news/report-of-the-committee-of-inquiry-into-the-littleindia-riot-on-8-december-2013>. 532 Foreign Employee Dormitories Act 2015 (Act 3 of 2015). The Act was passed by Parliament on 20 January 2015 and assented to by President Tony Tan Keng Yam on 16 February 2015. 533

See Tan Chuan-Jin, ‘Foreign Employee Dormitories Bill Second Reading Speech by Mr Tan Chuan-Jin, Minister for Manpower’ (Ministry for Manpower Singapore, 20 January 2015) <https://www.mom.gov.sg/newsroom/speeches/2015/foreign-employee-dormitories-bill-second-reading-speechby-mr-tan-chuanjin-minister-for-manpower-20-january-2015-300-pm-parliament>.

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inspections as recent as in March 2020. That is worrying as it suggests that the legislated standards are not up to mark. It would also appear that the “occupancy load” in section 2(1) of the FEDA for the dorm premises, which is the maximum number of people that may be accommodated in a dormitory, is too high to the extent that safe distancing is not even realistic or even possible.534 The promise and potential of the FEDA remains only on paper. The massive infections in the purpose-built foreign worker dormitories, which will take a few months to resolve, is a clear testimony that the FEDA has to be improved upon and has also to be more stringently enforced. FEDA provides for a Commissioner who is responsible for the working of the law but to date this public official has not made any public statement (neither is there an indication of such an appointment on the government directory). The Commissioner does not seem to make any annual report that is publicly available. For now, Singapore has no choice but to reduce the density of all types of foreign workers’ housing, which it is now embarking on. The government will be building additional dormitories with higher standards over the coming months and years.535 Otherwise, should another wave of COVID-19 infections hit Singapore (and it probably will), the impact will be too much to bear in terms of work stoppages, remedial measures needed and the healthcare provisions that have to be made to deal with the infections and the abiding threat to public health. Much as it is clear that Singapore will need to reduce the population density of foreign workers’ housing, it remains to be seen how determined the stakeholders are in arriving at a sustainable way forward. The days of huge purpose-built dorms (the largest of which accommodates 28,000 workers) are over.536 There will be changes, for sure, to the living conditions for foreign workers but can we expect to see deep-seated changes to how society views foreign workers. Singapore had an opportunity following the Little India riot in December 2013 – while living conditions were not an issue where the riot was concerned, the question of whether, as a society, Singapore was prepared to bear the costs in an equitable manner of having such a large foreign worker population in Singapore was, in my view, dodged. In fact, I would argue that the purposebuilt dorms and the enactment of the FEDA following the riot only dealt with the symptoms rather than the root causes of the high foreign worker population here. Let’s assume, for a moment, that the standards imposed by law are adequate, then the fault squarely falls on enforcement. All indications seem to point to “benign neglect” in the regulation of the living conditions in the dormitories. The facts speak for themselves. 535 See ‘Improved Standards of New Dormitories for Migrant Workers’ (Gov.sg, 8 June 2020) <https://www.gov.sg/article/improved-standards-of-new-dormitories-for-migrant-workers>. 536 This episode has raised interesting questions of whether foreign workers have to undergo the same set of vaccinations that Singaporeans have to, especially those that deal with infectious diseases such as measles and tuberculosis. 534

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Perhaps the economic downturn that is now manifesting itself may force employers to automate more and properly invest in technology to improve productivity. But the danger is always that when the good times return, employers would resort to more inputs of perspiration rather than investing in inspiration. All attempts at a lower Dependency Ratio Ceiling in the past decade have not moved the needle much. Put simply, it is because the transient labour is cheap, even with the foreign worker levy.537 For real change to happen, the Government and business must agree that this chronic addiction has got to stop. I fear the attempt to ramp up the economy once the downturn is over would result in old habits dying hard. In short, are we really prepared to bite the bullet? Or do we continue to entrap ourselves in economic expediency? Moving on to the issue of whether the costs have been properly allocated among the stakeholders and whether the benefits of such a policy largely privatised while the costs socialised. It is clear that the costs of the poor living conditions, resulting in the widespread infections in the dorms, are socialised. The benefits are privatised when dormitory operators make apparently sizeable profits, when the employers of the workers housed in these dorms are not prepared to pay more resulting in more workers being put to a room. To deal with the massive outbreak, the costs of the meals and healthcare measures for about 300,000 workers living in purpose-built dormitories were borne by the government during the 8-week circuit breaker. This means society effectively foots the bill to make good the lapses and the lack of appropriate standards and/or their enforcement. We cannot continue to reap the benefits of a significant low-wage foreign worker presence here while not properly shouldering the costs that come with it. The trade-offs must be recognised, in form and in substance, and be borne equitably by the government, employers and Singaporeans, and between Singaporeans and the migrant workers. Even if it is a feature of a capitalist system, we need to have an even-handed approach to balancing the privatisation of the benefits and the socialisation of costs. We are all aware that capitalism and market forces are not perfect in allocating resources and ensuring fairness and equity. Singapore has to do her utmost to mitigate The Dependency Ratio Ceiling (DRC) refers to the maximum permitted ratio of foreign workers to the total workforce that a company in the stipulated sector is allowed to hire. For example, the Dependency Ratio Ceiling in the manufacturing sector is 60%. Hence, up to 60% of a manufacturing company’s total workforce (sum of local workers, S-Pass and Work Permit holders) may consist of S-Pass and Work Permit holders. The foreign worker levy is the levy that a company pays to the Government for each S-Pass or Work Permit holder it hires. It is a pricing mechanism that seeks to regulate the number of foreign workers in Singapore. However, the levy does not seem to control well the number of cheap, transient workers. We want or need them but there does not appear to be adequate proper accommodation for them whether it is allocating more land for the dorms. (Another instance of the costs vs benefits.) The levies should be used to improve the living and working conditions of the foreign workers. The money should not be used for other purposes but rather for the benefit of foreign workers so the issue of funds being an issue cannot be cited. 537

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the downsides even as she seeks to derive the benefits of capitalism. We can’t have our cake and eat it, to put it somewhat bluntly. The government has a crucial role, too, in terms of setting acceptable minimum standards and in ensuring proper compliance through robust enforcement. Employers need to think doubly hard about the costs of employing foreign workers. Too often, the fixation is on the supposed value that these workers can generate. Costs are seen as an inconvenience that should be kept as low as possible. But one can’t just think of deriving benefits and value of employing a foreign worker without being prepared to foot the full costs. It is this neglect of achieving a proper balance of costs and benefits that fuels Singapore’s addiction to cheap and transient foreign labour, which has become now untenable. The employers and the dorm operators all seek to extract value from these workers resulting in the living and working conditions of the foreign workers. It is too easy and convenient as well as insensitive to say that these workers do not complain and are grateful for the opportunity to work here. Just because they accept their lot in life does not justify us in not giving due regard to the ethics of their living and working conditions. The harsh reality that cannot be ignored or wished away is that there is an asymmetric power relationship that is at play here. The blunt truth is that these workers lack agency and complaining only exacerbates their precarity. As a society, we ought to treat people with dignity and respect and we should aim to do right rather than to merely comply with the law. Will Singaporeans be willing to be a part of it and pay the extra price? “TINA” is probably the best approach to take: TINA being “there is no alternative”. If Singapore and Singaporeans are not prepared to bear the real cost of having such a large number of cheap, transient foreign workers, then they just have to greatly reduce the dependence on imported labour. Alternatively, the extra cost will have to be shared equitably between the government, the employers, dorm operators, businesses, and consumers (you and me) although employers ought to take a larger share of the extra cost since they are the ones who are requiring them for their operations.538 However, several trade associations and the ethnic chambers of commerce and industry have come together to release joint statements rebutting calls from the public to reduce the number of migrant workers If the cost of hiring migrant workers increases to ensure that they have better living conditions, how much of this increase should trickle down to the end consumer? It must be proportionate in that if the increased costs due to better living conditions is 10%, then the increase that has to be borne by the end consumer should not be more than 10%. If it is more than 10%, then someone along the line (e.g. employer, dorm operator, government) is not bearing their responsibility in a proportionate manner. The higher costs of having migrant workers is now, unfortunately, used to resist efforts to improve the living conditions. Worse, it may signal the intention for some to profit from the higher costs by exaggerating the costs, which should have borne right from the outset. On this issue of profiteering, the Government can take an interventionist approach and carefully scrutinise the increase in costs. It is critical for stakeholders to recognise that the increased costs have to be borne in a proportionate manner. If the buck is passed, ultimately the foreign worker will bear a disproportionate burden, which is unfair. It is important for fairness to prevail. If, as a society, we don’t place a premium on fairness and justice, then I think we will be the poorer for it.

538

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here. They also stated that progress has been made in improving the living conditions of migrant workers, and highlighted their importance to Singapore’s economy.539 Besides building proper accommodation, it may also be apt to consider whether the Progressive Wage Model (PWM) should also apply to foreign workers. The PWM helps to increase wages of workers through upgrading skills and improving productivity. It is implemented in the cleaning, security and landscape sectors.540 As they are an integral part of the workforce, the PWM should be applied to them as well. Otherwise, there is every incentive to hire even more cheap labour and to continue to depress the costs of hiring them whether it’s their wages or the cost of accommodating them. The larger concern of not paying a foreign worker his/her due is not sufficiently according them the necessary dignity. Concerns over workplace safety and health issues point to the massive issues in the way we treat our foreign workers. How the regulatory regime treats foreign workers in Singapore is due for a thorough review and overhaul. But such a review must be situated within an honest and purposeful engagement of the broader questions. At the core, these questions concern the kind of society that Singaporeans aspire towards and, more importantly, the values that will determine how Singapore gets there. Taken together, they impinge intimately on whether Singapore will remain an attractive destination for both short- and long-term foreign manpower with the attendant economic, social, and political trade-offs. As more migrant workers became infected during the circuit breaker, the online vitriol—bothering on xenophobia and racism—also grew. The basis of xenophobia is ultimately fear, including the fear that the migrant worker community threatens our wellbeing, health, and safety. These fears may well stem from ignorance, stereotypes, and close-mindedness, but they can feed into the growing doubt of some Singaporeans towards immigration. Such negative sentiments towards immigration are infectious and counter-productive. Once immigration is perceived to be an existential threat, then the essence of an openness of mind, spirit and heart—so vital in an immigrant society like Singapore—will certainly be overwhelmed by growing angst, anger, and anxiety among Singaporeans and migrants alike. Singapore is at the threshold of the promised mid-term review of the controversial Population White Paper introduced in 2013. To recap, Parliament endorsed the planning parameter of 6.9 million

539 For clippings of various newspaper reports on 28 May 2020 on these statements, see the collection at the Singapore Chinese Chamber of Commerce and Industry’s website at <https://www.sccci.org.sg/2020-mediacoverage>. 540 See, further, Ministry of Manpower Singapore, ‘What is the Progressive Wage Model’ <https://www.mom.gov.sg/employment-practices/progressive-wage-model/what-is-pwm>.

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people in Singapore in year 2030. 541 Can the Government secure a strong buy-in from Singaporeans for its immigration policy embodied in the White Paper? Perhaps the mid-term review of the Population White Paper might be a better indication to the government and businesses that the over-reliance on cheap, transient labour is unsustainable and has come with significant economic, social and political costs. If the costs and benefits of a cheap, transient foreign workforce are properly evaluated and the costs sustainably apportioned among the stakeholders, the costs will continue to grow and a massive correction forced in the future. In my view, the issue bears careful analysis. Singapore should change course resolutely on her own terms rather than being dictated to by circumstances. In the short-term should the costs of hiring migrant workers increase due to less dense living quarters, the knee-jerk reaction is the impact to the cost of doing business and the economy as a whole. Any impact, even if it is significant, will have to be borne equitably by all relevant stakeholders. We can't have our cake and eat it and the earlier we face the reality that the benefits and the costs come hand-in-hand the better. What Singapore has now is an untenable situation in which the migrant worker is often squeezed where his working and living conditions are concerned. When the costs are equitably borne, we may decide that we have to reduce our reliance on cheap, transient labour, which is not a bad thing at all. The massive COVID-19 outbreaks in the foreign workers dormitories have so vividly demonstrated that the inequalities and inequities of having a huge cheap, transient workforce. There is the urgent need to break free from the addiction to cheap labour because that drives up reliance on transient labour. More importantly, it is also unethical to build Singapore and grow her wealth on the back of cheap labour which often means a lack of dignity accorded to these workers. Reducing our reliance on foreign labour has to be at the core of our human capital policy going forward. The harsh reality is that Singapore cannot continue this over-reliance. It's just unsustainable. It harms Singapore and doesn’t speak well of her as a society that seeks human flourishing. So the earlier this race to the bottom ends, the better for Singapore and Singaporeans. There is a patent need for long-lasting changes to how Singapore treats the migrant workers in our midst. As it is, there will be changes in the short- and medium-term given that COVID-19 will remain with us for a year or two and perhaps become a recurring event. But when COVID-19 becomes a distant memory and if Singapore is not committed to treating foreign workers with dignity, the standards will surely start to slip. It will take several years to wean off the addiction to cheap, 541 The White Paper is available online at Prime Minister’s Office, ‘Population White Paper: A Sustainable Population for a Dynamic Singapore’ (9 January 2013) <https://www.strategygroup.gov.sg/mediacentre/population-white-paper-a-sustainable-population-for-a-dynamic-singapore>.

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Â transient labour. It remains to be seen whether the massive COVID-19 infections in the foreign worker dormitories will provide the impetus for Singapore to significantly scale down its reliance on these workers. It is clear that it cannot be business as usual. The issue of how Singapore and Singaporeans treat the foreign migrant workers speaks also to how they can strengthen their collective responsibility and resilience. But, to that end, a thorough and uncompromising examination is needed by all government, individuals, businesses, civil society, educational institutions, and more. Rather, the only way Singapore can do better is to learn the right lessons from this crisis. If not, then the vast sum of money spent, the human toll in terms of pain, suffering, and death, would have been in vain. The issue goes beyond public health concerns but requires a root-and-branch examination of how we have come to treat the workers as such. It would be a larger tragedy if Singapore only dealt with the COVID-19 infections in the dormitories as a public health issue but not engage with the broader questions raised. The scale and intensity of COVID-19 infections in the dormitories is disconcerting and a sad reminder that our foreign worker policy remains problematic. And for that we are all the poorer for it. If Singapore and Singaporeans miss this opportunity to get things right, then the tragic consequence of the callous treatment of foreign workers will come home to roost in the fullness of time. It is evident that the answer to the foreign manpower issue cannot be left to the markets to decide. Rent-seeking has led to the society and the foreign workers bearing disproportionately the costs of their being part of the workforce but not part of society. The current COVID-19 crisis of a generation offers that opportunity to make that pivotal change in the relationship and of mindsets. Will the stakeholders make that decisive change and usher in a new social contract, one in which the legitimacy is rooted in fairness and trust?

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(E)

Online and still on message?

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20. The year of COVID-19: Personal reflections on how traditional pedagogy can be informed by online teaching methods (aka how I changed my mind about online teaching) Ong Ee Ing542 For many terms now (since the SARS crisis occurred in 2006), SMU had been preparing for what it called “emergency preparedness for teaching & learning”. Mainly, it required faculty to practice teaching a few hours a year through online methods. Most of us did it in a rather half-hearted manner, never dreaming that we would actually have to teach this way. Then, of course, came COVID-19 and the almost overnight transition to home-based learning and online teaching. My experiences in this respect were not the best, to say the least. With the transition being done half-way through the term, I did not have the time (or mental bandwidth) to actually “transform” my classes into online teaching mode. The best I could do was conduct class as I would in a face-toface mode, with whatever adaptations I could make for an online mode of teaching. That went about as well as could be expected: meaning not particularly well. There were the usual technical issues, both the expected and the unexpected. I shall draw a merciful veil over the vicissitudes of people’s varying bandwidth capabilities, the (rather outdated) web-conferencing software we had to rely on, as well as everyone’s general inability to remember to “mute” and “unmute” themselves as necessary. Even worse: the changes interrupted my preferred mode of pedagogy, which is a high level of personal interaction with each student and/or small groups of students. Yet once term was finally over and I had time to breathe, I realized that online teaching had made me rethink some of my teaching practices. Indeed, I found certain strengths in online teaching that traditional face-to-face formats lacked. I started considering if we could learn from online teaching practices to improve our current modes of teaching, such as using online tools to improve interactivity and reduce bias in interacting with students. Most importantly, I started reconsidering whether our traditional classroom structures were indeed the best way to teach. In this regard, I speak purely from my personal experiences in teaching law courses, but I believe that these points are also applicable to teaching in other disciplines.

542 Senior Lecturer of Law, Singapore Management University.

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Connectivity In the main, in online teaching I had to get used to teaching without any real-time feedback. I was largely unable to see the students’ faces543 or body language. As such, I was unable to tell whether they were following the material, or even paying attention.544 In addition, the classroom energy was simply not the same. In a face-to-face classroom, the students and I would “feed off” each other’s energy, making classroom discussions far livelier and more involved. This atmosphere was much harder to replicate online. Even my favoured breakout small group discussions did not appear to have the same focus or energy online. It was also hard to tell, popping from one online group to another, whether the discussions were going in the direction I had planned, or whether the students were even discussing the material during the times I was not “visiting” them. Luckily, I managed to encourage connectivity through other means. In place of the real-time verbal back-and-forth discussions, I had the students type their responses and comments onto a shared Google Docs document. The students loved this function, as they had a record of class discussions to which they could refer at any point. This turned out especially helpful for their exam revisions. One student even started jotting down my responses to their comments, labelling them “Prof’s notes”.545 Students also liked the chat function of web-conferencing technology. Wonderfully, those who had been fairly quiet during traditional class-time would happily type out their questions and comments. (This also worked out well for the hearing-impaired student in my class.) In this respect, there were thankfully many other programs which could increase interactivity online: mechanisms for quizzes, polls, brainstorming, and other online class response systems. These helped overcome, in part, the distancing effect of online learning, as well as encouraged students to remain engaged during class-time. Indeed, I believe that such tools could be helpful even in a face-to-face classroom: to gauge student responses, check their understanding of the material, and also just liven up class for the drier topics. Moreover, the technology makes it easy to analyze student responses; it can even grade answers to multiple-choice and short questions. As such, I will continue using these tools even when we move back to face-to-face teaching. 543 When I tried to get everyone to turn on their webcams during the first class, it resulted in some spectacular software crashes. 544 Some students later admitted to tuning into class from their beds. We were all young once. 545 This had the added benefit of demonstrating some aspects of altruism, a boon in an Ethics class.

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Reducing bias In place of verbal questions, I had the students type in their questions on the web-conferencing chat function, to which I would respond at the appropriate time. This, as stated above, helped the quieter students. However, I realized that this method of response was also helpful for reducing instructor bias in the classroom. There is naturally some bias in calling on students in a face-to-face context: prior acquaintance (or even general affinity) with certain students, as well as unconscious bias with regard to race and gender, to name two. This is especially since it is sometimes hard to discern who first raised their hands, in a forest of waving hands. With web-conferencing chat functions, however, it is easy to discern which student first typed a question or “raised their hand” online. This helps to take away any unconscious bias I might have in calling on students for responses. In this respect, classroom technology also makes it easier to keep track of the quieter students, enabling the instructor to encourage them to respond. It also allows the instructor to call on specific groups which are generally under-represented in the classroom discourse.546 Certainly, you can do all of this without technology, but it is much more explicit (and easier to track) with technology.

Optimizing use of actual classroom time Perhaps the most startling realization I had was that our traditional classroom teaching methods, i.e. sitting in a classroom for a fixed number of hours for students to imbibe learning, were actually rather inefficient. This was especially so for classes relying on the lecture system: “The reality is that the lecture is a poor means to engage students with the content, even when presented in an entertaining manner … There is little connection or interaction for the students with peers or the professor. Students endure the experience to get the credit, and faculty long for release time so they can have more time for their research – the primary activity that is recognized and rewarded.”547 Even in seminar-style teaching systems like SMU’s, a not-insignificant amount of material will likely have to be taught through lectures, particularly for the more complex topics.

This can also increase inclusiveness in the classroom setting. See e.g. Kevin Gannon, ‘The Case for Inclusive Teaching’ (The Chronicle of Higher Education, 27 February 2018) <https://www.chronicle.com/article/TheCase-for-Inclusive/242636>. 547 D. Randy Garrison and Norman D. Vaughan, Blended Learning in Higher Education: Framework, Principles, and Guidelines (John Wiley & Sons, Inc, 2011) at pp 75-76. 546

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However, in online teaching it is well-accepted that there will be both synchronous (or simultaneous) and asynchronous (non-simultaneous) learning mechanisms. 548 Asynchronous learning components, particularly lectures, are conducted on the students’ own time, with the synchronous sessions reserved for actual interaction and feedback between instructor and students. Consider, for instance, this example of a redesign of a third-year philosophy course, consisting of approximately 30 students. Aside from re-engineering the assignments and methods of classroom delivery and discussion: “[t]he single weekly class period [reduced from the initial two ninety-minute seminar sessions per week] was now used as an opportunity for the professor to discuss misconceptions in writing she had observed within the electronic portfolio system and for the students to share, debrief, and plan their individual and collaborative writing assignments.”549 This asynchronous/synchronous model of learning could be helpful for many classes, especially skills and/or discussion-focused classes, and even the more traditional doctrinal classes. Materials which are more appropriate for the traditional lecture style could be delivered through pre-recorded lectures, which the students can absorb at their own time and pace. The asynchronous material could also incorporate other modes of asynchronous learning, such as multimedia clips, brief simulations, and online discussion boards where the students raise questions and concerns. Valuable face-to-face class-time (i.e. the synchronous learning components) could then be reserved for productive discussions and feedback. Indeed, face-to-face classroom-time need not be limited to class-wide discussions: it could also be used for small-group discussions and/or oneon-one sessions, depending on the needs of the curriculum. During actual class-time, the instructor could focus on being a facilitator for classroom discussion and debate (whether class-wide, in small groups, or one-on-one). The instructor could also use that time to provide more personalized feedback – for the general classroom as well as for individual students. 550 The increased personalized interaction with faculty, as well as other 548 See e.g. Garrison and Vaughan (n 547) at p 6. 549 Garrison and Vaughan (n 547) at pp 74-75. Indeed, “[t]he student evaluations and comments from the professor indicate that the goal of creating deeper connections between the course’s major topic areas was realized. The professor indicated that the quality and connectedness of the students’ papers increased dramatically and that the reduction in the number of assignments combined with the use of assessment rubrics significantly decreased the amount of time she had to spend on grading. Students stated that the use of the electronic portfolio system and the introduction of the group assignment facilitated a greater sense of meaningful engagement with the course material and their peers ‘inside and outside of the classroom.’” 550 While faculty do often have one-on-one student sessions outside of class-time with students, in the form of office hours and consultations, these sessions are often limited due to time constraints. To have these incorporated as part of mandated classroom time would give the students the assurance of such feedback, and allow faculty more time and leeway in planning such consultations.

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students, could also help reduce concerns about students being shortchanged with reduced classroom time.551 Legal skills classes, for instance, would be significantly improved if students could have a mix of the above types of sessions: the class-wide discussions would be helpful for discussing overarching concepts and questions, while the small group and one-on-one sessions could be devoted to individualized feedback. Even doctrinal classes could benefit from this approach, as students would likely be more willing to speak up and clarify their concerns in small-group (rather than class-wide) settings. Using class-time in this way would also be beneficial for encouraging project-based work. Using the asynchronous materials provided as a basis for learning, the students could then focus their efforts on the required projects, and use actual class-time for peer consultation, obtaining in-person feedback on their projects, and fine-tuning their work. This, of course, is not a new idea. Indeed, proponents of blended learning552 have long advocated a pedagogical approach that harnesses and merges the relative strengths of face-to-face and online modes of learning, to create and sustain vital communities of inquiry.553 And certainly this has been happening in some respects.554 However, such approaches appear to be the exception rather than the rule. The experiences of last term have shown that there is much work to be done in encouraging the adoption of such an approach in higher education.

551 Greta Anderson, ‘Feeling Shortchanged’ (Inside Higher Ed, 13 April 2020) <https://www.insidehighered.com/news/2020/04/13/students-say-online-classes-arent-what-they-paid> accessed 12 July 2020; Bob Van Voris and Janet Lorin, ‘Angry Undergrads Are Suing Colleges for Billions in Refunds’ (Bloomberg, 1 May 2020) <https://www.bloomberg.com/news/articles/2020-05-01/angry-undergrads-studyingonline-sue-for-billions-in-refunds> accessed 12 July 2020; Jeffrey R. Young, ‘Why Students Want Tuition Refunds Over Shift to Online Teaching’ (EdSurge, 12 May 2020) <https://www.edsurge.com/news/2020-05-12why-students-want-tuition-refunds-over-shift-to-online-teaching> accessed 12 July 2020. However, it should be noted that many of these complaints are not just about classroom instruction methods but also about missing out on the overall residential college experience, which is a different discussion altogether. 552 Blended learning has also been referred to as “hybrid learning,” “mixed-mode instruction,” “differentiated instruction,” and “technology-mediated instruction”, among other similar terms. See e.g. Krasulia A, ‘Blended Learning: Advantages and Disadvantages in the EFL Classroom’ (Sumy State University, 2017) <https://essuir.sumdu.edu.ua/bitstream-download/123456789/67256/1/Krasulia_Blended_Learning.pdf>. 553 Garrison and Vaughan (n 547). 554 See, e.g. Calvin Yang, ‘Universities adopting 'flipped classroom' learning’ (The Straits Times, 13 July 2015) <https://www.straitstimes.com/opinion/universities-adopting-flipped-classroom-learning> accessed 6 July 2020. SMU also has a number of blended learning courses, SMU Centre for Teaching Excellence, ‘Blended Learning’ <https://cte.smu.edu.sg/blended-learning-1>, as well as the project-based SMU-X courses, ‘What is SMU-X?’ <https://x.smu.edu.sg/about/what-is-smu-x> both accessed 6 July 2020.

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Challenges Adopting such changes will require adjustments in traditional pedagogical thinking. For one, we will have to trust students to prepare for class on their own time, so that classroom time can be effectively used in the abovementioned methods. And certainly, there is no assurance (but has there ever been any?) that students will do the required work beforehand. However, mechanisms can be put in place to give students incentives to do the work, or more accurately, disincentives to not do the work. For instance, students could be required to respond to short quizzes before class, which test them briefly on specific course materials. They could also be required to post short reflection pieces on specific materials, and participate in online discussion forums outside of classroom time.555 The drawback, of course, is that adopting such changes would mean more work, for both faculty and students. For faculty, the time saved from being physically in the classroom would be taken up by the time required for class preparation, including but not limited to: recording lectures and creating other material for students’ learning outside of the classroom, establishing effective online discussion forums, creating (and reviewing the results of) appropriate quizzes, short assignments and other material for testing the students’ understanding of the class materials, and providing personalized feedback for each student.556 However, one benefit is that preparing most of these materials (aside from the personalized feedback) would be largely one-off activities. For instance, a video, once recorded, can be reused for other sections of the same course. Additionally, materials that are not time-sensitive (such as certain basic legal concepts) would not need to be changed; at most they would need to be updated once or twice a year to account for recent developments. “Learning” quizzes and other short assignments have the same advantage. For students, they would have to be far more pro-active in their learning. They would have to schedule time not only to do the usual readings, but also to watch and understand the lecture videos and other materials; complete the multiple pre-assigned quizzes and other “learning” assignments, as well as participate in other activities such as online discussion forums. There are

In fact, technology affords us greater ability to track whether students have done the required readings, watched the required videos, or taken the required online assignments. 556 See e.g. McKenzie, B., Mims, N., Bennett, E., & Waugh, M. “Needs, concerns and practices of online instructors” (2000) 3(3) Online Journal of Distance Learning Administration <https://www.westga.edu/~distance/ojdla/fall33/mckenzie33.html>; Clair Howell Major, “Do Virtual Professors Dream of Electric Students? University Faculty Experiences with Online Distance Education” (2010) 112 (8) Teachers College Record, at pp 2154–2208. 555

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also more fundamental concerns about students’ differential access to technological resources, or even conducive home learning environments.557 Nonetheless, if such methods go towards allowing students more flexibility in their learning and increasing efficiency of learning in the classroom, it would be worthwhile to further engage the benefits of combining both online and face-to-face learning.

Conclusion Current evidence seems to indicate that the world will not revert to pre-COVID-19 norms. In particular, work from home looks to become the new normal.558 Despite numerous articles having come out in support of face-to-face teaching,559 online learning has also gained new traction in the education system.560 While I remain convinced that the best education is largely a social process and that the best learning happens when students are able to exchange views, debate, argue their point of view and collaborate with others in real-world projects,561 that learning does not have to confined to the boundaries of the physical classroom during set periods of time.

557 See e.g. Lim Sun Sun, ‘Commentary: The joys and frustrations of home-based learning’ (Channel News Asia, 8 April 2020) <https://www.channelnewsasia.com/news/commentary/home-based-learning-COVID-19coronavirus-singapore-tips-parents-12618236> accessed 20 July 2020; The Learning Network, ‘What Students Are Saying About Remote Learning’ (The New York Times, 9 April 2020) <https://www.nytimes.com/2020/04/09/learning/what-students-are-saying-about-remote-learning.html> accessed 20 July 2020. 558 See, e.g. Laurel Farrer, ‘The New Normal Isn’t Remote Work. It’s Better’ (Forbes, 12 May 2020) <https://www.forbes.com/sites/laurelfarrer/2020/05/12/the-new-normal-isnt-remote-work-its-better/> accessed 12 July 2020; ‘Employers must adjust mindsets, embrace working from home as new normal: Lawrence Wong’ (Channel News Asia, 23 May 2020) <https://www.channelnewsasia.com/news/singapore/employers-workingfrom-home-COVID-19-new-normal-lawrence-wong-12763298> accessed 12 July 2020; Justin Harper, ‘Coronavirus: Flexible working will be a new normal after virus’ (BBC, 22 May 2020) <https://www.bbc.com/news/business-52765165>; Rob McLean, ‘These companies plan to make working from home the new normal. As in forever’ (CNN Business, 25 June 2020) <https://edition.cnn.com/2020/05/22/tech/work-from-home-companies/index.html> accessed 12 July 2020. 559 John Ross, ‘Pandemic ‘confirms face-to-face teaching is here to stay’’ (Times Higher Education, 4 June 2020) <https://www.timeshighereducation.com/news/pandemic-confirms-face-face-teaching-here-stay> accessed 28 June 2020. 560 See also Ang Hwee Min, ‘MOE to review how to 'blend' classroom and digital online learning as schools reopen after COVID-19 circuit breaker’ (Channel News Asia, 2 June 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19-schools-classroom-digital-online-home-basedlearning-12795720> accessed 12 July 2020 (“We totally understand home-based learning and digital online learning cannot substitute classroom learning. But having forced ourselves to do this for a whole month, we also learned how to do it better, and that there are certain strengths in online learning that actually, classroom learning does not have.”); Anita Lie, ‘The new normal in education’ (The Jakarta Post, 20 June 2020) <https://www.thejakartapost.com/academia/2020/06/20/the-new-normal-in-education.html> accessed 12 July 2020. 561 Sandra Davie, ‘How the pandemic will change universities’ (The Straits Times, 22 June 2020) <https://www.straitstimes.com/singapore/education/how-the-pandemic-will-change-universities> accessed 28 June 2020.

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If indeed the world will never be the same again, we should seriously consider how we can best remake our educational systems, to produce better learning outcomes for our students. And one way to do this is to consider how we can improve our traditional modes of teaching through incorporating online teaching norms and modes.

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(F)

Legitimacy and reasonable remedies?

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21. Legislating and enforcing for containment in a pandemic: an introduction to jurisprudential issues raised by COVID-19 (Temporary Measures) (Control Order) Regulations 2020 Tan Seow Hon562 This short article uses selected provisions of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 relating to ordinary day-to-day living as a launchpad for exploring jurisprudential issues raised in the process of legislating and enforcing for containment in a pandemic where the scientific community is still struggling to catch up with the pathogenesis.

Introduction The COVID-19 (Temporary Measures) Act 2020 563 (‘the Act’) was passed by Parliament and assented to by the President on 7 April 2020. The Minister of Health is empowered by section 34 of the Act to make regulations, known as control orders, ‘for the purpose of preventing, protecting against, delaying or otherwise controlling the incidence or transmission of COVID-19 in Singapore’.564 The Minister must be satisfied that the incidence and transmission of the diseases constitute a serious threat to public health and that the control orders are necessary or expedient to supplement the existing laws, such as the Infectious Diseases Act. 565 These orders can, amongst other things, restrict the movement of people; limit activities; close facilities; and restrict business, work, events and gatherings.566 The Act supports what Prime Minister Lee Hsien Loong (‘PM Lee’) announced to be a much-needed ‘circuit breaker’ to ‘pre-empt escalating infections’.567 On the day the Act came into force, the Minister enacted the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (‘the Regulations’). 568 In view of the evolving situation, this subsidiary legislation has, as of 19 June 2020, been amended nine times.569

562 Associate Professor of Law, Singapore Management University. 563 COVID-19 (Temporary Measures) Act 2020 (No 14 of 2020) 564 ibid, s 34(1). 565 ibid, s 34(1); see also Infectious Diseases Act (Cap 137, Rev Ed 2003). 566 COVID-19 (Temporary Measures) Act 2020 (No 14 of 2020), s 34(2). 567 ‘PM Lee: the COVID-19 situation in Singapore (Gov.sg, 3 April 2020)’, <https://www.gov.sg/article/pm-leehsien-loong-on-the-COVID-19-situation-in-singapore-3-apr> accessed 19 June 2020. 568 The original subsidiary legislation is SL 254/2020. 569 S 261/2929 (9 April 2020); S 262/2020 (10 April 2020); S 273/2020 (15 April 2020); S 274/2020 (15 April 2020); S 319/2020 (25 April 2020); S 357/2020 (1 May 2020); S 359/2020 (5 May 2020); S 428/2020 (2 June 2020); S 473/2020 (19 June 2020). Given the multiple amendments, when the more interesting amendments for illustrating the jurisprudential concerns are traced in this article, references will be made to news articles referring to the amendments rather than the particular subsidiary legislation or guidelines from the government departments that effected the amendment, so that readers have easy access to the information about the changes. This article is up to date as of 19 June 2020, the start of Phase 2 of reopening.

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The multiple amendments in a short span of time is understandable from the point of view of changing needs and new knowledge in an evolving pandemic. But it would have been unusual if multiple amendments had taken place in ordinary times. In a fast-developing pandemic situation where the scientific community is still struggling to catch up with the pathogenesis, how do ordinary expectations of rule of law in the process of legislation play out? To what extent should we expect lawmakers to demonstrate a principled consistency across different areas when they have to come up with regulation on a massive scale that involves coordination across many government ministries in a short time? What should the official approach towards policing of violations and enforcement of the regulations be? From the perspective of subjects of the law, what is the interplay between a sanction-based motivation and a public good-based motivation for compliance with the law, and how does that influence official approaches to regulation and enforcement? Are particular approaches to interpreting the legal requirements especially applicable, as there may be gaps in the regulations? Lawmakers and officials enforcing the laws may not have directly raised these questions. But looking back at the process of legislating and enforcing in the pandemic thus far, it is interesting to examine the extent to which these concerns undergirded or ought to have undergirded the approaches. This short article uses selected provisions of the Regulations as a launchpad for introducing jurisprudential issues commonly raised in relation to the process of legislation and enforcement in ordinary situations, with a view to exploring how expectations may be varied in the case of legislating and enforcing for containment in a pandemic. The focus will be on selected control orders that restrict ordinary day-to-day living. Part II explicates some concerns, identified by HLA Hart, that determine the choice to employ statutes to regulate an area, over leaving the area for common law rulemaking. Part III explores, through Ronald Dworkin’s idea of integrity in law, the concern with principled consistency across different rules. Part IV examines how Lon Fuller’s eight requirements of the internal morality of law, which are concerns of rule of law, play out in relation to legislation in urgent situations. Part V looks at the themes of sanctions, official enforcement, and motivation for obedience on the part of subjects of the law, which are themes explored by legal positivists such as John Austin and Hart. Part VI uses Dworkin’s interpretive approach to explore the idea of interpretation of laws according to their spirit. Part VII offers a brief conclusion.

II. Legislation through statutes or common law A preliminary big picture jurisprudential question that lawmakers confront is whether to regulate an area by parliamentary legislation or common law rules. The process of legislating through parliament allows comprehensive rules to be enacted, precise regulation of conduct, and swift, drastic, and broad changes to the law. But as HLA Hart noted, legislators may be especially

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concerned about laboring under ignorance of fact and indeterminacy of aim.570 This contrasts with the luxury of common law rulemaking through authoritative cases that set precedents for future cases, where the adjudicator is understood to be formulating a rule for similar cases without having to deal comprehensively with an entire area. Law is made on a case-by-case basis, and changes to the law are incremental, with a focus on ensuring that like cases are treated alike. Despite the emerging science in relation to COVID-19, what is clear is that COVID-19 calls for legislation rather than common law rulemaking which would be too slow to implement instantly required changes in human conduct. The balance is struck through having a statute with a general objective that remains constant – that is, to contain the spread of COVID-19, while delegating to the Minister of Health the power to effect quick and frequent changes through subsidiary legislation. Allowing subsidiary legislation can make up for the relative ignorance by allowing amendment when new knowledge about the spread of the virus emerges and when measures can be assessed for their effectiveness. This ensures that the Government does not have to wait for Parliament to debate over an amendment before it is passed by Parliament and assented to by the President.

III. Integrity in the law: a principled approach as the essence of justice A jurisprudential concern of legislators is that laws should be broadly coherent in terms of the underlying principles across different areas of law and across different provisions within a statute. These are more particular demands of the principle of justice that we commonly understand as the principle that like cases should be treated alike. Dworkin has expressed this as a demand of integrity: we value legislators acting according to a coherent set of principles. While diverse social goals may be pursued, ‘checkerboard’ statutes which are not coherent in terms of underlying principles should be avoided.571 Such a demand is challenging where legislating for COVID-19 is concerned because the regulations have to be quickly made, and they concern all areas of regular life and every industry in society. Extensive coordination is required between the lawmaking branch of government and the specific government ministries in charge of different industries and different areas of social life. There is also a need for understanding of the minutiae of different industries to know what services are offered and which to classify as essential572 once it was decided that during the circuit breaker HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) pp 128-129. 571 Ronald Dworkin, Law’s Empire (Belknap Press 1986) pp 179-184. Integrity is a value that is over and above treating like cases alike but the elaboration is not necessary for this article. 572 Ministry of Health Singapore ‘Examples of Essential and Non-essential Services’ <https://www.moh.gov.sg/docs/librariesprovider5/pressroom/press-releases/annexa3685da33172d4ed08bb310ec24a440f8.pdf> accessed 19 June 2020. 570

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only essential services could remain open. For example, within the healthcare industry, elective surgery was put on hold, and a decision had to be made to discern what counted as elective surgery.573 The level of mastery of detail demanded of the different government ministries was almost funny if not for the overall severity of the situation: for example, under veterinary services, anal gland expression for dogs in the absence of clinical signs was regarded as not essential,574 even though some dog owners might take the view that, given regular clogging, the emptying of anal sacs of dogs was an important regular routine to be performed at the vet or the groomers, in order to avoid dreaded clinical signs.575 A decision might also engender dispute, such as when mental health services were not included in the list of essential services that were exempt from closure.576 Given the monumental nature of classification which had to occur within a short time, some re-classification was to be expected, as was the case with mental health services.577 The fact that lay persons have an intuitive aversion to checkerboard solutions and expect coherence in principle in the treatment across different areas is revealed by anecdotal evidence, such as when questions were raised as to why hairdressers could operate but psychologists could not, under the initial list at the start of the circuit breaker. Shops selling desserts and those selling beverages remained open initially under the circuit breaker rules, prompting comments as to the sensibility of regarding bubble tea or cakes as essential in a pandemic. Thus, amendments for tightening had to go into the minutiae of leaving shops selling primarily bread products open while those selling primarily cakes closed.578 Quite evidently, in Singapore, breakfast is essential but not afternoon tea. When bubble tea shops were ordered to be closed as part of the tightened measures, a different kind of news was made as queues formed for people to get their last fix and

Joyce Teo, ‘Coronavirus: Hospitals in Singapore may resume elective procedures in gradual manner’ (The Straits Times, 15 May 2020) <https://www.straitstimes.com/singapore/health/hospitals-may-resume-electiveprocedures-in-gradual-manner.. 574 Fasiha Nazren, ‘Circuit breaker: Elective vet services, including husbandry & sterilisation, not provided at vet clinics’ (Mothership, 8 April 2020) <https://mothership.sg/2020/04/vet-COVID-19-sterilisation/> accessed 19 June 2020. 575 Jennifer Nelson, ‘Why is My Dog Scooting’ (American Kennel Club, 31 October 2019) <https://www.akc.org/expert-advice/health/why-is-my-dogscooting/#:~:text=Scooting%20a%20bottom%20across%20the,issue%20like%20allergies%20or%20parasites.> accessed 19 June 2020. 576 Wong Yang, ‘Mental health practitioners disappointed by ‘non-essential’ status of psychological treatment under COVID-19 circuit breaker measures’ (The Straits Times, 13 April 2020) <https://www.straitstimes.com/singapore/mental-health-practitioners-disappointed-by-non-essential-status-ofpsychological> accessed 19 June 2020. 577 ‘Psychology, podiatry and other allied health services re-classified as essential under COVID-19 circuit breaker: MOH’ (Channel News Asia, 28 April 2020) <https://www.channelnewsasia.com/news/singapore/coronavirus-COVID-19-health-essential-services-therapyrehab-12683960> accessed 19 June 2020. 578 Ministry of Trade and Industry Singapore, ‘Tightened List of Essential Services and Measures for Workplaces Which Remain Open’ <https://www.mti.gov.sg/-/media/MTI/Newsroom/Press-Releases/2020/04/TightenedList-of-Essential-Services-and-Measures-for-Workplaces-Final-Revision.pdf> accessed 19 June 2020, Annex A, Para 5. 573

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a scuffle ensued.579 The desire of some for coherence in the regulation was satisfied, but a thirst of a quite different kind manifested. Living up to our twin reputation for pragmatism and for being a food nation, some were of course quick to come up with a solution – a recipe for home-made bubble tea.580

IV. Rule of law in the legislative process Lon Fuller suggests that law is a purposive enterprise of subjecting human conduct to the governance of rules, 581 and as such, has certain moral qualities. This conception of law is manifestly evident with the Act and the Regulations, as they regulated a wide range of human conduct with the objective of containment of COVID-19. What are the moral qualities? Fuller suggests there are eight principles of the internal morality of law which are also principles of legality. These are requirements that are essential aspects of the phenomenon of law, and hence they are principles of legality that must be considered by those wishing to rule by law rather than brute power. They are also ‘moral’ in that rulers who seek to rule by law must abide by them in order to respect the dignity of human subjects, in a basic sense. Subjects are persons capable of complying with rules. If someone does not want a sanction to be applied to him, he can avoid the act that attracts the sanction. Respecting the dignity of subjects is demanded by morality. Fuller’s first requirement is that laws must be general, rather than apply on an ad hoc basis. One can see that this ensures that people in similar situations are treated alike, and not at the whim or absolute discretion of the rulers. Second, there must be publication of laws. For laws to properly govern a subject, they must be made known to the subjects. Not everyone would read the statute books, but the pattern of behavior adopted by some citizens who are aware of the law would create awareness of the legal norm. Those involved in a particular activity governed by an area of law must apprise themselves of the law governing the area. Third, there should be no abuse of retroactive laws. If a law is formulated only after an act is done and seeks to penalise someone for the act that was not illegal at the time it was done, this contravenes our understanding of fairness. Fourth, laws should be clear, so that subjects know what conduct is required. Fifth, there should Jean Lau, ‘Long queues at bubble tea shops after more businesses told to close by midnight under stricter COVID-19 measures’ (The Straits Times, 21 April 2020) <https://www.straitstimes.com/singapore/coronaviruslong-queues-spotted-at-bubble-tea-shops-following-temporary-closure> accessed 19 June 2020; David Sun, ‘Grab delivery rider arrested after raising a ruckus at bubble tea shop’ (The New Paper, 23 April 2020) <https://www.tnp.sg/news/singapore/grab-delivery-rider-arrested-after-raising-ruckus-bubble-tea-shop> accessed 19 June 2020. 580 Fasiha Nazren, ‘This is how to make your own bubble tea & pearls during circuit breaker period’ (Mothership, 22 April 2020) <https://mothership.sg/2020/04/bubble-tea-recipe-circuit-breaker/> accessed 19 June 2020. I include this in a light-hearted manner. 581 Lon L Fuller, The Morality of Law (rev edn, Yale University Press 1969) at p 106. 579

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be no enactment of contradictory rules, since an attempt to comply with one rule might, for example, lead to violation of another rule, leaving subjects in a Catch-22. Sixth, laws should not require the impossible, as subjects would fall foul of such laws through no moral fault of their own. Seventh, laws should be constant through time. Frequent changes of a particular law are problematic for various reasons. For example, one might have acted upon a particular law, only to find that before one’s activity was complete, a different law governed the situation. This would be unfair for defeating legitimate reliance on the law. Or, the law could not be effective in its function of regulating human conduct as people might not be adequately apprised of rapidly and frequently changing rules, rendering the second requirement of publication possible to satisfy but not truly serving its purpose. Finally, there should be congruence between official action and the rules as announced.582 At a basic level, this ensures that no one gets special treatment and is let off by officials because of his social standing or because he pays a bribe. Fuller’s requirements are not all equally important, but legislators committed to the rule of law, rather than rule at whim, should aspire to fulfil them as much as possible. In terms of the interplay of the requirements, infringements may be cumulative.583 For example, changes in social situations or in human knowledge may demand for changes in the law; if the changes are rapid, in order for the laws to serve their objective, they must change fairly rapidly. While the requirement of publication can be served, its role in ensuring awareness of the law is negatively affected by frequent changes. This tension is most evident in the COVID-19 situation. In a fast-evolving pandemic, the peculiarities that may affect the ability to meet these principles of legality concern the relative ignorance in relation to medical science and the unpredictability of human behavior in society. First, scientific knowledge as to COVID-19’s pathogenesis is evolving. For example, initially it was thought that the way the virus was transmitted was similar to the coronavirus which caused the severe acute respiratory syndrome (SARS) in 2003. Subsequently, it came to light that asymptomatic patients could be infectious and that the COVID-19 virus was highly contagious. Each new piece of information should commonsensically impinge on the kind of measures that were needed for containment, such as the quarantine of those who had arrived in Singapore from countries with widespread infection even if they were not symptomatic. Second, insofar as drastic unprecedented measures such as lockdowns were implemented, an entire population’s day-to-day conduct was affected. The ability of people to understand how new social norms could help to contain the virus and their willingness to abide by these new norms were unknowns from the perspective of legislators. For example, when it turned out that restrictive measures led people to congregate in certain public spaces such as sports stadiums, which would be counter-productive to viral containment, certain spaces had to be closed. The regulations had ibid at pp 46-91. 583 ibid at p 92. 582

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to be amended. They could have been made extremely restrictive from the outset for containment’s sake, but this would have been detrimental to other legitimate concerns of government, such as the liberty of subjects and the need to salvage the economy. If a middle ground is chosen to balance the concerns, amendments would be expected if extant measures were inadequate. Understanding the philosophical underpinnings of Fuller’s eight requirements is critical to assessing the circumstances under which, and the extent to which, each requirement may be compromised while a legislator stays true to the rule of law. The second, fifth, sixth, seventh, and eighth requirement are of special interest in the process of legislating in relation to COVID-19. Publication serves the purpose of conveying the regulation to subjects of the law, respecting them as persons who can act accordingly if they want to avoid sanctions for violating the law. It also serves as a check on officials as subjects are only liable if the elements of the offence are made out. Awareness on the part of subjects allows the law to serve its true purpose, which is to secure particular desirable conduct in society, rather than punish or remedy only after an act has been done. This is all the more important in the COVID-19 situation as fines and imprisonment serve to deter undesired conduct, and the true objective is to prevent the damage that could be done from the conduct, for example, of gathering in groups. Publication that serves its purpose must occur through effective communication, especially if the required conduct involves a deviation from the usual, and all the more if the habit is deeply entrenched. Not gathering with others, having to keep a physical distance from others, and not going out of the house except for very limited purposes are deviations from ordinary day-to-day living that most people take for granted. The regulations require the counter-intuitive and involve a cessation of the habitual. As such, the requirement of publication takes on special importance. Ordinarily, if a situation is not as exigent and changes are not so numerous and drastic, the awareness on the part of some people of the law would change behavior and set the norms for society. The purpose of containment would be defeated if awareness of new legal norms took place too slowly. The problem, though, is that frequent changes of the regulations could defeat the function of publication, as the burden of keeping up with the law is too much. But even as necessary changes were implemented, for example, when it was found that groups were exercising in public sports facilities like stadiums which had to be closed, the government pulled out all the stops to ensure that there was awareness of the changes. In that sense, despite numerous refinements of the regulations, enforcement of the regulations would not be unfair. Aside from relying on advertisements in the dailies and on television, social media was extensively used to keep

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everyone updated.584 Signs were put up in public spaces, for example, to inform the public that they should only exercise alone. Tape was used to barricade off-limit areas in parks. Tape was also used to mark spaces that should not be used as physical distance could not be maintained between the users, for example, on public benches. Facilities that could be closed, such as stadiums, were closed, preventing those claiming they were not aware from violating the law. Car parking facilities at public parks were closed, given that the regulations stipulated that there were limited purposes for which one could leave one’s residence, including to exercise at public parks, but leaving one’s residence to do any of the permitted acts under Rule 4(3) of the Regulations during Phase 1 of the circuit breaker had to be done with ‘all reasonable speed’.585 Given the extensive network of park connectors and parks all around Singapore, it might have been the view that one would not need to drive to a park to exercise if one was leaving one’s residence to exercise and doing so with ‘reasonable speed’. Closure of car parking facilities at parks are strictly speaking not ‘publication’, but they do achieve a form of suasion by making it more difficult to deviate from the spirit of Rule 4(3). The seventh requirement that laws have to be fairly constant through time understandably has to take a backseat in such legislating, in order for the government to be able to respond efficaciously to emerging knowledge as well as to discern whether greater precision or stricter measures were necessary. The attitude relating to the donning of masks provides a good example. Initially, the official position was that it was not necessary to wear masks in public, except if one was ill. Sensible and responsible usage of masks was encouraged. 586 Given the sudden surge in demand and global concerns with the dwindling stockpile of personal protective equipment, with broken supply chains and lockdowns slowing down manufacturing, this was understandable.587 With more cases in the community and some acknowledgement of the possibility of spread of disease by asymptomatic persons, the government said it would no longer discourage the wearing of masks. 588 Shortly after, it became an offence not to wear masks in public, except for limited Ministry of Communications and Information Singapore, ‘Gov.sg launches new channels to keep the public informed about COVID-19’ (2 April 2020) <https://www.mci.gov.sg/pressroom/news-andstories/pressroom/2020/4/gov-sg-launches-new-channels-to-keep-the-public-informed-about-COVID-19> accessed 19 June 2020. The press release stated that Telegram and Twitter were added to existing platforms on Facebook, Instagram and WhatsApp with a view to offering ‘more options for the public to get information on COVID-19’. 585 The reference to ‘all reasonable speed’ was not in the original subsidiary legislation enacted on 7 April 2020 (SL 254/2020). It was enacted in the amendment on 10 April 2020 (S 262/2020). Notably, this inclusion coincided with PM Lee’s call for all to comply with the spirit of the law. See text accompanying n 569. 586 Adeline Leong, ‘Supply of masks in Singapore sufficient, no need to rush to buy them: Lam Pin Min’ (The Straits Times, 28 January 2020) <https://www.straitstimes.com/singapore/supply-of-masks-in-singaporesufficient-no-need-to-rush-to-buy-them-lam-pin-min> accessed 19 June 2020. 587 World Health Organization, ‘Shortage of personal protective equipment endangering health workers worldwide’ (3 March 2020) <https://www.who.int/news-room/detail/03-03-2020-shortage-of-personalprotective-equipment-endangering-health-workers-worldwide> accessed 19 June 2020. 588 Amir Yusof, ‘Government will no longer discourage people from wearing face masks, reusable masks to be distributed’ (Channel News Asia, 3 April 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19coronavirus-reusable-face-masks-singapore-pm-lee-12606598> accessed 19 June 2020. 584

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situations.589 In the meantime, efforts to replenish the stockpile had borne some fruit.590 Constant changes might at first blush give subjects a sense that the decision-makers were uncertain, but the alternative would have been stringent measures from the outset, which might have provoked a different kind of criticism. The changes engendered some criticism591 and, anecdotally, confusion over the minutiae of what was required by the law, showing that despite best efforts at publication and the fulfilment of the second requirement of Fuller, there would be problems if circumstances were such that the seventh requirement had to take a backseat. In relation to masks, Fuller’s sixth requirement that laws should not require the impossible was also showcased. In order that people could comply with the law relating to wearing of masks, masks had to be available. The government had distributed masks to households even before masks were mandated. 592 Indeed, very early on, the government had also been involved in discouraging profiteering over the sale of masks, 593 and had also taken action against profiteering.594 The fifth requirement that laws should not be contradictory can also be seen in relation to provisions for alternative procedures where regular laws impose an obligation which cannot be fulfilled if the control orders are in place. For example, if the control orders restrict gatherings or leaving the house other than for particular purposes, but regular laws impose obligations to meet, these laws are contradictory. To address this, section 27 of the Act provides for alternative arrangements to be prescribed, effectively suspending the operation of contradictory regular laws. This is only fair so that subjects would not be found to comply with the Act at the expense of violating other laws or comply with those other laws while violating the Act. 589 Michael Yong, ‘COVID-19: What the law says about having to wear a mask when outside your home’ (Channel News Asia, 15 April 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19-singaporemasks-going-out-law-12643120?cid=h3_referral_inarticlelinks_24082018_cna> accessed 19 June 2020. 590 Natasha Meah, ‘Singapore is building up mask stockpile, but people should not take availability of masks for granted: Chan Chun Sing’ (TODAY Online, 21 May 2020) <https://www.todayonline.com/singapore/singaporebuilding-mask-stockpile-people-should-not-take-availability-masks-granted-chan-chun> accessed 19 June 2020. 591 S Ling, ‘Netizens criticise government’s “reactive” response, mocking their U-turn on mask policy’ (The Online Citizen, 15 April 2020) <https://www.theonlinecitizen.com/2020/04/15/netizens-criticise-governmentsreactive-response-mocking-their-u-turn-on-mask-policy/> accessed 19 June 2020. 592 Wong Pei Ting, ‘Govt to distribute masks to all 1.37 million Singapore households amid Wuhan virus outbreak’ (TODAY Online, 30 January 2020) <https://www.todayonline.com/singapore/govt-distribute-masksall-137-million-singaporean-households-amid-wuhan-virus-outbreak> accessed 19 June 2020. A second round of distribution of better masks has since occurred (Cindy Co, ‘COVID-19: Singapore to distribute improved reusable masks via vending machines, community centres from May 26’, (Channel News Asia, 21 May 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19-coronavirus-where-collect-reusable-maskimproved-12757066> accessed 19 June 2020). 593 Janice Heng, ‘Singapore retailers, e-commerce platforms asked to cooperate in stopping mask profiteering’ (Business Times, 30 January 2020) <https://www.businesstimes.com.sg/government-economy/singaporeretailers-e-commerce-platforms-asked-to-cooperate-in-stopping-mask> accessed 19 June 2020. 594 ‘MTI inspects 3 Stars’ premises amid complaints of COVID-19 mask profiteering’ (Channel News Asia, 17 February 2020) <https://www.channelnewsasia.com/news/singapore/coronavirus-COVID-19-mti-3-stars-masksprices-12442304> accessed 19 June 2020.

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As for the eighth requirement of Fuller that relates to congruence between official action and the law as announced, aside from situations of bribery that lend to a failure to meet this requirement, Fuller was also concerned about the need for proper interpretation of a law so that it can be properly applied. Where legislating for COVID-19 was concerned, heeding the eighth requirement might guard against any invidious situation resulting from selective enforcement of such laws. Given that everyone’s day-to-day living was severely affected, it was everyone’s duty to pay the price of inconvenience. As such, no subject should have an unfair advantage of being able to go about with the usual activities of life without suffering sanctions. Requiring congruence between official action and the law as announced guards against this. The issue of enforcement is dealt with more fully in the next Part.

V. Obedience, sanctions and efficacy Austin’s theory of law as sovereign commands 595 has been criticised for its undue focus on sanctions as well as its description of the populace having a habit of obedience when elucidating the concept of law. Hart suggests that the essence of law cannot be adequately captured by the ideas of sanctions or of habits.596 He is of the view that Austin’s idea of law as a coercive order fails to distinguish law from a gunman’s order which puts one in fear of sanctions if one does not comply.597 Law imposes obligations, and when one acts in accordance with law, one is neither behaving merely habitually nor out of a fear of sanctions. It is meaningful to examine one’s internal point of view when one acts in compliance with law. Hart terms this point of view, shared by most members towards the conduct in question, as the critical reflective attitude. It is displayed in criticism by members of those who deviate or threaten to deviate from a norm, demands for conformity, acknowledgment that the line of conduct and the criticisms and demands in question are proper and justified, and is accompanied by normative vocabulary such as ‘ought’, ‘must’, and so on. The critical reflective attitude is not a feeling, in that there needs to be no feeling of compulsion.598 It is also not necessarily a moral point of view.599 Much has been written about the Austin-Hart debate and I will not rehash it here. The brief introduction suffices for us to discuss various points of interest in relation to the Regulations. The laws in place to contain COVID-19 are interesting in various ways.

595 This is propounded in his classic, John Austin, The Province of Jurisprudence Determined (first published 1832, John Murray 1832). 596 Hart (n 570) c. III and IV. 597 ibid pp 19-20. 598 ibid p 57. 599 ibid p 257.

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First, being regulations to contain a disease, they are easily seen as serving a public good of the health of the community. They do not engage controversial moral norms, such as when the law criminalises private sexual acts, for example. It is relatively easy for the public to understand their purpose. In that sense, if laws are marked by a critical reflective attitude (even though Hart’s enunciation of the critical reflective attitude is not for this purpose as he would not look at every individual law as such), it is easy to see that a sense of ‘oughtness’ accompanies the Regulations. Second, even though no controversial moral norm is engaged, the liberty of the subject is at stake, given the measures are significantly restrictive. Most in Singapore understand that they are subjects of the law, and would not assert their ‘sovereignty’ the way a woman who made the news did when she refused to wear a mask in public as required by the law.600 However, if contact tracing devices were mandated for everyone, more might object,601 and the extent to which people could tolerate restrictions of their liberty in light of the public good would be more hotly debated. Third, even though there may be widespread belief of the necessity of the laws, people may assess risks to themselves, as well as the risks they pose to others, differently. Given that these laws are not prohibiting acts such as theft or murder, some may not view their violation as deeply immoral. As such, despite an overall belief in their necessity, there may be temptation not to comply if there are no risks of being sanctioned. These laws showcase the need for sanctions. The COVID-19 laws highlight several characteristics that suggest when sanctions are most needed. Compliance with some of the laws involves drastic changes to day-to-day behavior that most take for granted. The acts being restricted are not deeply heinous by any moral code, and hence non-compliance is unlikely to be viewed as deeply immoral, even though it may be seen as anti-social insofar as the laws concern the good of the community and all should play their part. The mainstream news media highlighted some instances of such behavior, where some seemed to prefer to go about their daily activities as per normal. For example, an elderly man repeatedly left his apartment to meet others for a social purpose and repeatedly did not wear a mask.602 Another instance of such violation, which was highlighted on social media and resulted in those involved being charged, concerned expatriates gathering at Robertson Quay to drink.603 If the laws could be violated with carte blanche, there might be a sense of unfairness that some had to pay the price of great 600 Shaffiq Alkhatib, ‘‘Sovereign’ woman accused of failing to wear mask in public faces two additional charges’, (The Straits Times, 19 May 2020) <https://www.straitstimes.com/singapore/courts-crime/sovereign-womanaccused-of-failing-to-wear-mask-in-public-faces-two> accessed 19 June 2020. 601 ‘Singapore Introduces COVID-10 Contact Tracing App’ (Security Magazine, 10 June 2020) <https://www.securitymagazine.com/articles/92573-singapore-introduces-COVID-19-contact-tracing-app-amidprivacy-concerns> accessed 19 June 2020. 602 Lydia Lam ‘Senior citizen charged with repeatedly breaking COVID-19 rules during circuit breaker’ (Channel News Asia, 29 May 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19-ong-king-hwacharged-socialising-with-other-men-12782804> accessed 19 June 2020. 603 ‘Expats who flouted Singapore’s circuit breaker to gather for drinks face US$7,000 fine or jail’ (South China Morning Post, 2 June 2020) <https://www.scmp.com/news/asia/southeast-asia/article/3087230/expats-whoflouted-singapores-circuit-breaker-gather> accessed 19 June 2020.

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inconvenience, while others went about their daily lives. Indeed, when the question was raised by the public as to why some were charged while others were not, the Attorney General’s Chambers responded that the prosecution would take into account a variety of factors, including the severity of the breach and the culpability of the offender. The spokesperson noted: ‘For instance, breaches committed in full view of the public and which deliberately defy the law are considered particularly egregious. Not only do they cause public alarm, they also mock and belittle the efforts of those who abide by the law.’604 Fair play takes on heightened importance. Finally, while Hart emphasised that compliance with laws involved more than external regularity of behavior which we ordinarily refer to as ‘habits’,605 if in fact particular habits are prevalent, they could support the ease with which new norms – social and legal – are endorsed in a society. For example, in countries such as Japan, Taiwan and Hong Kong, donning of face masks were not uncommon. Given the prevalence of the habit, and the possibility of transition from a habit into a social norm in a pandemic, mandating face masks through a legal norm might not be necessary, though it might still be prudent. In Singapore, this was not a common habit. While presumably most would not react to masks the way United States President Donald Trump has made an issue of masks, 606 legally mandating the donning of face masks had to be accompanied by practical education as to how to properly wear masks and civic education as to the benefits of masks.

VI. Interpretation of the law PM Lee, in a televised address to all Singaporeans, had called for all to adhere to the spirit of the regulations in place to support Singapore’s circuit breaker: Stay at home; stop socialising in person with others, even with extended family members who do not live with you. Keep in touch with them but by other means, for example online, on the phone, writing emails or even letters. But do not make physical contact, because that is how the virus is spread. Please comply not just with the letter of the rules, but their spirit.607

604 Lydia Lam, ‘COVID-19 court cases: Why have some people not been charged?’ (Channel News Asia, 7 June 2020) <https://www.channelnewsasia.com/news/singapore/COVID-19-coronavirus-why-some-people-notcharged-court-12811008> accessed 19 June 2020. 605 Hart (n 570) at p 10. 606 Amanda Hess, ‘The Medical Mask Becomes a Protest Symbol’, (The New York Times, 2 June 2020) <https://www.nytimes.com/2020/06/02/arts/virus-mask-trump.html> accessed 19 June 2020; Aaron Blake, ‘Trump’s seeding of a culture war over masks just got a lot less subtle’ (The Washington Post, 26 May 2020) <https://www.washingtonpost.com/politics/2020/05/26/trumps-seeding-culture-war-over-masks-just-got-lotless-subtle/> accessed 19 June 2020. 607 Prime Minister’s Office Singapore, ‘PM Lee Hsien Loong on the COVID-19 situation in Singapore on 10 April 2020’ (10 April 2020) <https://www.pmo.gov.sg/Newsroom/PM-Lee-Hsien-Loong-on-the-COVID-19-situationin-Singapore-on-10-April-2020> accessed 19 June 2020.

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An emphasis on compliance with the spirit of the law entails that subjects focus on obeying the law not only for the sake of avoiding sanctions. After all, sanctions are only imposed if there is official enforcement of the law, and official enforcement depends on the violation being caught, prosecutorial discretion, and so on. Understanding the spirit of the law is relevant not only for officials or judges; the subject of the law ought to take an interest in it. This was reiterated when government ministers announced the start of Phase 2 of reopening, as the Minister of Health Gan Kim Yong noted that people might try to get around the rules and the Minister of National Development Lawrence Wong called for people to observe ‘the spirit of the requirements’.608 Calling for the spirit of the law to be honoured is tantamount to a rejection of American legal realism, which is famous for its adage that law is merely politics. The subject of the law is Holmes’s ‘bad man’ whose concern is when his violation would be met with sanctions,609 and who is not interested to honour the spirit of the law. How is the spirit of the law to be discerned? One can take a leaf from Dworkin’s interpretive technique. His program of interpretation could be understood, in layman’s terms, as a more elaborate method of finding out what the spirit of the law is, and what it requires in a particular instance. His analysis of the construction of the character of an enterprise or institution, put forth as part of his rights thesis,610 provides a pertinent example of how constructive interpretation may be undertaken. He considers the example of a referee in a chess tournament who must declare a game to be forfeited if one player ‘unreasonably’ annoys the other in play. Does one player smiling at another, unnerving him, constitute a violation of the convention that calls for the game to be forfeited? A referee who understands his role in interpretation would not take the convention in isolation from other conventions of the game. He would seek to understand the character of the game of chess and may discern that it is an intellectual game. Understanding it as an intellectual game, he would next discern what constitutes reasonable behavior given that it is an intellectual game. Here he would ask a further set of questions as to whether the ability to intimidate or the ability to resist psychological intimidation are intellectual qualities. If they are, then smiling in a way to intimidate might be par for the course. By understanding an enterprise as having a character of its own, he would be able to enforce a conception (or interpretation) of a particular convention. In doing so, one can fairly speak of the referee not as supplementing the convention, but as enforcing it.611 This may be applied mutatis mutandis to law. In terms of interpreting the law, interpreting a rule in a particular manner would be true to the spirit of the statute, which in the case of the Act is to contain the spread of COVID-19. 608 Toh Wen Li, ‘Coronavirus: Safe distancing measures will still be enforced’ (The Straits Times, 16 June 2020) <https://www.straitstimes.com/singapore/safe-distancing-measures-will-still-be-enforced> accessed 19 June 2020. 609 Oliver Wendell Holmes, ‘The Path of the Law’ (1997) 110 Harv L Rev 991, 993. 610 Ronald Dworkin, Taking Rights Seriously (reprint edn, Bloomsbury Academic 2013) at pp 128-131. 611 ibid p 138.

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It is also possible for there to be a genuine gap in the law, a matter not addressed by the law. This contrasts with the sense in which Dworkin considers conventions as running out in relation to the chess tournament example, when the existing conventions are not incomplete but ‘abstract’, such that competing conceptions have to be chosen.612 Here, I turn to the situation when a particular fact situation is in fact not regulated by the law. While an act not prohibited by the law cannot be prosecuted, a subject of the law true to the spirit of the law may also wish to act in a manner that is consistent with the spirit of the law. An illustration relating to an actual gap in a set of (non-legal) rules arose in the context of teaching Jurisprudence, a university core curriculum elective offered by the School of Law. My course was one of the first courses which was tasked to be taught online from the seventh week of the semester,613 which was well before Singapore’s circuit breaker was triggered. We learnt of this during the fifth week of the semester. I wondered whether to have my customary treat of food for the students in the sixth week, given that the class was unlikely to gather again in the semester. Coincidentally, we were studying Dworkin’s jurisprudence. The rules and guidelines relating to how class was going to be conducted, with some courses going online while other classes continuing in person, understandably did not address the issue of whether food could be served, since eating was not a regular activity in the classroom. There was thus a genuine gap in the rules and guidelines in my case. I asked myself how I could be true to the rules and guidelines. I understood the rules to centre around minimising human traffic in the university premises and to play a part also in minimising human traffic on public transport. The overall objective was to play a part in the containment of COVID-19, perhaps so that more drastic measures would not be needed in the country as a whole. In view of the objective, and the fact that students would be in class in the sixth week without social distancing, the issue I posed myself was whether eating together in class would increase existing risk. There would be an increase in risk if food was served in class insofar as students would interact more by chatting over food and possibly share food. Further, there might be risks associated with food preparation and delivery, though this was not significant in that students were likely to purchase food for their meals, albeit not all from one outlet at the same time. I also engaged in constructive interpretation of the nature of my duty as a member of faculty in the university. Certainly, I could not be just complying with the letter of the rules and guidelines. A factor was the negative publicity that would ensue for the university if students were found to constitute a cluster from eating together in the classroom. As a law faculty teaching jurisprudence, I could hardly be found to plead that there was no rule about food in the classroom, as no administrator tasked with coming up with rules could reasonably be expected to think of regulating the serving of food. I erred on the side of caution. ibid p 129. 613 February 2020. 612

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The caution with respect to eating together in a large group had at that time not been triggered by any event, but by the end of that week during which I would have served food in class if I had not engaged in Dworkinesque interpretation, a large-scale dining event in Singapore had taken place which would become a common point for what was at that time the largest cluster of cases in the country,614 though it was noted that the participants at that dinner had more activities in common than the dinner.615 The alleged ensuing negative response of netizens to the organization of the dinner, interestingly, can be seen as indicating there is some intuitive understanding on the part of the public, of the spirit of the law. There was also expectation of such compliance. The activity had not been prohibited but the public expected the DORSCON616 level in the country, of ‘orange’, to be borne in mind in decisions as to what activity could be done. Presumably, then, when PM Lee spoke of the spirit of the law on 10 April 2020, this was an interpretive canon that could easily be understood and affirmed.

VII. Conclusion: unexceptional jurisprudence for exceptional times The fact that underlying jurisprudential concerns seem to have been respected, broadly speaking, even in the process of urgent legislation and enforcement to deal with a fast-evolving pandemic situation in which governmental authorities are also grappling with emerging knowledge, is heartening. In a country that respects the rule of law and has well-staffed governmental departments with the relevant legal expertise, such respect is also unsurprising. Even if jurisprudential issues are not explicitly addressed, there is general understanding of when to employ statutes and when to leave an area for common law rulemaking. There is general respect in ordinary times of principled consistency in laws and of Fuller’s requirements of the internal morality of law. There is also general appreciation of the roles of sanctions and of official enforcement, and of the support for legal norms offered by social habits, social norms, and lay understanding of public goods. The understanding and habitual practice within lawmaking departments in ordinary times translates easily into legislating for exigent circumstances.

614 Calvin Yang, ‘A dinner where death lurked: Couple who became part of Safra Jurong COVID-19 cluster landed in hospital, and survived’ (The Straits Times, 3 May 2020) <https://www.straitstimes.com/singapore/a-dinnerwhere-death-lurked> accessed 19 June 2020. 615 Audrey Tan, ‘Coronavirus: Patients in Safra Jurong cluster had more than just a dinner in common’ (The Straits Times, 10 March 2020) <https://www.straitstimes.com/singapore/health/patients-in-safra-jurong-cluster-hadmore-than-just-a-dinner-in-common> accessed 19 June 2020. 616 This is the acronym for Disease Outbreak Response System Condition, which is a colour-coded framework that describes a current disease situation (‘What do the different DORSCON levels mean?’, (Gov.sg, 6 February 2020) <https://www.gov.sg/article/what-do-the-different-dorscon-levels-mean> accessed 19 June 2020.

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Perhaps one of the most striking observations in relation to such regulations is how fair play takes on a heightened importance in a scenario where the law demands drastic changes in habits of ordinary life and when the conduct the law prohibits is not perceived as morally egregious. In such a scenario, the temptation to ignore the law is greater in the absence of the threat of sanctions or when one assesses one’s chances of being caught as slim. As such, the lack of official enforcement is more likely to throw the law into disrepute, with the perceived lack of fair play leading other subjects to assert their freedom to engage in the prohibited conduct. The appeal by government ministers for subjects to honour the spirit of the law is also interesting in its acknowledgement of the problem with human nature in wanting to get around rules. At the same time, it also demonstrates that American legal realism is an unwelcome jurisprudential view. In exceptional times, especially, subjects of the law are expected to aspire to be more than Holmes’s ‘bad man’ in order that law can serve its purpose for the community.

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22. Tort liability in a pandemic environment: Exploratory thoughts Low Kee Yang617 Introduction In a matter of months, the emergence and spread of the coronavirus has massively disrupted and radically changed life, causing untold suffering and staggering losses. It will be some time before the pandemic ends and the world returns to normal or, more likely, move to a new normal. Since the beginning of 2020, health authorities and governments worldwide have devoted huge amounts of resources studying the science surrounding the coronavirus – its origin, spread, mutation, symptoms, treatment, containment and the like – and taking regulatory action to manage the crisis. The outbreak of the virus and the attendant governmental measures have resulted in severe disruptions within and across borders. Individuals in society, concerned for personal safety and disincentivized by the prospect of legal sanction, have complied with restrictions and measures such as masking, social distancing and restrictions on movement and on travel. Myriad contractual dealings have been severely affected and lawsuits for breach of contract are mounting. Financial default and insolvency have risen sharply as businesses and entities continue to struggle as they adopt measures and strategies to avoid or reduce liability. There are implications in many realms of the law. This paper focuses on the tort implications. It explores the overarching objectives, obstacles and tensions as tort principles are applied to the chaotic and changing circumstances to scrutinize the conduct of individuals, businesses and public bodies and to ascertain the appropriate balance of liabilities and rights in a time of unprecedented upheaval. The exploration proceeds as follows:

Associate Professor of Law, Singapore Management University. The research assistance of Larry Low Jing Jie is gratefully acknowledged. The writer also benefitted from comments and suggestions from Lai Siang Ping and Nicholas Liu. However, errors and deficiencies are mine alone.

617

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

contextual dynamics,



tort law implications,



issues and challenges in negligence, and



concluding remarks.

Contextual dynamics Mysteries of the virus The starting point of the enquiry must be the context and this backdrop is a very complicated labyrinth of events and responses, and the picture, as it unfolds, is one of uncertainty, volatility and evolution. At the centre of this crisis is the challenge of understanding the epidemiology of the virus, the key aspects of which are the incidence, distribution and control of the disease. The world continues to be inundated by new advisories and revelations from medical experts, research institutions, governmental authorities and the World Health Organization on a wide range of matters, of which the following are typical: 

manner of transmission,



effectiveness of preventive devices,



incubation period and symptoms,



potency of the virus,



effective and accurate testing,



effectiveness of social distancing,



kinds of effective treatment,



herd immunity as an approach,



recurrence of disease, and



development of a vaccine.

The abounding diversity and contradiction of views suggest there is no clear consensus even among the experts on several important scientific aspects, with the accuracy of ascertainment being complicated by the differing factual matrices of the locations where infection occurred. Relevant considerations include the age and health profiles of the infected and the conditions of the living and work habitats. The reality is that many questions relating to the science of the virus remain mysteries for now.

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Governmental action Acting on extant findings and perceptions of the epidemiology of the virus, governments around the globe introduced a spectrum of restrictive measures, ranging from very drastic ones, such as closure of businesses and places of social activity, home confinement and banning air travel, to less severe ones such as safe distancing and the wearing of protective gear. The responsibility of each government is a heavy and difficult one as it seeks to balance competing interests – medical versus commercial, short-term versus long term and society versus the individual. In the balancing of these interests, pragmatism, compromise and sacrifice are involved. The actions of governments have been far from uniform or coordinated.618 This was due largely to differences in many aspects, such as the phase of contagion, profiles of the population, availability and quality of medical facilities, budgetary constraints and, not least of all, the view and conviction of the country’s medical authority on the epidemiology of the virus and, sometimes, the political climate as well. On this last point, it is noted that the positions taken by different countries have quite often been at variance with the view taken by the WHO.619 Like all governments, the Singapore government had the arduous task of finding a delicate balance between social and economic policies. In April 2020, it imposed an almost complete lockdown (called Circuit Breaker) for 8 weeks, closing industries and activities save those considered to be essential, and on the condition that safety measures be taken. Regulations and advisories were issued 620 and constantly revised. Then followed a structured, multi-phase reopening of the economy and resumption of daily activities.

Response of individuals and businesses The experience of living in the pandemic era has largely been about compliance with governmental directives and making adjustments and decisions in respect of social, work and business aspects of life. In personal and social life, suddenly, there have been restrictions to daily living – of movement, of socializing and of health safety. In the realm of work, there have been massive job losses, both permanent and temporary, while those fortunate enough to retain their jobs have to adapt to new requirements of workplace requirements of health safety. Those working from home 618 The discrepancy is accentuated in large countries, such as the US, where state-specific efforts to curb the virus have been extremely different. 619 A notable example of this is Sweden’s herd immunity strategy, which appears to be a failure. 620 The spectrum of advisories includes: a) safe distancing measures which require individuals to maintain a distance of at least 1m from other individuals and for the capacity of premises to be regulated based on the size of the compound, b) precautionary measures for individuals to limit their movement out of their residence to essential activities, c) precautionary measures for businesses to defer travel abroad, provide sanitation and protective equipment and enforce working from home, and d) sustainability measures for businesses such as implementing Business Continuity Plans (e.g. staggered work timings and split-team arrangements).

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have had to adapt and face challenges that may be present in the home environment, such as space constraints and the ability to work in peace and quiet. In the commercial realm, business owners have faced tremendous challenges as they changed their mode of conducting business to comply with regulations, made tough decisions as to deployment of staff, considered the financial implications and gave serious consideration as to how to change, perhaps radically, their business model and, even, whether to end the business venture. There were two key problems for individuals and businesses as they responded to governmental action. The first was that while some directives were mandatory, others were advisory in nature, where expressions such as ‘advised’, ‘encouraged’ and ‘urged’ were used. Similarly, a fair amount of uncertainty was generated where the directive referred to the taking of action that was ‘feasible’ or ‘possible’. In these situations, it was difficult to ascertain what the appropriate response should be. The second problem was that the directives were constantly updated, partly in response to new knowledge as to the epidemiology of the virus. It was a real challenge as individuals and businesses sought to respond to these changes and additions. For everyone, it was, and still is, a time of great disruption and distress.

Tort law implications Compensation philosophies In compensating deserving victims, tort law’s primary philosophy or approach is corrective justice – that the party at fault should compensate the victim. A key challenge here is the ascertainment of fault. The usual difficulty of the task is exacerbated by the continuing uncertainties surrounding both the epidemiology of the virus as well as the considerable pragmatic challenges in complying with and adapting to the changing governmental directives. In addition to corrective justice, distributive justice (along with all the controversy of what this notion entails) may come into play. In some situations, the victim deserves compensation even if the defendant’s fault may be doubtful or less than substantial. Deterrence may also surface and complicate the exercise.

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Underlying realities and challenges Justice and law are always very dependent on context. The context is a pandemic environment – something rare in occurrence in the long march of history. Whilst some countries have had experience with epidemics in recent decades, the last pandemic occurred a century ago. So, apart from what may be gathered from archives and anecdotal accounts, the experience is new to all. As mentioned above, much remains uncertain and unknown in terms of scientific knowledge, and the range and depth of governmental action around the globe has been diverse and varied. As individuals and businesses form their own view of the coronavirus and respond to governmental action and regulation, there is much anxiety and stress. In seeking a fair resolution of disputes in a pandemic environment, an appreciation of the underlying realities is critical.

Tort liability, negligence liability One can expect, over the coming months and years, a deluge of tort claims caused directly or indirectly by the virus, the consequences of governmental action and the responses thereto. Some cases may involve intentional tortious harm, such as in the tort of Wilkinson v Downton,621 or of stricter or strict liability, such as in the tort of breach of statutory duty and the tort of Rylands v Fletcher.622 There may also be a fair amount of defamation litigation arising from the deluge of commentary in relation to the COVID-19 crisis. But, without a doubt, taking centerstage in tort litigation would be the tort of negligence - the complaint that the defendant did not take reasonable care and as a result caused harm to the claimant. Categories of complainants could include students, patients, employees, customers, commuters and participants of events. The losses claimed could involve pecuniary and non-pecuniary losses. This paper focuses on the tort of negligence. Before that, a brief comment should be made on the tort of breach of statutory duty. A prominent feature of governmental action is the passing of specific regulations in terms of health safety measures and of restrictions and curtailments on activities in the social, business and other realms. These new regulations raise the possibility of actions being commenced under the tort action of breach of statutory duty. A claimant would have to surmount the usual obstacle of showing that Parliament intended, in addition to imposing criminal sanctions, to confer a private right of action in tort. This genus of action may be particular relevance to workplace health and safety.

Wilkinson v Downton [1897] 2 QB 57, where the common law first recognized the tort of intentional and indirect infliction of physical or psychiatric harm. 622 Rylands v Fletcher [1868] LR 3 HL 330. The rule in Rylands v Fletcher covers situations of damage to the plaintiff-landowner arising from the escape of dangerous things in the course of the defendant’s non-natural use of land. 621

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Justiciability of governmental action It is conceivable that in some countries, negligence claims may be brought against governmental agencies. Such claims face challenges on several fronts. In the first place, there is general reluctance to impose a duty of care on public bodies on account of various policy concerns. Then, there are principles and concepts favorable to public bodies which the claimant needs to surmount. Thirdly, there is often legislation governing the public body in question which gives immunity or substantive protection to the body; it is conceivable that some countries may introduce legislation specifically to confer immunity during this time. Lastly, a pandemic is a time of great testing and stress. As governmental decision-making takes into account so many competing interests and considerations, and given the variances in governmental approaches and responses around the world (such as on closing and re-opening623 the economy), a court would be slow to conclude that the government or a governmental body had not acted with reasonable care. For all these reasons, the prospect of a successful lawsuit against a public body is dim.

Issues and challenges in negligence Reasonableness of action A claim in negligence is, in essence, an assertion that the defendant did not exercise the care that a reasonable layperson or professional, as the case may be, would have exercised. It is subject to the composite and elaborate framework of principles of the tort, comprising duty, breach, causation and remoteness. The claimant also has to overcome the defences pleaded by the defendant. In this paper, we consider the more salient issues and challenges that may arise.

Duty of care - foreseeability, proximity and policy A foundational element of the duty laid down by Lord Atkin in Donoghue is the foreseeability of harm. 624 The question is whether the tortfeasor could have foreseen that if he did not take reasonable care, the claimant would be harmed as a result. In view of the uncertainties and unknowns surrounding the science of the virus and the changing and at times conflicting governmental directives, the foreseeability question will often not be easily or confidently answered.

In some instances, in spite of a rise in the number of infections. 624 Donoghue v Stevenson [1932] AC 562, the landmark decision where Lord Atkin laid down the principle that a person has to take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons who are so close and directly affected by his act. 623

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The second aspect of the duty of care – proximity – has to be addressed, particularly where the relationship between the claimant and the defendant is an indirect or remote one. However, the matter should not pose especial difficulty. The third element or stage of duty – policy (also called, rather controversially, the ‘just, fair and reasonable’ requirement) – demands close analysis. Many types of policy come into play and their interactions create tensions. Social policy emphasizes health safety while economic policy stresses the importance of economic continuation and sustenance. You could say it is a matter of life versus livelihood. Legal policy also figures prominently as courts ponder over considerations such as floodgates625 and, more broadly, whether in a pandemic environment, certain types or situations of harm or loss are but part of the vicissitudes of living in such unprecedented times. Moral policy and political policy may also enter the discussion. In summary, at the duty of care stage,626 a claim in negligence may face intractable challenges as regards foreseeability and policy.

Standard of care analysis The greatest difficulty, though, is likely to be the ascertainment of the applicable standard of care. In applying the relevant factors to the situation at hand and, in the balancing of these factors, much difficulty is likely to be encountered. Further, central to the task of establishing responsibility and liability on the part of the defendant and right and entitlement to remedy on the part of the claimant is the issue of fault, and this involves the delicate and controversial exercise of tempering objectivity with subjectivity. The characteristics of the defendant - in terms of knowledge, skill, experience and resources – and the particularities of the claimant – in terms of fortitude and sensitivities – need to be adroitly counterbalanced to arrive at a fair and optimal legal position. Additionally, there is a need to guard against the danger of hindsight bias. The defendant should be judged by the state of knowledge at the time of his alleged careless conduct.

Ascertaining risk Risk of harm has two aspects – likelihood of harm and seriousness of possible harm. Of course, the greater the risk, the greater the amount of care that needs to be taken. As regards likelihood, There may be concerns of the courts being deluged with frivolous claims and having its limited legal resources severely strained. 626 Spandeck Engineering (S) Pte Ltd v. Defence Science & Technology Agency [2007] 4 SLR (R) 100 is the leading authority on the framework for establishing the duty of care in Singapore. There, Andrew Phang JA laid down a two-stage test of proximity and policy consideration which is preceded by a threshold requirement of foreseeability. 625

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it is noted that, even now, there is significant ambiguity on epidemiological aspects such as manner of transmission, viral viability (how long the virus stays alive), incubation period, asymptomatic spread as well as effectiveness of different kinds of preventive measures such as protective devices (like masks, shields, gloves and hazmat suits), sanitation procedures and safe distancing practices. As regards seriousness of harm, there is reasonable consensus that for the vulnerable groups, namely the elderly and the physiologically weak (in particular those who have respiratory limitations), death or substantial impairment of bodily function may result. To this must be added the caveat that serious consequences could also occur where infection takes place in the nonvulnerable groups, albeit with a much lower probability; in this regard, one might have to answer the difficult question – who is the foreseeable plaintiff? Gauging the risk of harm in respect of potential victims can be a formidable exercise.

Balancing risk and costs of avoiding the harm In arriving at the appropriate standard, there is an inverse relationship between the standard of care and the costs627 of avoiding the harm; basically, the defendant is expected to adopt routine and inexpensive measures while measures which involve great expense or substantial disruption are not required unless the risk of harm is substantial. The measures in the COVID-19 environment range from temperature screening, sanitation, wearing of protective gear, safe distancing to very drastic action such as suspension or cancellation of activities. For businesses and enterprises, the cumulative requirements of all the due diligence measures can be staggering in terms of financial costs and business practicability. At what cost must preventive action be taken to prevent harm? Relatedly, one faces the thorny question of whether the financial ability of the tortfeasor should be factored into the equation. For a particular scenario, such as one involving a supermarket, an eatery, a hospital or a school, is there a fixed standard of care? Or is it that those with greater financial ability (and knowledge or skill?) are held to a higher standard while those with lesser such ability are accorded the concession of a lower standard? These difficult questions will have to be revisited and in exceptional circumstances.

Economic and social utility Difficulties in the complicated exercise are further compounded when considerations of economic and social utility are brought into the picture. The imposition of extremely burdensome measures A related consideration is practicality. Early in the crises, some hospitals in the US and in the UK directed their doctors and nurses not to wear masks so as not to frighten the patients! 627

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Â may threaten the viability of a business venture and the livelihood of the employees; and prolonged and excessively harsh restrictions on freedom and movement can have deleterious emotional and psychological effect, and trigger conflict, depression and even suicide. Where the utility of an activity outweighs the risks of conducting it, a lower standard of care may be tolerated.

Compliance with regulations and guidelines The balancing of factors in order to ascertain the standard of care takes place against the practical backdrop that a substantial part of the reality are the adjustments made by individuals and businesses in complying with and responding to governmental action. Governmental

directives

may

categorized

into

proscriptions,

prescriptions

and

recommendations, and may be couched in general and/or specific terms. For example, the directive may impose the concept of safe distancing and specify a distance of one meter (or more) or require the wearing of protective face wear and list several alternatives. The manner and extent of compliance with the directives by individuals and entities has implications on liability under the law of negligence. As a starting point, one could say that compliance tends to insulate or protect one from liability whilst non-compliance tends to result in liability. But there are qualifications. For one, the statutory standard may be indicative or suggestive but not determinative of the requisite standard of care; the standard which negligence law requires may be higher than what is common or industry practice. For another, whilst it is necessary to comply with the specificities of the detailed subsidiary legislation, it is also important to adhere to the principle encapsulated in the main statute. Finally, even where the directive takes the form of an advice or recommendation and consequently there is room for the exercise of discretion, it would probably be better to be cautious and to follow the advice wherever possible.

Outsourcing of safety measures Where the safety and other due diligence measures are carried out by employees, the liability of the employer is determined in accordance with the concept of vicarious liability. In recent years, vicarious liability has been extended beyond employees to persons who are akin to employees. The big question is whether vicarious liability can be extended over acts of an independent contractor. So far, there has been judicial reluctance to expand the ambit of vicarious liability to such a degree.

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For now, it appears an employer will not be held liable for an independent contractor’s tort save where the employer had been negligent in the selection of the contractor or where the employer had a non-delegable duty, a concept which has been narrowly circumscribed. The application and implication would be that where the measures are carried out by employees, the employer may rather easily be held liable whereas if the same measures were done by an independent contractor, the employer’s risk of liability is substantially lessened.

Causation and remoteness Readers familiar with this area of law will be aware of how scenarios of indeterminacy, in particular medical indeterminacy, have resulted in controversial legal improvisations. But-for causation, measured on the threshold of balance of probabilities, has at times been substituted by the amorphous concepts of material contribution to injury (MCI),628 and material contribution to risk of injury (MCRI).629 The further complication is that even where these apply, the claimant may yet receive full damages. In disputes set in the pandemic environs, it would not surprise if the ‘but for’ test proves inadequate for ascertaining causation, bearing in mind multiple possible factual causes, such as absence or inadequacy of temperature-taking, masking, sanitizing, or safe distancing, as well as medical uncertainties and unknowns surrounding the science of the virus, such as manner of spread and methods of treatment. One wonders if and when courts would resort to MCI and MCRI to surmount difficulties of these factual or medical indeterminacies and, if so, whether full damages or proportionate damages will be awarded. Further, where the loss of chance argument is raised, courts may have to revisit the simplistic stance that only chances which satisfy the threshold of balance of probabilities may be claimed, a position supportable by neither logic nor common sense. On the associated matter of remoteness, judges may have occasion to debate anew the thin-skull rule. To what extent would the deficiencies in fortitude and resilience of the claimant,630 whether in

628 MCI is used to bridge the evidential gap where it is not possible to establish ‘but for’ causation, such as where there are multiple possible causes. The test considers whether the defendant’s breach materially contributed to the damage to the plaintiff. Essentially, causation is substituted by the lesser concept of contribution. 629 MCRI deals with the even more challenging situation where one does not know how a particular injury, such as an illness or disease (like mesothelioma), develops or occurs: see e.g. Barker v Corus (UK) plc [2006] 2 AC 572. In asserting MCRI, the plaintiff only has to show that the defendant’s breach materially contributed to the risk of the injury which occurred. This is an even lower threshold than MCI. 630 Such as a pre-existing condition that renders him especially susceptible to the virus.

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terms of bodily or mental strength or some other relevant circumstance, be taken into account in deciding that the defendant should be liable in negligence?

Consent, exclusion of liability and contributory negligence No doubt, in virtually every COVID-19-related claim, defences will be raised. We consider briefly the defences of consent, exclusion of liability and contributory negligence. In consent, the principle is that the claimant freely and voluntarily, with full knowledge of the nature and extent of the risk, agreed to incur it. The constituent elements of full knowledge and voluntariness, in a COVID-19 scenario, are not easily fulfilled and the defendant has a heavy burden. Cursory or nominal efforts at giving notice are unlikely to meet the requirements. More attention has to be given to appropriate due diligence measures such as giving clear explanation and ensuring the absence of coercion. Relatedly, the defendant may plead exclusion of liability. Such a plea is subject to the regime of protection afforded by the Unfair Contract Terms Act. In a nutshell, in this regime, liability for death and injury resulting from negligence cannot be excluded while liability for other damage may be excluded only if it is reasonable to do so. Hence, the defendant’s ability to escape liability through exclusion is severely curtailed. In short, the defendant’s conduct will still be tested in the crucible of reasonableness. Finally, contributory negligence – the idea that the claimant had, through his own fault, contributed to the incident/accident or to the loss. In the COVID-19 environment, all and sundry are aware of the dangers of the virus and are exhorted by the authorities to exercise care and to adopt selfprotection measures. It is expected that many a defendant will raise the defence of contributory negligence and the litigants and the court will be engaged in the difficult exercise of ascertaining if, and the extent to which, the claimant had contributed to the loss. So, one is drawn, in each dispute, into detailed debate as to what the claimant, as a reasonable person, knew of the complex epidemiology of the virus and the efficaciousness of the measures taken by the defendant, and what self-protective measures that he, as claimant should have taken. In extreme situations, an argument of novus actus interveniens631 may even be made out, nullifying the negligence claim altogether.

631 Where a subsequent cause interferes with and overwhelms the consequences of the defendant’s negligent act.

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Concluding remarks A pandemic environment is characterized by disruption, chaos, change and uncertainty on a massive scale. The behaviour of individuals and entities is driven and influenced by instincts of panic, anxiety and stress; their reaction and response, at both the public and the private levels, take place against a backdrop of unprecedented dislocation and distress. The balancing of interests, at both levels, is done in very challenging circumstances and requires pragmatism, compromise and sacrifice. Hence, it would be unrealistic and unfair to measure reasonable conduct against yardsticks which obtain in times and circumstances of normalcy. In a dispute, the simple question – did the defendant take reasonable care towards the claimant – leads to an elaborate legal framework where several components are themselves controversial and unsettled. This framework has to be applied to the particular dispute scenario set within the very complicated and complex COVID-19 environment. It would not be surprising, that, on the whole, there may be a lowering of expectations, perhaps substantial, as to the standard of care or that the amount of compensation may be significantly lowered on account of the claimant’s contributory fault. If so, there will be a significant shortfall in compensation and many deserving claimants in tort actions will not receive appropriate redress. It appears that, to fill this gap, state compensation schemes, such as free medical treatment and financial grants, have to be provided. Unprecedented times bring great challenges. As tort law is brought to bear in resolving a multitude of disputes in a wide range of circumstances, one must be prepared to be overwhelmed by the unique unpredictability and complexity involved in producing a just and optimal outcome.

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(G)

Transiting justice and legal service delivery under strain?

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23. Taking dispute resolution online in a pandemic-stricken world: Do we necessarily lose more than we gain? Dorcas Quek Anderson632 Introduction The court process is more important than simply being an administrative adjudication. It’s a very human set of interactions. My role as a judge is absolutely dependent on the humane administration of a very, very complex interactive process.633 In the past decade, the dispute resolution landscape has been steadily transformed by constant experimentation with technology. The potential for technology to decrease the cost of litigation as well as radically re-design the justice system has resulted in the growth of online courts and tribunals such as the Civil Resolution Tribunal in British Columbia. 634 In the mediation field, platforms have been created for the mediator to facilitate negotiations using a range of communication modes. Other more sophisticated tools such as SmartSettle have been developed to assist parties in negotiating a settlement through double blind bidding and game theory. 635 Blockchain-based arbitration services have been offered by platforms including Kleros. 636 The varied efforts to harness technology to change the nature of dispute resolution have resulted in the development of a specific field known as Online Dispute Resolution (ODR).637 Nonetheless, these innovations have been sporadic and of varying intensity across the globe. While cutting-edge decision-making tools have emerged in some countries, there have also been more mundane application of technology in other places, such as using Skype for mediation to bridge physical distances or introducing electronic filing systems in the courts. ODR has generally been a secondary feature within dispute resolution. However, the COVID-19 pandemic has very abruptly compelled the courts and other dispute resolution practitioners to shift face-to-face processes to the online environment on a large scale. Although the change has largely related to using

Assistant Professor of Law, Singapore Management University. I am grateful for the research assistance of Elias Khong Ngai Hum (SMU School of Law). 633 Ryan et al., ‘Remote hearings in the family justice system: a rapid consultation’ (London: Nuffield Family Justice Observatory/The Legal Foundation, 2020) <https://www.judiciary.uk/wpcontent/uploads/2020/05/remote-hearings-rapid-review.pdf> at p 10. 634 Civil Resolution Tribunal <https://civilresolutionbc.ca> accessed 15 July 2020. 635 SmartSettle <https://www.smartsettle.com> accessed 15 July 2020. 636 Sara Hourani, ‘Access to Justice and Blockchain-Based Arbitration’ (Dispute Resolution Magazine, 8 June 2020) at p 20. 637 See generally Dorcas Quek Anderson, ‘The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice’ (2019) 38(1) CJQ 126. 632

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videoconferencing rather than more ODR systems, the widespread and involuntary shift of dispute resolution to the virtual world across the globe has caused considerable disruption. The rapid migration of dispute resolution to the virtual sphere has given the dispute resolution field little time to thoughtfully consider the impact of this shift on the overall delivery of justice. Given that the pandemic may be with us for some time, it is more crucial than ever to reflect on the fundamental principles undergirding the delivery of justice in the courts, in mediation and arbitral tribunals, and to consider how they are impacted by the shift from the physical to the online realm. As evident from the above quotation, this is also an opportune moment to reflect on the intangible but profoundly significant role played by human interaction within dispute resolution. Drawing upon the latest social science and dispute resolution research, this article discusses the gains and losses brought about by taking dispute resolution online. It focuses principally on the courts, and briefly discusses the issues arising in mediation and arbitration.

The physical trappings of justice in the courts The rapid shift to remote justice During many countries’ lockdown periods, the courts were compelled to adjourn pending proceedings, while also determining which types of cases were sufficiently urgent to be heard remotely. A wide range of practices have emerged, many of which have been collated in the Remote Courts website created by Richard Susskind.638 The Singapore courts have relied heavily on the Zoom videoconferencing platform to hear a wide range of matters, including trials on maintenance for family matters, appeals, sentencing for guilty pleas, delivery of the courts’ judgments and court-connected mediations.639 The US courts have utilised both audio and video conferencing technologies such as Skype for Business and Cisco to hear oral arguments, preliminary hearings and misdemeanour sentencing. 640 The US Supreme Court heard oral arguments for the first time in May by telephone, and allowed tens of thousands members of the public to observe through live streaming.

641

The UK judiciary issued practice directions

638 Remote Courts Worldwide <https://remotecourts.org/> accessed 15 July 2020. 639 Chief Justice Sundaresh Menon, ‘Message from the Chief Justice: The Judiciary’s Response to the Extension of the Circuit Breaker Period’ (Supreme Court, Singapore, 24 April 2020) <https://www.supremecourt.gov.sg/docs/default-source/module-document/message-from-chief-justice---thejudiciary's-response-to-extension-of-circuit-breaker-period.pdf> accessed 15 July 2020. 640 Paul Hastings ‘US Court Closings, Restrictions, and Re-Openings Due to COVID-19’ (Paul Hastings LLP, 14 July 2020) <https://www.paulhastings.com/about-us/advice-for-businesses-in-dealing-with-the-expandingcoronavirus-events/u.s.-court-closings-cancellations-and-restrictions-due-to-COVID-19> accessed 15 July 2020; United States Courts, ‘Coronavirus (COVID-19): Response and Recovery’ (2 July 2020) <https://www.uscourts.gov/news/2020/07/02/coronavirus-COVID-19-response-and-recovery> accessed 15 July 2020. 641 Adam Liptak, ‘Supreme Court Hears First Arguments via Phone’ (The New York Times, 4 May 2020) <https://www.nytimes.com/2020/05/04/us/politics/supreme-court-coronavirus-call.html> accessed 15 July 2020.

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empowering courts to direct proceedings to conduct wholly as video or audio proceedings, and directed its courts to make remote hearings public as far as possible through relaying the proceedings to an open court room, live-streaming or allowing a media representative to log into the remote hearing platform.642 Most recently, the Canada Supreme Court heard several civil and criminal appeals via Zoom with simultaneous interpretation, giving the public and media an unspecified number of observer spots in Zoom while also livestreaming the appeals on its website. Jury trials were suspended in many countries. To deal with the backlog of such cases, the Australian states of Victoria and ACT passed legislation to introduce judge-only trials on a shortterm basis, prompting a constitutional challenge. 643 The UK conducted studies for remote jury trials, but very recently announced plans to pass similar legislation to temporarily allow trials without jury.644 On a related note, there have been varying opinions on whether remote trials for civil and family cases could be conducted fairly. The Federal Court of Australia rejected two applications to adjourn civil trials, finding that the Microsoft Teams software allowed the assessment of witness credibility and better focus on witnesses than in the physical setting. The New South Wales Supreme Court took a different view in a trial involving alleged fraud in the transfer of shares, deciding that there would be unfairness if the plaintiffs were not given full opportunity to ventilate their issues in the conventional way.645 The overall sentiments on the shift to remote justice have been equally diverse. Studies in the UK reflect divergent views across different types of proceedings. 71.5% of respondents surveyed by the Civil Justice Council had a positive experience with remote hearings, whereas the response to a consultation on family justice was more equivocal, reflecting grave concerns about the difficulties caused by lack of face-to-face interaction.646 By contrast, Singapore lawyers who participated in judge-led mediation in the Family Court via Zoom gave positive feedback, noting that the distance between parties made for a less hostile environment.647 Judiciary of England and Wales, ‘Civil Justice in England and Wales: Protocol Regarding Remote Hearings’ (26 March 2020) <https://www.judiciary.uk/wp-content/uploads/2020/03/Remotehearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1.pdf> accessed 15 July 2020. 643 Felicity Gerry QC, ‘Jury is out: why shifting to judge-alone trials is a flawed approach to criminal justice’ (The Conversation, 5 May 2020) <https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-aflawed-approach-to-criminal-justice-137397> accessed 15 July 2020. 644 John Hyde, ‘Legislation to abolish some jury trials could be passed within weeks’ (The Law Society Gazette, 24 June 2020) <https://www.lawgazette.co.uk/news/legislation-to-abolish-some-jury-trials-could-be-passedwithin-weeks/5104739.article> accessed 15 July 2020. 645 Michael Legg and Anthony Song, ‘The courts and the pandemic: the role and limits of technology’ (Law Society Journal, 1 May 2020) <https://lsj.com.au/articles/the-courts-and-the-pandemic-the-role-and-limits-oftechnology> accessed 15 July 2020, referring to the Federal Court cases of Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J) and ASIC v GetSwift Limited [2020] FCA 504, and the New South Wales case of David Quince v Annabelle Quince [2020] NSWSC 326. 646 Civil Justice Council, The Impact of COVID-19 Measures on the Civil Justice System (May 2020) paras 1.19, 5.1 and 5.64. 647 KC Vijayan, ‘Family Court Cases via Zoom the New Normal’ (The Straits Times, 29 June 2020) <https://www.straitstimes.com/singapore/family-court-cases-via-zoom-the-new-normal> accessed 15 July 2020. 642

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There are now fears that remote justice will be here for much longer than expected because of the lingering pandemic. Some commentators deem this a positive development that is long overdue in some courts, while others have bemoaned the loss of important values through a more impersonal way of delivering justice. To make an accurate and sound assessment, it is first necessary to explore the core aspects of delivering justice that are connected with the court’s physical setting.

Is it essential for a court to be a place? Long before the current pandemic, the increasing use of video facilities and technology in the courtroom prompted academic discussion on the role played by the physical courtroom. The UK Civil Justice Council, when considering the future development of ODR, asked the pertinent question of whether the court was a service or a place. Many ODR proponents favoured the former, arguing that technology helps to refine and expand the courts’ functions. Others emphasised the important role of place in the administration of justice, turning to legal anthropology to explore the impact of the spatial aspects of the courtroom. Their research have underscored important insights on the role played by the courtroom space in the delivery of justice. One fascinating aspect of the courtroom space is its symbolic and ceremonial function. Scholars have highlighted how the setting creates a formal atmosphere, marking the courtroom as ‘out-ofthe-everyday’, thus conveying a sense of gravitas and seriousness to the proceedings.648 The courtroom space ‘shapes understandings of the legitimacy and purposes of law’ and therefore generates disciplinary power. 649 This atmosphere, coupled with the spatial distance between courtroom participants, helps underscore the legal rituals and encourage participants to conform to the norms of these rituals with appropriate behaviour.650 It has been argued that the use of videoconferencing results in participants missing these displays of justice and behavioural cues. Remote hearings may then ‘alter the representation of the judge as the embodiment of law, 648 Emma Rowden, ‘Distributed Courts and Legitimacy: What do we Lose When we Lose the Courthouse?’ (2018) 14(2) Law, Culture and the Humanities at pp 263, 265; Joseph Jaconelli, Open Justice: A Critique of the Public Trial (OUP, 2002) at p 11; Linda Mulcahy, Legal Architecture: Justice, Due Process, and the Place of Law (London: Routledge, 2011) at p 17; P Branco, ‘Courthouses as Spaces of Recognition, Functionality and Access to Law and Justice: A Portuguese Reflection’ (2016) 6(3) Onati Socio-Legal Series <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2812699>; R Mohr, R. & F Contini, ‘Reassembling the legal: “The wonders of modern science” in court-related proceedings’ (2011) 20(4) Griffith Law Review 994. 649 A Jeffrey, ‘Legal geography II: Bodies and law’ (2019) Progress in Human Geography 1, at p 7; Hynes et al., ‘In Defence of the Hearing? Emerging Geographies of Publicness, Materiality, Access and Communication in Court Hearings’ (2020) Geography Compass 1 <https://onlinelibrary.wiley.com/doi/pdf/10.1111/gec3.12499>, at pp 4-5. 650 Rowden (n 648) at p 274; Dorcas Quek Anderson, ‘Court-Annexed Mediations within Singapore: A Complex Interface Between Individual Place and the Court Environment’ in Pauline Collins, Victor Igreja and Patrick Alan Danaher (eds), Conflict, Place and Communication, at pp 275 – 293 (Palgrave Macmillan: 2019).

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weakening the symbolic and cultural dimensions and undermining the gravity and decorum of court proceedings’.651 There are a few ramifications arising from a dilution of the ‘place’ of the court. The most evident consequence is the loss of the court’s coercive authority and formality, which could result in diminution of respect shown by the litigants. However, informality per se need not constitute a negative consequence, as it has been pointed out that less formality may make litigants feel less intimidated and more able to exercise their ‘voice’, which is an integral element of procedural justice.652 The more damaging impact relates to the dignity element of procedural justice. The loss of the symbolic significance of the courtroom may cause participants to feel that their concerns are not being treated seriously, and that they are not being respected.653 This sense of displacement could potentially result in disengagement, which could in turn have a negative impact on the substantive outcome. This is a particularly grave concern for vulnerable litigants. Two studies on remote immigration detention hearings in the US found that the litigants did not take full advantage of procedural safeguards because they perceived the process to be less legitimate.654 A more recent study in the UK found that defendants appearing in court via video were less likely to be legally represented, despite the availability of free legal advice. 655 In sum, the loss of the ceremonial and larger-than-life aspects of the court should not be easily disregarded; what is lost from the ‘place’ potentially has a detrimental impact on the court’s functions. One recent remote hearing in the UK Court of Protection illustrates the feelings of alienation that can be experienced by the court user who is unable to grasp the gravitas of the court proceedings. This was a hearing to decide on the appropriate medical treatment for the litigant’s father. A volunteer providing support to the litigant made a poignant observation that the gravitas of the courtroom hearing provides ‘reassuring evidence of the seriousness attached to the case and the Wallace et al., ‘Judicial engagement and AV links: judicial perceptions from Australian courts’ (2018) 26(1) International Journal of the Legal Profession 51, 55; Rowden (n 648) at pp 272-273. 652 See generally Nancy Welsh, ‘Perceptions of Fairness in Negotiation’ (2003-2004) 87 Marq L Rev 753; Nancy Welsh, ‘Making Deals in Court-Connected Mediation: What's Justice Got to Do with It?’ (2001) 79 Wash U L Q 787, at pp 817-838; Tom R Tyler, ‘Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform’, (1997) 45 J Am J Comp L 871; Steven J Schulhofer, Tom R Tyler and Aziz Z Huq, ‘American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative’ (2011) 101 J Crim L & Criminology 335; Rebecca Hollander-Blumoff & Tom R Tyler, ‘Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential’ (2008) 33 Law & Soc Inquiry 473; Allan Lind, Tom R Tyler & Yuen J Huo, ‘Procedural Context & Culture: Variation in the Antecedents of Procedural Justice Judgments’ (1997) 73 J Personality & Soc Psychol 767. 653 Ryan et al. (n 633) at p 10; Rowden (n 648) at p 275. 654 N Byrom, ‘What we know about the impact of remote hearings on access to justice: a rapid evidence review’ (Briefing paper, London, Nuffield Family Justice Observatory/The Legal Education Foundation, 2020) 2; IV Eagly, ‘Remote adjudication in immigration’ (2015) 109(4) Northwestern University Law Review 2015; D Thorley and J Mitts, ‘Trial by Skype: a causality-oriented replication exploring the use of remote video adjudication in immigration removal proceedings’ (2019) 59 International Review of Law and Economics 82 655 N Fielding et al, Video enabled justice evaluation (Sussex Police and Crime Commissioner and University of Surrey, May 2020), referred to in Ryan et al. (n 633) at p 2. 651

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ceremonial impartiality of justice’, which is what the family members need because the question of whether the loved one should receive life-sustaining medical treatment is often discussed in more informal settings without the family feeling that they have been heard. The litigant felt that the casual atmosphere and attire, the distracting pets and the domestic backdrops detracted from the formal ‘theatrical’ elements of the courtroom, thus undermining the seriousness of the issue being considered. The litigant was also uncomfortable by the informal conversations between bench and bar before the start of proceedings, which was fully heard by her. It made her feel excluded as an outsider. The volunteer further commented that this display of levity threatened the formal justice process, diminished the legitimacy of the court and could work to undermine the impartiality of the process by showing how friendly the professionals were with each other and making the rest feel like not ‘one of them’.656 Notwithstanding the significance of place, it is important to have a contextual understanding of its potential impact. Commentators have cautioned against being nostalgic about the physical courtroom, and failing to see how it too may not have fulfilled the functions it is meant to symbolise. 657 In addition, whether there is a loss ultimately depends on the type of court proceedings. There needs to be a considered understanding of the types of cases in which the coercive power and gravitas of the court have to be prominent. While it may be important for certain serious criminal offences or family matters, it may not be as crucial in other kinds of proceedings. Furthermore, once the courts are more cognisant of the loss of the court’s symbolic functions, it could design the remote court process to emphasise the legitimacy and formality of the court process. Some courts have devised ways of conveying a sense of gravitas, including having an appropriate courtroom virtual background for the judge and maintaining the opening ritual to signal that the court is in session. As evident from the case described above, the courts also need to be mindful of maintaining formality by minimising domestic disruptions and refraining from broadcasting informal conversations between the bench and bar. Hence, the loss of a physical place could be replaced by creative ways of conveying a formal atmosphere and distinguishing the proceedings from mundane videoconferencing conversations. However, these gains may be reaped only if there is first an acknowledgement of the significance played by the courtroom space.

Celia Kitzinger, ‘Remote Justice: A Family Perspective’ (The Transparency Project, 29 March 2020) <http://www.transparencyproject.org.uk/remote-justice-a-family-perspective> accessed 15 July 2020 657 Pat Carlen, Magistrates’ Justice (London: Martin Robertson & Co. Ltd, 1976); Mulcahy (n 648); Rowden (n 648) at p 272. 656

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Is human interaction an indispensable part of delivering justice?

The impact of media richness on mutual understanding Another intangible yet significant aspect of the physical courtroom is face-to-face interaction. Human interaction plays an integral role in conferring dignity and respect on all participants, as well as facilitating mutual understanding. Several theories have been advanced to explain how human engagement is disrupted in non-face-to-face settings. One helpful concept is media richness, which refers to the degree to which a communication channel can convey information that can change understanding within a limited time period. 658 Compared to the face-to-face setting, the video-conferencing medium is considered a less rich medium as it allows less immediate feedback, has limited visual and audio channels (only ‘talking heads’), and is unable to convey non-verbal cues. The time lag in video-conferencing – even if only in milliseconds – results in less synchrony in the communicated messages. 659 This delay disrupts the usual habits of speech, resulting in frequent interruptions and uncertainty as to when to speak. 660 Some researchers have also suggested that the differences in reciprocity and feedback results in reduced spontaneity and interactivity. 661 In sum, while video-conferencing seems to most closely approximate a face-to-face conversation, it may still compromise mutual understanding and human engagement. The situation is further exacerbated if there are technological difficulties such as a slow internet connection, or if a less rich medium such as audio communication is utilised. Procedural justice is often achieved in the courts through giving participants an opportunity to exercise their voice, and the sense that they have been understood and listened to.662 These elements of procedural justice are potentially jeopardised by communication media that disrupt the achievement of mutual understanding. In this regard, there have been empirical studies suggesting that defendants who are not physically present during sentencing may not fully understand the consequences of their penalty.663 Because of this risk, several Australian judges commented that sentencing by audio-visual channels detracts from the ability to achieve the necessary level of RL Daft and RH Lengel, ‘Information richness: a new approach to managerial behaviour and organization design’ (1984) 6 Res Organ Behav 191; RL Daft and RH Lengel, ‘Organization information requirements, media richness, and structural design’ (1986) 32 Manag Sci 554; Noam Ebner, ‘Negotiation via Videoconferencing’ in Honeyman & Schneider (eds) The Negotiator's Desk Reference (DRI Press, 2018), 154 659 SG Straus, JA Miles and LL Levesque ‘The Effects Of Videoconference, Telephone, and Face-to-Face Media on Interviewer and Applicant Judgments in Employment Interviews’ (2001) 27(3) Journal of Management 363; Mark Federman, ‘On the Media Effects of Immigration and Refugee Board Hearings via Videoconference’ (2006) 19(4) Journal of Refugee Studies 431, at p 439 660 Johnson, ‘Why Zoom meetings are so dissatisfying’ (The Economist, 16 May 2020) <https://www.economist.com/books-and-arts/2020/05/16/why-zoom-meetings-are-so-dissatisfying> accessed 15 July 2020 661 A Sellen, ‘Remote Conversations: The Effects of Mediating Talk with Technology’ 10 Human Computer Interaction 401, at pp 439-440; Federman (n 659) at p 441 662 Tyler (n 652) 663 Wallace et al. (n 651) at p 57 658

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engagement and assurance of the defendant’s understanding of the sentence, and generally agreed that remote sentencing should be done only for less serious offences.664 In addition, a recent study of UK civil cases described how some lawyers felt that their clients were not properly understanding or being engaged with the court process, and faced significant stress while dealing with frequent interruptions during the remote hearings.665 The lack of understanding is likely to be more severe for vulnerable litigants, who may have poorer technological equipment or internet connection. In the criminal justice context, the consequences of litigants’ lack of understanding may be accentuated by their difficulty in privately communicating with their lawyers during the court hearing, particularly if no breaks were given for their lawyers to take instructions.666

Social presence and dignity Other theories concerning communication media have focused on the impact of the mode of communication on the building of relationships, rapport and trust. The term ‘social presence’ has been coined to describe how certain modes of communication result in one feeling that the other person is less proximate and tangible, leading to greater psychological distance and weaker interpersonal bonds, as well as less transmission of social emotion and rapport.667 Studies have consistently shown that trust formation and accurately assessing the other party’s emotions are more challenging in other channels compared to face-to-face settings.668 The lower degree of social presence in remote courts is potentially damaging to the sense of dignity that is essential to procedural justice and public confidence in the courts. A recent consultation study in the UK family courts reflected many sentiments related to such loss. Respondents noted the difficulty in conducting hearings with the level of empathy and humanity that they thought was an essential element of family justice. Judges remarked that they found the remote hearings 664 ibid. 665 Civil Justice Council (n 646) at p 67 666 Ryan et al. (n 633) at p 11; M Terry, S Johnson and P Thompson, Virtual court pilot: outcome evaluation (Ministry of Justice Research Series 21/10, 2010); N Byrom (n 654) at p 3. 667 JA Short, ‘Effects of medium of communication on experimental negotiation’ (1974) 27(3) Hum Relat 225; M Citera, R Beauregard and T Mitsuya, ‘An experimental study of credibility in e-negotiations’ (2005) 22(2) Psychol Mark 163; AF Stuhlmacher and M Citera, ‘Hostile behaviour and profit in virtual negotiation: a metaanalysis’ (2005) 20 J Bus Psychol 69; R Spears and M Lea, ‘Panacea or panopticon? The Hidden power in computer-mediated communication’ (1994) 21(4) Commun Res 427; L Sproull L and S Kiesler, ‘Reducing social context cues: electronic mail in organizational communication’ (1986) 32(11) Manag Sci 1492; I Geiger, ‘From Letter to Twitter: A Systematic Review of Communication Media in Negotiation’ (2020) 29(2) Group Decision and Negotiation 207, at p 218 668 I Geiger (n 667) at p 239, referring to Citera et al (n 667); SC Lu, DR Kong, DL Ferrin and KT Dirks, ‘What are the determinants of interpersonal trust in dyadic negotiations? Meta-analytic evidence and implications for future research (2017) 7 J Trust Res 22; V Arunachalam and WN Dilla, ‘Judgment accuracy and outcomes in negotiation: a causal modelling analysis of decision-aiding effects’ (1995) 61(3) Organ Behav Hum Dec Process 289; GA Giordano, JS Stoner, RL Brouer and JF George, ‘The influences of deception and computer-mediation on dyadic negotiations’ (2007) 12(2) J Computer Mediat Commun 362; C Laubert and J Parlamis, ‘Are you angry (happy, sad) or aren’t you? Emotion detection difficulty in email negotiation’ (2019) 28(3) Group Decis Negot 377

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impersonal and transactional, as they had no opportunity to look at the parties in the eye and convey to them the judges’ own humanity. 669 In the same vein, a study of Australian courts highlighted the de-humanising impact of using audio-visual channels in court. Some judges stressed the importance of judicial performance as a human process, and how the participants need to feel understood by those questioning them and to be able to directly communicate with those questioning or accusing them.670 Another Australian study interviewing judges and other participants using video link arrangements described the recurring themes of a sense of loss and dehumanisation. The respondents experienced the loss of full sensory engagement, and felt that video links made depersonalisation more intractable.671 These studies underscore how the social and sensory aspects of the court process are inextricably linked to the advancement of the interpersonal aspect of procedural justice. They also indicate the importance of considering the crucial role played by social presence and human engagement in certain proceedings such as criminal and family matters. A failure to acknowledge these losses and actively find ways to ameliorate them in the remote court setting could lead to alienation of court users and more seriously, a drastic loss of confidence in the courts. Although the difficulty in forming human connections may seem to be a loss for the courts, this is an opportune moment for the courts to develop new ways to display empathy and form connections in the virtual world. Knowing that the video-conferencing platform transmits very limited non-verbal cues, it is crucial to recognise the added importance of using one’s words and voice more effectively to communicate meaning and emotion. Additionally, it is more critical to regularly ask questions to check on whether the other participants are being actively engaged and to confirm understanding. Furthermore, it has been pointed out that video-conferencing software gives us the advantage of observing facial expressions more closely and with greater amplification than the court can in the physical courtroom, when the litigant is probably seated far from the bench. This gives the court the opportunity to pay closer attention to these visual cues so as to be more attuned to other participants’ state of mind. Gaining greater awareness of these cues will in turn enable the court to speak the most appropriate words. As such, the widespread use of new modes of communication offers an excellent opportunity to the courts to be more familiar with the latest communication research, and to adjust one’s habitual communication practices to fit the new context.

Ryan et al. (n 633) at pp 10-11 670 Wallace et al. (n 651) at pp 56-57 671 Rowden (n 648) at p 274. See also John Geddie, ‘Man sentenced to death in Singapore on Zoom call’ (Reuters, 20 May 2020) <https://www.reuters.com/article/us-singapore-crime/man-sentenced-to-death-in-singapore-viazoom-call-idUSKBN22W0I6> (despite the accused’s counsel not objecting to the remote delivery of the sentence and stating that the judge could be heard clearly, external observers expressed reservations about the appropriateness of using Zoom to pronounce capital punishment. While the human rights organisations’ objections relate principally with disagreeing with death penalty, their reaction probably underscores the general sense of dehumanization during remote hearings) accessed 15 July 2020. 669

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Assessment of witness demeanour and credibility The media richness and social presence theories pose another conundrum to courts during the current pandemic – the difficulty in conducting trials with witnesses. Some empirical evidence on the impact of remote hearings on accurate assessment of witness credibility suggests that child witnesses in criminal trial are perceived as less believable when providing testimony over video link, due to the inability to fully see their demeanour and the distance created between judge or juror and witness that makes it less likely to elicit sympathy.672 There are difficulties in simulating eye contact as it requires the person to intentionally speak into the camera. Cultural norms regarding body language and trustworthiness may be disrupted. 673 However, not all studies concur. One UK study examining the impact of video-recorded evidence on mock jury deliberation in rape trials concluded that there was no consistent impact of using video, suggesting that some of the concerns may be overstated.674 Another study examining the use of video for processing bail observed little difference in the defendants’ demeanour in video and non-video conditions.675 Anecdotally, one layperson participating in a mock jury trial through a virtual public gallery found no difficulty in observing the witness’s full body language and assessing their veracity through the sound of their voice and consistency of what they said, noting that video communication is increasingly a part of everyday life.676 Despite the conflicting views on whether video-conferencing has an adverse impact on assessing credibility, many courts have suspended jury trials out of an abundance of caution, or temporarily converted them to judge-only trials. There are evidently many issues to consider in ensuring that remote witness testimony is done properly. Some recommended best practices include ensuring that the onscreen size of the witness’s image is life-size; ensuring good audibility and internet connection; briefing the witness on appropriate dressing, having an appropriate and neutral backgrounds, minimising intrusions or disruptions and orientating the witness to the court; and N Byrom (n 654) at p 4, referring to Goodman, G. S. et al., ‘Face-to-face confrontation: effects of closedcircuit technology on children's eyewitness testimony and jurors' decisions’ (1998) 22(2) Law and Human Behaviour, 165–203; Lindsay, R.C., Ross, D.F., Lea, J.A., and Carr, C. ‘What’s fair when a child testifies?’ (1995) 25(10) Journal of Applied Social Psychology 870- 888; O’Grady, C. Child witnesses and jury trials: an evaluation of the use of closed circuit technology and removable screens in Western Australia. (Perth: Western Australia Ministry of Justice 1996). See also Council of HM Circuit Judges, Convicting Rapists and Protecting Victims: A Consultation Response of the Council of Her Majesty’s Circuit Judges (London, UK: Council of HM Circuit Judges, 2006); Hamlyn B, Phelps A, Turtle J and Sattar G, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses’ (HORS 283, London, UK: Home Office 2004); S Payne, Rape: The Victim Experience Review (London, UK: Home Office, 2009). 673 Rowden et al., Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings (University of Western Sydney; Sydney, 2013) 9; Hynes et al. (n 649) 7; Federman (n 659). 674 L Ellison and VE Muno, ‘A “Special” Delivery? Exploring the Impact of Screens, Live-Links and VideoRecorded Evidence on Mock Juror Deliberation in Rape Trials’ (2014) 23(1) Social & Legal Studies 2 675 N Fielding et al. (n 655) at p 72. 676 M Paul, ‘Is Criminal Justice Under Lockdown Remotely Possible’ (The Transparency Project, 11 May 2020) <http://www.transparencyproject.org.uk/is-criminal-justice-under-lockdown-remotely-possible> accessed 15 July 2020. 672

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providing capacity in the video-conferencing platform for self-views as well as turning off self-views where it is distracting to the witness.677 In addition, the nature of trial advocacy has certainly been altered, with perhaps less dramatic opportunity to confront the witness with more exaggerated body language and eye contact, or handing the witness the vital exhibit for his or her comments.678 There may well be novel ways of achieving the same effect in the online environment. As such, while technology makes the remote examining of witnesses possible, there is an urgent need to develop best practices, protocols when the technology fails, and more significantly, a modified framework for assessing witness credibility.

The public face of justice Unlike private dispute resolution processes, justice administered by the courts is situated within the community. Publicity is thus a distinctive characteristic of the court process. In many common law countries, the principle of open justice has been highlighted as the most fundamental quality of the courts. As Lord Atkinson stated, the public trial offers the ‘best security for the pure, impartial and efficient administration of justice [and] the best means for winning it public confidence and respect’.679 Scholars such as Resnik have further elaborated on how the public dimensions of the courts are integral to democracies as they encourage accountability and transparency, and confer an egalitarian aspect to the justice process by subjecting both thee-court and litigants to scrutiny.680 One illustration of the importance of publicity is the general practice of delivering a criminal sentence in open court with the public’s ability to witness it. Open justice in these circumstances facilitates the public declaration of society’s reaction to the offence and offender, and serves to galvanise collective consciousness and affirmation of social norms.681 The COVID-19 pandemic has posed no small challenge to the courts’ efforts to maintain open justice, while also giving due regard to safety and security concerns. Differing views and practices have emerged as to the degree of publicity allowed for remote hearings, and the appropriate technological tools to facilitate public viewing. In the UK, the Supreme Court had, before the pandemic, livestreamed its hearings. It adjusted to the pandemic by livestreaming the videoconferencing hearings. However, there was more uncertainty in relation to the lower courts’ practices. In its protocol on remote hearings, the UK judiciary emphasised that remote hearings Rowden et al. (n 673) at p 59. 678 M Paul (n 676). 679 Scott v Scott [1913] AC 417, 463. Former Chief Justice Spigelman explained in John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 that ‘the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public ... is an essential quality of an Australian court of justice’. Only limited exceptions exist. 680 J Resnik, ‘Uncovering, Disclosing, and Discovering how the Public Dimensions of Court-Based Processes are at Risk’ (2006) 81(2) Chi-Kent L Rev 521, 530 681 Wallace et al. (n 651) at p 55, referring to D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP 2001). 677

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should as far as possible remain public hearings. At the same time, the courts were empowered to direct that the hearing take place in public where it is not practicable to arrange for livestreaming. Following the issuance of these guidelines, a group of UK non-governmental organisations and journalists wrote an open letter to highlight inconsistent practices across courts on when the public and journalists could observe remote hearings, and urged the judiciary to provide observer access, not only media access.682 While the Ministry of Justice also indicated that all members of the public should have access to the remote hearings, some judges disagreed due to the danger of disruption and unauthorised recordings. As a sign of compromise, the Chief Justice stated that members of the public who wished to observe could make a request to the courts. In the US, the federal courts are permitted to give public and media access to electronic civil proceedings and certain criminal proceedings conducted by phone or video-conferencing. 683 Public access has generally been given through toll-free telephone lines.684 Varying practices exist in the US state courts, ranging from allowing the public to request for access to the videoconferencing platform, to allowing access to the audio hearings through telephone. 685 In the Supreme Court of Singapore, hearings conducted using Zoom are streamed on courtroom screens for up to ten members of the public to observe in person. On the other end of the spectrum, the Canadian Supreme Court allowed access to appeals conducted via Zoom, in addition to providing livestreaming of the proceedings. Similarly, the Australian courts have been cognisant of the significance of open justice.686 The Federal Court considered livestreaming its proceedings on YouTube and several courts’ protocols stressed that their arrangements would permit members of the public and media to attend remote hearings.687 The New South Wales Chief Justice added that if such access cannot occur, it might be a powerful consideration weighing against proceeding with the remote hearing.688

682 ‘Open letter from NGOs and academics on open justice in the COVID-19 emergency’ (The Justice Gap, 29 May 2020) <https://www.thejusticegap.com/we-need-to-protect-open-justice-during-the-COVID-19emergency/> accessed 15 July 2020. 683 ‘Judiciary Provides Public, Media Access to Electronic Court Proceedings’ (United States Courts, 3 April 2020) <https://www.uscourts.gov/news/2020/04/03/judiciary-provides-public-media-access-electronic-courtproceedings> accessed 15 July 2020. 684 See e.g. ‘Public Access for Arguments’ (United States Court of Appeals for the Federal Circuit) <http://www.cafc.uscourts.gov/public-access-arguments> accessed 15 July 2020 685 Request for Courtroom Seating / Remote Access (United States District Court District of Massachusetts) <https://public.mad.uscourts.gov/seating-signup.html>; Public and Media Access to Court Proceedings During COVID-19 Emergency (United States District Court, District of Columbia) <https://www.dcd.uscourts.gov/public-and-media-access-to-court-proceedings-during-COVID-19-emergency> accessed 15 July 2020; Paul Hastings (n 640). 686 ‘Frequently Asked Questions on Supreme Court Operations in the Immediate Post “Circuit Breaker” Period (from 2 June 2020)’ (Supreme Court Singapore) <https://www.supremecourt.gov.sg/quick-links/visitors/COVID19/frequently-asked-questions-on-supreme-court-operations-in-the-immediate-post-circuit-breaker-period(from-2-june-2020)> accessed 15 July 2020. 687 Jennifer Robinson and Matthew Lewis, ‘Open Justice in Australia: A Silver Lining to the COVID-19 Cloud?’ (Doughty Street Chambers, 29 May 2020) <https://insights.doughtystreet.co.uk/post/102g8dq/open-justice-inaustralia-a-silver-lining-to-the-COVID-19-cloud> accessed 15 July 2020. 688 Legg and Song (n 645).

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The prominence of open justice, and the ambit of its limitations, will vary across jurisdictions and will invariably have to be adjusted according to the relative severity of the unfolding pandemic. Concerns about potential security breaches, disruptions and unauthorised recordings have to be given due weight, but also balanced against the fundamental need to maintain public confidence through giving open access to hearings whenever feasible. The emerging consensus seems to favour livestreaming of proceedings over giving external parties access to the remote hearing platform. The increased use of livestreaming may have a positive impact, as courts that did not use such facilities prior to the pandemic may start doing so and continue to do so even when the crisis has abated. Nonetheless, the effectiveness of livestreaming is also limited by the available technology and the courts’ familiarity with the relevant platforms. For instance, there were multiple technical glitches plaguing the New South Wales court’s attempt to livestream a criminal trial on YouTube, necessitating an adjournment of a few months. One journalist commented that all the parties and their legal teams were logging in from different locations and computers, the internet connection was frequently interrupted and the sound did not work. Hence, while technological tools are good enablers of open justice, they require considerable adjustment and refinement of infrastructure to positively portray the public face of the court. The awareness of these limitations is helpful for the courts to work towards modernising and refreshing their technological infrastructure to keep abreast of the society’s preferences and practices, thus ensuring that the public and communal aspect of the delivery of justice is preserved.

Mediating and arbitrating at a distance While most of the current academic discourse during the pandemic has focused on the impact of justice within the courts, there have also been significant implications on out-of-court processes. This section briefly examines the salient developments in the mediation and arbitration fields.

The shift towards out-of-court processes The most significant trend in the past months has been the dramatic shift within the dispute resolution ecosystem from adjudication to mediation and arbitration. Processes such as mediation used to be regarded as ‘alternatives’ to the mainstream process of litigation, despite concerted efforts by judiciaries to encourage private settlements. However, the huge backlog in courts caused by adjournments has created an unprecedented demand by both the courts and litigants to use more speedy processes. The backlog in the UK courts amounting to more than half a million cases could result in delays of up to six months and spending of around 220 million pounds.689 Mediators 689 M Fouzder, ‘220m pounds needed to clear Covid-10 court backlog’ (The Law Society Gazette, 29 April 2020) <https://www.lawgazette.co.uk/news/220m-needed-to-clear-COVID-19-court-backlog/5104063.article>; L Dearden, ‘Court backlog rockets to more than half a million cases in England and Wales during coronavirus’

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across the world have thus been more busy than before. 690 Judges have also more actively prompted litigants to try these processes in a bid to alleviate the limited court resources.691 Special arbitration and mediation schemes with subsidised rates have been created by dispute resolution bodies in efforts to ease the court’s burden.692 Even the pace of settlements via mediation has been accelerated amidst the uncertainty over when the courts would re-open; a class action involving Bayer AG and around 100,000 litigants did not settle at during mediation in 2019, but eventually reached a settlement because, as the mediator noted, they were in the middle of a pandemic with no trials being scheduled.693 There are several ramifications of this shift within the dispute resolution ecosystem. First and foremost, it appears that out-of-court processes may increasingly be the preferred mode of resolving disputes, which may result in mediation and arbitration being regarded as primary instead of secondary modes of dispute resolution. It remains to be seen whether this will be a permanent change, or merely a transient one that will dissipate with the resumption of more face-to-face court activity. Secondly, while greater interest in processes outside the court is a positive development, it becomes correspondingly more vital to understand the limitations and benefits of these processes. In a pre-pandemic world, when litigants could choose from a suite of processes, there were guidelines and considerations to help ‘fit the forum to the fuss’ and opt for the most appropriate dispute resolution processes. The ability of lawyers to discern when mediation and arbitration are inappropriate for their clients’ disputes – despite their client’s strong desire to settle a matter – is all the more crucial in these days. These could include situations in which public scrutiny and accountability are essential (such as criminal matters, or accusations of fraud), or where there are severe power imbalances between the parties (such as one party lacking legal representation and being unable to make an informed choice during mediation). More acute awareness of these matters could also ensure that suitable measures could be taken within (Independent, 20 June 2020) <https://www.independent.co.uk/news/uk/home-news/court-case-delay-englandwales-coronavirus-lockdown-cps-a9577006.html> accessed 15 July 2020 690 Angela Morris, ‘Business is Booming for Mediators as COVID-10 Cools Courts’ (Law.com, 2 April 2020) <https://www.law.com/texaslawyer/2020/04/02/business-is-booming-for-mediators-as-COVID-19-cools-courts/> accessed 15 July 2020; Robert Storace, ‘Mediations Are on the Rise, and Experts Expect Them to Continue After Courthouses Reopen’ (Law.com, 22 June 2020) <https://www.law.com/ctlawtribune/2020/06/22/mediations-areon-the-rise-and-experts-expect-them-to-continue-after-courthouses-reopen/> accessed 15 July 2020; Kohe Hasan and Teh Joo Lin, ‘Firms should consider mediation to settle rows amid COVID-19 disruptions’ (The Straits Times, 23 May 2020) <https://www.straitstimes.com/opinion/firms-should-consider-mediation-to-settle-rows-amidCOVID-19-disruption> accessed 15 July 2020. 691 Angela Morris (n 690). 692 Jemma Slingo, ‘Dispute resolution giants create pandemic service to ease court burden’ (The Law Society Gazette, 19 June 2020) <https://www.lawgazette.co.uk/news/dispute-resolution-giants-create-pandemic-serviceto-ease-courtburden/5104702.article#:~:text=Dispute%20resolution%20giants%20create%20pandemic%20service%20to%2 0ease%20court%20burden,-By%20Jemma%20Slingo&text=Two%20major>.; Kohe Hasan and Teh Joo Lin (n 690). 693 Joe Nocera, ‘It Took Coronavirus Pandemic to Settle Bayer’s Roundup Suits; Viewpoint’ (Insurance Journal, 10 July 2020) <https://www.insurancejournal.com/news/national/2020/07/10/575125.htm> accessed 15 July 2020.

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mediation and arbitration to deal with these concerns. Such acumen will guard against an undiscerning shift to embrace out-of-court processes without duly considering the implications. Finally, there is not only a shift towards out-of-court processes, but also towards virtual mediation and virtual arbitration. To add another layer of complexity, there is the further option of have partially remote processes, with some parties participating virtually and others being present in person. This trend is likely to grow in countries where lockdowns are cautiously lifted and stringent measures are still put in place to limit face-to-face meetings. In other words, the full suite of dispute resolution options have now expanded greatly, requiring virtual and partially virtual out-of-court processes to be seriously considered. The legal advisor’s ability to fit the dispute and parties’ needs to the most suitable process is all the more vital in the future. It will mean that legal advisors should gain awareness of the practical implications of the use of technology on the process and the outcome of the relevant mode of dispute resolution.

Online Dispute Resolution More importantly, the dispute resolution community should realise that videoconferencing is but a small part of the burgeoning field of ODR. In fact, some ODR scholars would not consider Zoom mediation and the like to be ODR processes. The concept of technology as the fourth party was discussed as early as 2011 to creatively depict how different technological tools may assist or even replace the third-party decision-maker, mediator or arbitrator. 694 Using a videoconferencing or teleconferencing platform for a dispute resolution process has been considered a very early and mundane iteration of ODR.695 Since then, ODR tools and systems have been developed to do much more than provide a communication channel. Ethical principles have been developed to guide the design and implementation of ODR systems and tools.696 In the last few years, many courts have swiftly introduced ODR systems. These are end-to-end systems that allow the court user to accurately understand the problem, negotiate virtually with the other party, attend virtual mediation or arbitration, and, as a last resort, have an online hearing. Apart from videoconferencing tools, the systems utilise chat systems, and have customised answers to court users’ queries. In the future, some of these systems could well be enhanced with decision-making and prediction tools, and negotiation support tools that can assist parties to reach a resolution of their dispute more easily.697 In short, the use of online audio- and video-conferencing tools is probably skimming the surface of the entire suite of ODR options. Still, ODR proponents are hopeful that this is a positive start to the greater embracing of other ODR processes. It may well be a catalyst Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass, San Francisco 2001). 695 Ethan Katsh and Orna Rabinovich-Einy, Digital Justice: Technology and the Internet of Disputes (OUP 2017) at pp 33-36 696 See e.g. International Council for Online Dispute Resolution Standards for Online Dispute Resolution <https://icodr.org/standards/> accessed 15 July 2020 697 Dorcas Quek Anderson (n 637) 694

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to shift the entire dispute resolution field to make a long-lasting paradigm shift to give greater prominence to both alternative dispute resolution and ODR.

Virtual mediation Turning back to the use of online modes of communication, this section will consider the notable issues brought about by the growth of online mediation. One key concern relates to maintaining confidentiality of the mediation process. Confidentiality is a quintessential characteristic of mediation that is protected by many countries’ mediation legislation, and articulated as a key ethical principle. At the start of the pandemic, the mediation community was most preoccupied with choosing the best videoconferencing that was flexible enough for mediation and yet has sufficient security features. Many private mediators initially favoured the Zoom software because of it offered users flexibility to customise functions to suit the particular needs of the mediation, and it allowed the mediator to create breakout rooms to convene private sessions with certain parties. However, some mediators were alarmed after news of ‘zoom bombing’ and the lack of end-to-end encryption surfaced.698 In the past few months, security updates made by Zoom and improvements in other videoconferencing tools have assuaged the fears about breach of confidentiality. Mediators who use Zoom are now protected by the latest security functions of having a waiting room by default to admit participants, requiring the host to specify whether a password is required when scheduling new meetings, and allowing the host to lock the meeting once started to prevent any external party from entering.699 Nevertheless, some mediators still have reservations about using this popular platform because there is no end-to-end encryption. Given that the differences between Zoom and other software’s functions will potentially be narrowed in the future, mediators will have a greater choice of platforms to use to ensure the greatest level of security. Mediators have also been showing greater interest in online mediation systems created by companies like Crek and Modron.700 These systems usually offer a higher level of security and a complete suite of services to mediators including case management, sharing of documents and online execution of mediated settlement agreements. Instead of relying solely on video-conferencing for the mediation, they also 698 Rick Weiler, ‘Is Zoom Good Enough for Mediation?’ (Kluwer Mediation Blog, 6 April 2020) <http://mediationblog.kluwerarbitration.com/2020/04/06/is-zoom-good-enough-formediation/?doing_wp_cron=1594954384.9748320579528808593750> accessed 15 July 2020. 699 Don Philbin, ‘Tailoring Zoom to Mediation for the Moment’ (ADR Toolbox, 31 March 2020) <http://www.adrtoolbox.com/2020/03/tailoring-zoom-to-mediation-for-the-moment/> accessed 15 July 2020; John Grant, ‘Zoom is safe for Lawyers (if you use it right)’ (Agile Attorney Network, 26 March 2020) <https://agileattorney.com/zoom_is_safe_for_lawyers/> accessed 15 July 2020; Will Chalmers, ‘Zoom is safe and secure for mediation’ (Mediator Network, 9 April 2020) <https://www.mediatornetwork.org/zoom-is-safe-andsecure-for-mediation> accessed 15 July 2020. 700 Crek ODR <https://crekodr.com>; See You Out of Court <https://www.seeyououtofcourt.com>; Alan Limbury, “Mediating Online – is it Time to Move from Improvising to a Dedicated Platform’ (Kluwer Mediation Blog, 22 April 2020) <http://mediationblog.kluwerarbitration.com/2020/04/22/mediating-online-is-it-time-tomove-from-improvising-to-a-dedicated-platform/?doing_wp_cron=1594954878.2749938964843750000000> accessed 15 July 2020; Modron Spaces <https://www.modron.com/> accessed 15 July 2020.

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offer allow the mediator to facilitate the negotiations using text messaging, an asynchronous mode of communication that can complement the use of video-conferencing. Confidentiality and security is therefore likely to assume greater prominence within the mediation field with the increased use of online tools and systems. In addition, mediators have been grappling with adjusting to the different dynamics of human interaction on video-conferencing platforms. As alluded to in the preceding section, human engagement and mutual understanding are more difficult to achieve in this setting compared to face-to-face mediations. In comparison to adjudication, a large part of the mediator’s role involves managing conversations, active listening and building relationships with the parties. Mediators are accustomed to ‘reading the room’ and the body language of all participants carefully. However, these non-verbal cues and social presence are less readily grasped during videoconferencing. Consequently, the mediator is less able to discern the participants’ state of mind and to intervene appropriately.701 Research concerning negotiation has also consistently reflected challenges in building trust and assessing the partner’s emotions accurately when negotiating online. 702 Notwithstanding these constraints, some mediators have found that they are better able to build intimacy with the participants, because the more informal setting results in everyone being more relaxed. For instance, one mediator found that the parties displayed more candour in the online setting and seemed more aware of the effect of their online conduct, as if ‘this electronic distancing enables a different kind of intimacy or openness’.703 Indeed, as more people are accustomed to working and communicating via video-conferencing, they may be increasingly comfortable with this mode of communication, and may develop unique ways of building relationships in the virtual environment. In this respect, it is notable that the available research has shown conflicting results on whether parties tend to be more cooperative or adversarial in their online negotiations.704 It is thus unwise for mediators to make generalised conclusions that intimacy is necessarily reduced in the online setting. Much will probably depend on the familiarity of the specific parties with the technology, and their default behaviour in the online setting. Moving mediation to the online realm has created new opportunities for mediators to develop best practices and techniques to conduct online mediations effectively. Some mediators have highlighted the greater importance of verbalising thoughts and emotions, and asking frequent 701 Greg Bond, ‘Feeling the Non-Verbal: Analogue and Digital Communication in Mediation, Facilitation and Training’ (Kluwer Mediation Blog, 24 June 2020) <http://mediationblog.kluwerarbitration.com/2020/06/24/feeling-the-non-verbal-analogue-and-digitalcommunication-in-mediation-facilitation-andtraining/?doing_wp_cron=1594955031.5964748859405517578125> accessed 15 July 2020. 702 I Geiger (n 667). 703 John Sturrock, ‘Mediations, using Zoom – a revelation?’ (Kluwer Mediation Blog, 29 May 2020) <http://mediationblog.kluwerarbitration.com/2020/05/29/mediations-using-zoom-arevelation/?doing_wp_cron=1594955202.0290949344635009765625> accessed 15 July 2020 704 I Geiger (n 667) at p 240

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questions to assess the parties’ state of mind. Others have noted the importance of building rapport with participants prior to the mediation by having pre-mediation conversations and walking the lawyers and parties through the technological details to allay any fears about using an unfamiliar platform for mediation. Hence, it is highly likely that the mediation profession will adjust their skills in the analogue world to the virtual world, and that the parties become increasingly adept with communicating effectively with video-conferencing. As observed in one news report, the playing field between face-to-face mediation and remote mediation has been levelled because of the pandemic.705

Virtual arbitration Like private mediators, arbitration institutions have also been updating their rules and practices to accommodate remote arbitrations. Making the transition may not be as difficult, as many steps in an international arbitration such as case management conferences and exchange of submissions have been routinely done virtually. It has been suggested that current pandemic could be a game changer for the international arbitration industry, as shifting hearings to the virtual world would be meeting many arbitration users’ preferences and cutting down on substantial costs of travel.706 Nevertheless, several unique questions arise for remote arbitrations. The most fundamental issue relates to whether hearings can be validly held remotely without the parties’ agreement. The answer will depend on the relevant law of the seat of arbitration. Some commentators have suggested that the tribunal has such powers under rules such as the International Chamber of Commerce (ICC) Rules that expressly allow the tribunals to hold remote hearings, or under the tribunal’s general power to conduct the arbitral proceedings as they see fit.707 However, others take the view that such a power should be exercised very cautiously, so as to give regard to the parties’ right to be heard and be treated equally. It is highly likely that party autonomy, a distinguishing feature of arbitration compared to litigation, will be given great regard and that the power to order remote hearings against the parties’ wishes will be exercised sparingly. The second issue concerns the enforceability of arbitral awards arrived through remote hearings. A party may 705 Angela Morris (n 690). 706 Maxi Scherer, ‘Remote Hearings in International Arbitration – and What Voltaire Has to Do with It?’ (Kluwer Arbitration Blog, 26 May 2020) <http://arbitrationblog.kluwerarbitration.com/2020/05/26/remote-hearings-ininternational-arbitration-and-what-voltaire-has-to-do-withit/?doing_wp_cron=1594955445.2844650745391845703125> accessed 15 July 2020; Francois Lassalle, ‘The Real “Arbitration 2.0” – How a Pandemic Rocked the Arbitration Boat’ (LinkedIn, 9 June 2020) <https://www.linkedin.com/pulse/real-arbitration-20-how-pandemic-rocked-boat-francois-lassalle/> accessed 15 July 2020. 707 Maxi Scherer, ‘Remote Hearings in International Arbitrations: An Analytical Framework’ (Queen Mary University of London, School of Law Legal Studies Research Paper No. 333/2020, forthcoming in Journal of International Arbitration 2020); Mireze Philippe, ‘Offline or Online Virtual Hearings or ODR?’ (Kluwer Arbitration Blog, 26 April 2020) <http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-onlinevirtual-hearings-or-odr/> accessed 15 July 2020.

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seek to set aside or resist recognition of the award based on a breach of right to a physical hearing or the right to be heard due to being unable to effectively present arguments. Scherer notes that remote hearings in themselves have generally not been found to breach the parties’ rights in case law. 708 However, severe technical difficulties faced during the hearing has been raised in the Australian court in an attempt to set aside the award. Although the court refrained from setting the award aside, this case underscores the palpable risk of technical difficulties severely disrupting the arbitration hearing.709 A related concern arises with regard to partially remote arbitration hearings. It has been pointed out that the tribunal has to be mindful of how it treats both the party appearing physically and the party participating remotely, so as to prevent allegations of unequal treatment.710 Following from the above three issues, many practical considerations concerning planning for the arbitration hearing have emerged, many of which have also surfaced for court hearings. Many arbitrators have made reference to the Seoul Protocol on Video Conferencing in International Arbitration which was most presciently discussed prior to the pandemic. 711 It gives useful recommendations such as providing technical support to the witness, ensuring minimum technical standards are in place to avoid poor quality feed or delay, testing the video conferencing prior to the arbitration and having teleconferencing backup plan. Several other institutions including the ICC and the Chartered Institute of Arbitrators have formulated comprehensive guidelines on preparation for and conduct of the arbitration. Useful safeguards have been suggested such as requiring witnesses to be alone when testifying, or getting the witness to open a sealed box of documents in front of the camera.712 These guidelines could form the basis of an agreed protocol for the remote arbitration.

708 Maxi Scherer (n 707) p 31 709 Sino Dragon Trading v Noble Resources International (2016) FCA 1131 (Federal Court of Australia), referred to in Maxi Scherer (n 706) p 31 710 Maxi Scherer (n 706) at pp 33 -34 711 Alexander Fawke, ‘Conducting arbitration remotely in the wake of COVID-19: the Seoul Protocol on Video Conferencing in International Arbitration’ (Linklaters, 23 March 2020) <https://www.linklaters.com/en/insights/blogs/arbitrationlinks/2020/march/conducting-arbitration-remotely-inthe-wake-of-covid19> accessed 15 July 2020; Jessica Sabbath and Brianna E. Kostecka, ‘INSIGHT: Best Practices for Conducting Remote Arbitration Hearings’ (Bloomberg Law, 21 April 2020) <https://news.bloomberglaw.com/us-law-week/insight-best-practices-for-conducting-remote-arbitrationhearings> accessed 15 July 2020; Crag Tevendale, Charlie Morgan and Vanessa Naish, ‘Update [7]: “Necessity is the Mother of Invention”: COVID-19 Dramatically Accelerates Digitalisation of Arbitration Processes’ (Herbert Smith Freehills, 26 June 2020) <https://hsfnotes.com/arbitration/2020/06/26/update-7-necessity-is-themother-of-invention-COVID-19-dramatically-accelerates-digitalisation-of-arbitration-processes/> accessed 15 July 2020. 712 Sabbath and Kostecka (n 711); Chahat Chawla, ‘International Arbitration During COVID-19: A Case Counsel’s Perspective’ (Kluwer Arbitration Blog, 4 June 2020) <http://arbitrationblog.kluwerarbitration.com/2020/06/04/international-arbitration-during-COVID-19-a-casecounsels-perspective/?doing_wp_cron=1591731619.7565040588378906250000> accessed 15 July 2020.

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Reaping more gains than losses for dispute resolution It has been common for consultation studies on remote courts and dispute resolution practitioners to indicate a palpable sense of loss as dispute resolution is involuntarily being taken online. However, this sense of loss could help underscore the critical values of the relevant dispute resolution process. It is an opportune time for the dispute resolution community to ponder afresh on and articulate these fundamental values. At the same time, it is vital that we do not simply lament what has been lost. Nimbleness and creativity are needed to imagine how the underlying values of each justice system may be fulfilled in the virtual environment, and to recognise the unparalleled opportunities accorded by technology to reap substantial gains. A considered analysis of these issues will ultimately enable the dispute resolution landscape to reap more gains than losses in the post-pandemic world.

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24. Hearing essential and urgent court matters during the COVID-19 pandemic Lau Kwan Ho713 and Daryl Xu714 Introduction On 11 March 2020, the World Health Organization declared COVID-19 to be a pandemic. On 27 March 2020, the Singapore judiciary notified court users that remote hearings were to be implemented for certain types of hearings by means of video and telephone conferencing facilities. 715 Subsequently, following a deterioration of the public health situation, all matters scheduled for hearing from 7 April 2020 to 1 June 2020 were adjourned to a future date, unless the matter was assessed to be ‘essential and urgent’. 716 Court users were also provided with indicative lists of matters which might be considered essential and urgent. The present commentary discusses the adoption of that threshold, one vital aspect of the Singapore judiciary’s response in maintaining the delivery of court services during the health crisis.

The context A fuller understanding of that response requires an appreciation of the surrounding context. For the whole of March 2020, Singapore did not impose any measures prohibiting the general movement of the populace. It was therefore unsurprising that physical court hearings continued to take place at the time. But precautions were already being taken to reduce social contact and transmission risk. Judges, judicial officers and staff were working in split teams, the number of lawyers and litigants appearing per party was limited and, as mentioned, video and telephone conferencing was used for certain types of hearings.717

713 Assistant Professor of Law and DS Lee Foundation Fellow, Singapore Management University; Advocate and Solicitor, Singapore. 714 Advocate and Solicitor, Singapore. 715 Registrar’s Circular No 3 of 2020 (Supreme Court of Singapore, 27 March 2020). 716 Registrar’s Circular No 4 of 2020 (Supreme Court of Singapore, 5 April 2020); Registrar’s Circular No 5 of 2020 (Supreme Court of Singapore, 24 April 2020); Registrar’s Circular No 8 of 2020 (State Courts of Singapore, 5 April 2020); Registrar’s Circular No 9 of 2020 (State Courts of Singapore, 24 April 2020); Registrar’s Circular No 2 of 2020 (Family Justice Courts of Singapore, 5 April 2020); Registrar’s Circular No 3 of 2020 (Family Justice Courts of Singapore, 24 April 2020); Registrar’s Circular No 13 of 2020 (Syariah Court of Singapore, 6 April 2020); Registrar’s Circular No 14 of 2020 (Syariah Court of Singapore, 23 April 2020). 717 Chief Justice Sundaresh Menon, ‘Message from Chief Justice Sundaresh Menon: The Singapore Judiciary’s Response to COVID-19’ (Supreme Court of Singapore, 27 March 2020) <www.supremecourt.gov.sg/docs/default-source/default-document-library/message-from-cj-on-COVID197292f832fc614700a0e435c6c75292a4.pdf> accessed 17 July 2020.

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Then, on 3 April 2020, the Prime Minister announced that the country would enter a ‘circuit-breaker’ phase – a partial lockdown condition during which movement would be greatly restricted – beginning 7 April 2020. The lockdown, implemented primarily by way of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020, prohibited individuals from leaving their ordinary places of residence save for prescribed purposes, one of which pertained to the provision of ‘essential services’. Relevantly, legal services involving the conduct of matters specified as ‘essential and urgent’ in Registrar’s Circulars issued by the courts were included as essential services. By this the Judiciary was effectively given some power to affect the ambit of permissible outdoor movement by legal services providers during the circuit-breaker period for the purposes of conducting court hearings. Further to external consultation,718 the Supreme Court, State Courts, Family Justice Courts and Syariah Court issued Registrar’s Circulars informing that all matters scheduled for hearing from 7 April 2020 to 1 June 2020, save for those assessed to be essential and urgent, were generally adjourned to a date to be fixed. The circulars further prescribed that even essential and urgent matters would be heard by electronic means of communication unless otherwise directed. Guidance was also offered on what was essential and urgent. Essentially there were two ways a matter could be determined to be so. The first was that the matter might be considered essential and urgent if it was of a type that was listed in the schedules to the circulars (the ‘listed types of matters’). The second was that a matter that was not a listed type of matter could be assessed as essential and urgent by a court if a request were made for that purpose. The broad intention of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 read together with the relevant Registrar’s Circulars therefore seems relatively clear. It was to achieve a system-wide shutdown of court services, preserving only the minimum of hearings to ensure that ‘the most critical and pressing justice needs continue to be served during the pandemic period’.719 It is in this context that important issues relating to access to the courts have arisen. Before the pandemic struck, many of them would probably have been contemplated only by lawyers acting out doomsday scenarios. As a practical matter, who should decide if a matter ought to proceed for hearing in a crisis? What considerations might affect that decision? On a more philosophical level, what does the ideal of access to the courts require in times of severe upheaval? At what price, and for how long, can a society function without effective access to the courts? At least the Law Society of Singapore was consulted on the initial issuance of the circulars; see Gregory Vijayendran SC, ‘Essential Legal Services Pursuant to Circuit-Breaker Measures Against COVID-19’ (Law Society of Singapore, 5 April 2020) <www.lawsociety.org.sg/wp-content/uploads/2020/04/Essential-LegalServices-Pursuant-to-Circuit-Breaker-Measures-for-website-6Apr20.pdf> accessed 17 July 2020. 719 Standing International Forum of Commercial Courts, Annex A to the Memorandum on Delivering Justice During the COVID-19 Pandemic and the Future Use of Technology (29 May 2020) 35 <https://sifocc.org/app/uploads/2020/05/SIFoCC-COVID-19-Annex-A-29-May-2020.pdf> accessed 17 July 2020. 718

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Obviously, this commentary in its present length cannot discuss those issues fully. Instead it will use the response of the Singapore judiciary as a case study to illuminate how a number of the questions raised are not always straightforward ones.

‘Essential and urgent’ In the Singapore judiciary’s utilisation of the ‘essential and urgent’ standard to identify those matters which could be heard during the COVID-19 pandemic and adoption of a twofold approach – listing certain types of matters as presumptively essential and urgent matters, but also permitting parties to request ad hoc for an assessment of their matter as an essential and urgent one – in that identification exercise, there are two inquiries which immediately come to mind. The first centres on the selection of a threshold that focuses on essentialness and urgency; and the second relates to the assessment of any given matter against that threshold. These are discussed in turn.

A threshold question? The declared emphasis on essentialness and urgency is understandable and consistent with the intention to hold a bare modicum of hearings to reduce social contact between individuals during a pandemic. The same formulation was used in Hong Kong, where between 10 February 2020 and 3 May 2020 all court hearings and matters were generally adjourned save for ‘urgent and essential court business’.720 That is not to say that it is the only usable standard. In England and Wales, for instance, the senior judiciary generally delegated to regional judicial leadership the task of identifying matters of priority which could be heard despite the lockdown. That particular benchmark is obviously established at a higher level of abstraction, and conceivably allows the court to account for other relevant circumstances which might impact the decision to let a matter proceed for hearing, such as the variance in staffing and resourcing conditions in different court centres (which appears to have been a main driver for having the delegation arrangement in England and Wales), the ability and capacity of individual litigants (and counsel) to attend hearings and the suitability of a matter for (remote) hearing despite its meeting the essential and urgent threshold. This last-mentioned factor was potentially implicated in a recent criminal case in Singapore. Mr Punithan Genasan had been charged with trafficking in heroin in furtherance of a common intention held with two other persons. The trial in the High Court had been held physically and was concluded on 2 March 2020, following which the trial judge reserved judgment. All of this took 720 See e.g. Notification for Stakeholders about General Adjournment of Court Proceedings from 10 February 2020 to 16 February 2020 (Judiciary Administration of Hong Kong, 8 February 2020); Notification for Stakeholders about General Adjournment of Court Proceedings from 14 April 2020 to 3 May 2020 (Judiciary Administration of Hong Kong, 8 April 2020).

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place prior to 7 April 2020, that is, before the circuit-breaker period and general adjournment came into effect. On 15 May 2020, via a remote video hearing, the judge issued his decision and convicted Mr Genasan.721 At the same remote video hearing, he received oral submissions on sentence and, thereafter, sentenced Mr Genasan to suffer the death penalty.722 It may be wondered whether this conviction and sentencing hearing, potentially affecting the most fundamental of liberties, was not the sort of matter better dealt with in a physical setting than via the impersonal electronic medium. There appears some merit in the supposition that an accused person, or at least one facing the severest punishment imposable by the State, ought not to be denied the dignity of having his or her conviction and sentence handed down in the solemn forum of a physical sitting in a courthouse. Notably, criminal trials and first instance sentencing hearings were not indicatively listed in the relevant circular as essential and urgent matters to be heard remotely in the Supreme Court during the period of general adjournment. Having said that, however, and on the other side of the equation, it might not have been altogether incorrect for the court to have assessed the hearing as having passed the essential and urgent threshold set out in the relevant circular. If there had been no telling at the time when the general adjournment period would lapse, with resultant prejudice to the accused person owing to the sentencing hearing being indefinitely suspended, a judge would probably be entitled to take that into consideration in deciding whether to proceed expediently with a remote hearing, balanced against the public health risks of a physical hearing. It may also be noted that, in Mr Genasan’s case, his counsel was understood not to have objected to the hearing being held via remote video link.723 Finally – and this is something which could perhaps be seen as an additional factor in favour of proceeding with the remote hearing in that case – the trial judge’s ruling on sentence was almost certainly not a final decision (under law the Court of Appeal will have jurisdiction to review it).724 The potential lesson to be gleaned here is that, in setting down the criteria to be satisfied before a matter may exceptionally be heard during a general suspensory period, some value may be realisable in establishing a more open-textured standard – such as, possibly, that a matter should be heard if its vacation or adjournment would result in irretrievable prejudice to one or more of the parties (and vice versa) – with guidance provided on some of the more obviously relevant factors, such as, of course, the essentialness and urgency of the matter. An inclusive benchmark might permit a more considered and multi-factored determination to be carried out, instead of a strict 721 PP v Punithan a/l Genasan [2020] SGHC 98. 722 Selina Lum, ‘Drug offender gets death sentence via remote hearing’ (The Straits Times, 16 May 2020) <https://www.straitstimes.com/singapore/courts-crime/drug-offender-gets-death-sentence-via-remotehearing#:~:text=A%20Malaysian%20debt%20collector%2C%20who,hearing%20amid%20the%20coronavir us%20pandemic.&text=The%20couriers%20were%20convicted%20in%202015>. 723 John Geddie, ‘Man sentenced to death in Singapore on Zoom call’ (Reuters, 20 May 2020) <https://www.reuters.com/article/us-singapore-crime/man-sentenced-to-death-in-singapore-via-zoom-callidUSKBN22W0I6>. 724 Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 313 and 394B.

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utilitarian calculus that the essentialness and urgency standard simpliciter tends toward. Any concern that the exercise could then become overly complex or unwieldy may be assuaged by observing the twofold approach already existing in Singapore; that is, to provide, in the first place, for certain types of matters which should presumptively be heard during (or despite) the general suspension, but to also allow parties to submit an ad hoc request for assessment of the suitability of their case for prompt hearing.

Essentialness and urgency Turning, then, to consider the ‘essential and urgent’ criterion which obtained in Singapore during the general suspensory period, one can immediately locate some assistance in the Registrar’s Circulars that were issued. The Syariah Court indicated that, in general, a matter which was timesensitive or which involved the safety or other urgent needs of a person was an essential and urgent matter. At the Family Justice Courts, essential and urgent matters were said to generally comprise those matters which were time-sensitive, constituted a threat to life and liberty and/or involved urgent needs of the family. And over at the Supreme Court and State Courts, it was stated that in determining whether a matter was essential and urgent, a court would have regard to (among other factors) whether the determination of its outcome was time-sensitive, and whether there was any legal requirement for the matter to be heard within a specified timeframe. However, a matter was not essential and urgent merely because it was convenient for the parties to have the matter heard early or as scheduled. At first glance some of this may appear to place greater emphasis on the urgency of the matter than on its essentialness. Importantly, however, the guidance provided was prescriptive but not exhaustive, and so it should have remained possible for parties to introduce other factors for the court’s evaluation. It is likely also that the conjunctive phraseology (essential and urgent) was intended to import a dual requirement of criticality as well as time-sensitivity,725 both of which must have been satisfied in order for the matter to proceed exceptionally for hearing. The supposition here seems to be that a matter which is essential (whether for the parties concerned or for the development of the law) may not necessarily be urgent, and vice versa. This use of the ‘essential and urgent’ benchmark is a significant part of, but does not fully capture or explicate, the balance that was struck by the Singapore judiciary at a time when an externality (in this instance, the health emergency) necessitated severe restrictions on the public’s access to the courts. In actuality there exist a number of tensions, even within the context of Singapore alone, See also Chief Justice Sundaresh Menon, ‘Justice in Times of COVID-19’ (Judicial Integrity Network in ASEAN Webinar, 28 May 2020) paras 3 and 17 <www.supremecourt.gov.sg/docs/default-source/defaultdocument-library/undp-webinar703e7e87220c43348bacbed546e2c70a.pdf> accessed 17 July 2020.

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which pull in opposite directions. The physical well-being of the public, court staff and judges is not to be unjustifiably risked, but some disputes are said to necessitate prompt legal responses; remote hearings are designed to mitigate that risk, but some situations are viewed as unsuitable for resolution by electronic means; even a deteriorating state of public health and the increasing use of technology has to be realistically assessed against orthodox claims to open justice, respect for the dignity of litigants and the oral in-person procedures through which factual evidence is usually thought to be most effectively given.726 It is therefore encouraging that the Singapore judiciary appears to have implicitly taken into consideration a number of these tensions during the pandemic, most notably in how it laid down the listed types of matters as presumptively essential and urgent, in a manner that went beyond the dry pragmatism suggested by the language of the chosen phraseology. This ex ante categorisation would obviously have helped to place on certain ground those matters which were more clearly prejudiced by an unforeseen adjournment balanced against the underlying tensions, but it also operated more subtly as a list to be compared against (almost ejusdem generis-like) for those parties who might have considered making an ad hoc request for their matter to qualify for an exceptional hearing; that would have reduced the potential for unnecessary satellite litigation. Also, one example of a deliberate step, reflected too in the ex ante categorisation, was to not only list criminal trials in the State Courts which concerned accused persons in remand or which needed to be expedited in the interests of justice as essential and urgent matters to be conducted despite the general suspension of hearings, but additionally require such trials to be held in person – unlike criminal applications or mentions, which could be heard via video link – with all parties, witnesses and counsel attending physically in court unless otherwise informed. Careful thought has evidently gone into determining the composition of the listed types of matters; it should be rewarding, once the dust has settled, to understand more fully the viewpoints of the relevant actors and further evaluate the operation of the ‘essential and urgent’ standard.

Conclusion The COVID-19 pandemic is, without doubt, one of the most critical public emergencies the world has known in the modern era. Societies have had to wrestle with deep questions in relation to the rule of law and the limits to emergency powers. This commentary has focused on one particular aspect of the former: the implications for the public right of access to the courts in times of upheaval. The experience of the Singapore judiciary, in having successfully maintained the delivery of court services during the pandemic, not only allows for vital lessons to be learnt but raises intriguing It is right to note that these procedures are not inflexible, for evidence may permissibly be taken in civil and criminal proceedings via live video or television link under certain circumstances; see Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 281; Evidence Act (Cap 97, 1997 Rev Ed) s 62A; COVID-19 (Temporary Measures) Act 2020 (No 14 of 2020) s 28.

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lines of enquiry for future study. As Sundaresh Menon CJ stated at the end of May 2020, almost two months after the Singapore courts switched generally to full remote hearings: We have been greatly heartened by the generally positive feedback on the use of video and teleconferencing for the conduct of hearings during the ‘circuit breaker’ period. There was general consensus that remote hearings were convenient, cost and time-efficient, and represented an important means by which the Courts could sustain access to justice during the pandemic and hopefully enhance this into the future. We will closely monitor the use of remote hearings, gather feedback and suggestions, and continue to refine and improve the process … Our experience during the pandemic has yielded many valuable lessons that we must now build on to improve our justice system and further enhance access to justice for all who require it.727 It is, perhaps, fitting to close with the observation that relatively little public concern was raised about the issue of access to the courts in Singapore, even at the height of the health crisis. That is a credit to the system which was rapidly implemented in quite unprecedented circumstances, and gives one confidence that the Singapore judiciary will continue to respond adequately to other novel situations in the future.

727 Chief Justice Sundaresh Menon, ‘Message from the Chief Justice: The Judiciary’s Response to the Exit of the “Circuit Breaker” Period’ (Supreme Court of Singapore, 29 May 2020) <www.supremecourt.gov.sg/docs/default-source/default-document-library/chief-justice-message-judiciary's-response-to-exit-of-the-circuit-breaker-period.pdf> accessed 17 July 2020.

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25. Online advocacy: Views from a moot coach Chen Siyuan728 Taking part in an international moot court competition can be one of the most exciting things a law student can do. Months are spent bunkering down with team mates and coaches analysing, researching, and producing written submissions on a wide range of issues that seldom have obvious answers; and more months are spent refining the oral submissions before they are presented to the judges at the competition. There is a particularly unique thrill in the oral phase of the competition, since different teams from different legal cultures have different approaches to the arguments, and different judges have different ideas on what is good advocacy. However, as technologically literate they may be, mooters never had to grapple with the prospect of presenting the arguments using an online platform. The most recent iteration of the coronavirus changed that. In this piece, I identify some of the issues and drawbacks of making legal arguments online. Though my experience has been largely based on observing my mooters compete in moot competitions that were forced to adopt an online format as well as judging such competitions, it is hoped that this piece is pertinent to actual appellate and arbitral proceedings too. Having things move online has not changed the fact that highly trained mooters continue to be prized by law firms – certain fundamentals are universal and transcend the medium. Having said that, the first thing to note about international moots taking place online is that by nature, facts and questions of evidence are not supposed to be disputed in moot competitions. In arbitration moots, there will be an agreed record containing all relevant documentary evidence and witness statements, and in international law moots, there will be a compromis or judgment with findings of fact. Facts – as well as the things that do not make their way into the record, compromis, or judgment – may of course may be interpreted differently by different people, and their relevance and significance to the legal issues is also subject to analysis and skilful marshalling. But with the fact-finding dimension of the dispute removed, matters like the right to confront an accuser, hearsay and cross-examination, and the assessment of witness demeanour do not arise – matters that trial lawyers, particularly of the common law tradition, would no doubt consider indispensable in their litigation toolbox, and resistant to agreement that having proceedings online is an overall improvement. A moot, like an appellate hearing or tribunal hearing that is flexible with evidence, is “sanitised” in this regard, and all the focus is on the advocates (and judges). The second thing to note is that the differences between arbitration moots and non-arbitration moots emerge with greater contrast when they take place online. For instance, showing good and 728 Associate Professor of Law, Singapore Management University.

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consistent teamwork is critical for teams participating in arbitration moots – it is part of the scoring rubric in both Vis moots, and arbitrators who place the greatest premium on a seamless, dynamic cooperation between counsel are almost invariably actual arbitration practitioners who expect the same in actual arbitration proceedings. But in jurisdictions with strict social-distancing measures, the option of appearing as a tandem becomes impossible. Yet it is no coincidence that almost all the semi-finalists of the 2020 Virtual East and Virtual Vienna editions of the Vis were from jurisdictions that did not have regulations preventing team members from gathering in the same location. The ability to project affirmative body language and assist with locating parts of the record made a big difference; so too, in all likelihood, the comfort rendered by having the rest of the team and coaches supporting the team within sight. Another example that emerges with greater contrast online is the difference between standing up (usually for international law moots) and sitting down (usually for arbitration moots). Conventional wisdom states that generally, it is harder to advocate standing up than sitting down. Apart from not having co-counsel assist, when an advocate is standing up, a greater part of the body is visible (which makes distracting behaviour more obvious), there is more inhibited access to notes (or a computer screen for the matter), and there is an expectation to make use of effective hand gestures. Indeed, there is a reason why important speeches are never made sitting down. All of this was made clear in one of the Grand Slam moot championship finals that took place online, and one of the comments given by the judges was that the losing team should not have presented their arguments sitting down. As the moot involved issues that lent themselves to passionate discourse, there was all the more reason to make the arguments standing up. Perhaps a reason the team did not wish to stand was that no lectern was available. This made the allure of reading off a screen even greater. This leads me to the next and broader point about the importance of aesthetics. This assumes greater significance in an online setting, where all the judge can see of the advocate is his face and the background, and what the judge hears hinges on the quality of the connection and microphone used. At the risk of harking back to the false dichotomy between substance and form when it comes to advocacy, it is utterly crucial when making arguments online to present the best possible audio-visual package to the judge. There are only that many concessions one can give to submissions perpetually interrupted by a patchy connection or grated by poor audio input – past a certain point, patience turns to despair, questions dry up, and the most important connection (with the bench) is lost. There was a mooter who had the misfortune of losing the video feed halfway through a championship round. Even with crystal-clear sound, the engagement with the tribunal was clearly compromised. The other side won. The visual aspect explains why one can dispense with it for passive activities like listening to a podcast, but remains important for things that are defined by the quality of interaction. Investing in a quality camera, learning how to frame the shot,

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and taking care to form a professional-looking backdrop all add up to make a difference. Judges whom I have deliberated with express the same sentiment. For organisers of moots, they should also consider the pros and cons of the platform they use. For arbitrations for instance, it is important for the tribunal to be able to follow the mooters through various parts of the record. Not all screensharing functions work equally well. Platforms that severely limit the number of screens should also be avoided, since one should be able to track the expressions of the judges, or see if they have fallen behind. Even as the pandemic becomes increasingly under control, the Singapore courts have announced that, given their convenience and cost and time efficiencies, online hearings are here to stay. When mooters graduate, the bulk of their contentious work would be interlocutory hearings, which is the one domain that is most likely to be held online. Students should start figuring out their pitfalls – and also understand how persuasiveness goes beyond the quality of the research and arguments – while they are still in law school.

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26. Mediation: The new normal? Nadja Alexander729 “Our trust in the future has lost its innocence. We know now that anything can happen from one minute to the next. Politics, religion, economics, and the institutions of family and community all have become abruptly unsure.” Irish poet and philosopher, John O’Donohue730

Imagine Imagine a tightrope walker, walking along a tightrope, holding a long, light rod. To help her balance, the performing artist continually moves the rod, changing the angle of the rod to maintain a constant – her balance in space. If she were to hold the rod in a fixed position, what would happen? She would fall off. In other words, the variation of the rod has the function of maintaining the deeper continuity which enables the artist to make it to the other end, alive. In this essay, the tightrope walker offers a metaphor for dispute resolution systems. In order for a dispute resolution system to survive, it needs to be agile and adapt to changing circumstances; to evolve – just like a tightrope walker.

COVID‐19 and conflict In the year 2020, as the COVID-19 pandemic brings the world to a near standstill, the moving imagery of the tightrope walker is more compelling than ever. Caught in this ongoing moment of uncertainty, we are being asked to reimagine many things – how we work, how we socialise, how we travel, and how we live as family units. We are also being asked to reimagine how we manage conflict – from the kitchen table to the boardroom table. Within families, the impact of the pandemic has been felt in a myriad of ways. Whether it’s the pressure of confinement, precipitating disputes, domestic violence and divorce or COVID-linked unemployment causing hardship at home, there are indications of a rise in family-related conflict.731

729 Professor of Law (Practice), Singapore Management University. I would like to express my gratitude to Lushna Khialani (SMU law student) for her robust and responsive research assistance. 730 John O’Donohue, Divine Beauty: The Invisible Embrace (Bantam Press, 2003) at p 13. 731 Amanda Taub, ‘A New COVID-19 Crisis: Domestic Abuse Rises Worldwide’ (The New York Times, 14 April 2020) <https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html> accessed 21 July 2020; Emma Graham-Harrison, Angela Giuffrida, Helena Smith, and Liz Ford, ‘Lockdowns around the world bring rise in domestic violence’ (The Guardian, 28 March 2020)

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In commercial and consumer settings, countless arrangements have been disrupted through no fault of either party, from disrupted travel to frustrated joint venture construction contracts. As a result, courts around the world are bracing themselves for a tsunami of legal cases emerging from the pandemic that will consume them in the years, if not decades, to come. For many, this means that timely and affordable access to justice in a court of law will not be a realistic expectation. And yet, the chances for businesses to survive this global economic downturn will depend, in large part, on the timely and commercially sensible resolution of disputes. No matter how we cling to its deep and firm tradition, we can’t help but feel the solid ground of the legal system shift under our feet, to reveal fault lines in the litigation, and to some extent arbitration, 732 landscapes. Emerging through the cracks, however, newer forms of Appropriate Dispute Resolution (ADR) such as mediation are seemingly pandemic-proof. In fact, the future of mediation has never looked rosier.

Mediation 2020: freedom within framework So what is it about mediation that makes it attractive in these changing and challenging times? To continue the tightrope metaphor, mediation systems offer users the procedural agility and intuitive responsiveness of the moving rod to navigate unprecedented change. At the same time, mediation systems are grounded in robust regulatory frameworks, characterised by solid standards of ethical integrity and professional competence, which keep the parties’ feet moving forward on the thin wire that leads to resolution. In other words, there is freedom within framework. It is precisely this freedom that gives commercial parties the opportunity to rise above their entrenched adversarial positions and engage with their counterparts to address problems in creative ways that: 

can lead to commercially sensible outcomes,



preserve business relationships, and



avoid further disruption to business activities, for example through lengthy litigation proceedings.

<https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-violence> accessed 21 July 2020. 732 Paul Baker and Naomi Vary, ‘International Risk Team: Arbitration in the time of Coronavirus - should Tribunals suspend proceedings?’ (Reynolds Porter Chamberlain LLP, 22 April 2020) <https://www.rpc.co.uk/perspectives/insurance-and-reinsurance/international-risk-team-arbitration-in-the-timeof-coronavirus-should-tribunals-suspend-proceedings/> accessed 21 July 2020; Chahat Chawla, ‘International Arbitration During COVID-19: A Case Counsel’s Perspective’ (Kluwer Arbitration Blog, 4 June 2020) <http://arbitrationblog.kluwerarbitration.com/2020/06/04/international-arbitration-during-COVID-19-a-casecounsels-perspective/?doing_wp_cron=1595311993.3482420444488525390625> accessed 21 July 2020.

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Moreover, it is the freedom to design mediation procedures and tailor outcomes to suit unique sets of disputants’ needs that has encouraged a diversity of mediation practices that include facilitative, expert advisory, wise counsel, transformative mediation and other approaches. Beyond this, mediation services are increasingly offered online and as a core component of mixed mode dispute resolution procedures such as Arb-Med-Arb. 733 International commercial mediation has been successfully used in a range of sectors including manufacturing, mining, construction, intellectual property, and insurance and reinsurance. Mediation has come to represent a rich and sophisticated smorgasbord of choice within the ADR field. 734 The diversity of mediation is well illustrated by the Singapore International Mediation Centre (“SIMC”) COVID-19 Mediation Protocol issued in June 2020. The Protocol aims to provide businesses with an expedited, economical and effective route to resolve any international commercial dispute during the COVID-19 pandemic period. It is illustrative of a leading mediation service provider reaching out to a severely disrupted market. Under the Protocol, parties are offered an expedited, economical and effective route to attempt to settle their international commercial dispute during the COVID-19 pandemic period. Multiple variations of the mediation procedure are available. For example, mediation may be offered offline (face-to-face), online or in a blended on- and offline mode; diverse mediation practice models are available depending on the needs and wishes of the parties. Single mediators or mediator teams from around the world may be appointed. Here, online mediation is appealing as it circumvents the challenges posed by global travel restrictions. Mediator appointments are made within 10 days and mediations generally take one day at SIMC. Further, if parties prefer, SIMC can offer a mixed mode Arb-Med-Arb procedure. Finally, for matters with a Singapore connection, SIMC’s COVID-19 protocol neatly complements Singapore’s COVID-19 (Temporary Measures) Act. As the Act provides temporary (and not 733 Examples of this include the SIMC-SIAC Arb-Med-Arb Protocol (see Singapore International Mediation Centre, ‘Arb-Med-Arb’ <http://simc.com.sg/dispute-resolution/arb-med-arb/> accessed 21 July 2020 and the Singapore Infrastructure Dispute-Management Protocol (see Singapore Mediation Centre website <https://www.mediation.com.sg/our-services/overview-of-services/singapore-infrastructure-disputemanagement-protocol/> accessed 21 July 2020. 734 See Chief Justice Sundaresh Menon, ‘Shaping the Future of Dispute Resolution & Improving Access to Justice’ (Global Pound Conference Series 2016, Singapore, 17 March 2016) <https://www.supremecourt.gov.sg/Data/Editor/Documents/Global%20Pound%20Conference%20Series%2020 16,%20Shaping%20the%20Future%20of%20Dispute%20Resolution%20%20Improving%20Access%20to%20J ustice.pdf> at [25]: “An ideal system of justice is one that delivers justice that is customised to each type of case, keeping in mind the subject matter, the parties, and the desired outcomes. This is a situation where one size does not always fit all. In this regard, it would perhaps be timely to embrace a paradigm shift and understand ‘ADR’ as a reference to ‘Appropriate Dispute Resolution’ instead. This requires us to move away from our traditional and rigid ideas of how disputes should be resolved, towards a flexible and option-laden model where disputants are well-placed to choose the ideal mode of dispute resolution from a suite of options.”

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permanent) relief from legal action, parties can make best use of the temporary reprieve to mediate a commercial solution that is sustainable for both parties in the longer term. Here the focus is not so much on strict legal rights, but fairness, reasonableness and, as tightrope walkers will tell you, balance. Mediation is promoted as a flexible process conducive to reaching innovative solutions beyond that which courts and arbitral tribunals can offer. At the same time, this does not mean that it is without structure. Mediation’s freedom is offered within a framework. In most cases, international commercial mediation is founded upon flexible and mutually derived contractual arrangements, and can take place on an ad hoc or institutional basis. In terms of institutional frameworks, we have observed the development of institutional capacity for mediation of cross-border disputes since the late twentieth century. Major international arbitration institutions now also offer mediation services735 and mediation centres, initially focussed on local disputes, have extended their services to include the mediation of cross-border disputes.736 Of particular note is the establishment of organisations dedicated to the provision of international mediation services, such as the SIMC 737 and the Japan International Mediation Centre-Kyoto. 738 In addition to institutions that offer commercial mediation for cross-border disputes, institutions specialising in specific practice areas of international mediation are emerging. Specialisation areas include consumer e-disputes, family, intellectual property (“IP”), investor– State disputes and State-to-State disputes.739 The gradual and steady growth of international mediation practice and its institutionalisation has been accompanied by the development of a robust (international) legal framework that gives mediation the legal “teeth” to be able to respond to real, immediate needs. See e.g. International Chamber of Commerce Mediation Rules (1 January 2014); London Court of International Arbitration Mediation Rules (1 July 2012); and Permanent Court of Arbitration Optional Conciliation Rules and Optional Rules for Conciliation of Disputes Relating to Natural Resources and the Environment. 736 Examples include the Centre for Effective Dispute Resolution in the United Kingdom (see Centre for Effective Dispute Resolution website <https://www.cedr.com> accessed 21 July 2020, Resolution Institute in Australia (see Resolution Institute website <https://www.resolution.institute> accessed 21 July 2020, and JAMS in the United States of America (see JAMS website <https://www.jamsadr.com> accessed 21 July 2020. 737 See Singapore International Mediation Centre website <www.simc.com.sg> accessed 21 July 2020. 738 See Japan International Mediation Centre-Kyoto website <https://www.jimc-kyoto.jp> accessed 21 July 2020. 739 See e.g. for IP disputes: World Intellectual Property Organization Mediation Rules (effective from 1 January 2020), available at <https://www.wipo.int/amc/en/mediation/rules/> accessed 21 July 2020; for investor-State disputes: International Centre for Settlement of Investment Disputes, “Investor-State Mediation” <https://icsid.worldbank.org/en/Pages/process/adr-mechanisms--mediation.aspx> accessed 21 July 2020; International Bar Association Rules for Investor-State Mediation (4 October 2012) <https://icsid.worldbank.org/en/Documents/process/IBA%20Rules%20for%20InvestorState%20Mediation%20(Approved%20by%20IBA%20Council%204%20Oct%202012).pdf> accessed 21 July 2020; for family disputes: European Justice, ‘Médiation familiale binationale’ <https://ejustice.europa.eu/content_crossborder_family_mediation-387-fr.do> accessed 21 July 2020; for consumer edisputes: Tyler Technologies website <https://www.tylertech.com/products/Modria> accessed 21 July 2020. 735

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Mediation law regulates various aspects of mediation including the procedure itself and rights and obligations of participants involved in mediation. Further, specific mediation laws can trigger pathways to mediation procedures; some laws also regulate mediator standards of conduct and ethics. By way of illustration, in Singapore, a combination of institutional rules, court practice directions and legislation regulates mediation and mediators. In relation to cross-border disputes, the most notable international developments are the UNCITRAL Model Law on International Commercial Mediation (2018)740 and the UN Convention on International Settlement Agreements Resulting from Mediation (called the Singapore Convention), which is to be ratified in September 2020).741 Whereas the Model Law provides a template for jurisdictions to draw from in terms of general regulation of cross-border mediation, the Singapore Convention establishes an expedited enforcement framework for international mediated settlement agreements, binding upon States that ratify it. In other words, the Singapore Convention is mediation’s equivalent of the New York Convention on Arbitration742 – which provided the catalyst that has led arbitration to become the procedure of choice for international commercial dispute resolution.743 Mediation’s promise of freedom with framework sounds appealing. But what do the users say?

What the users say Courts, mediation institutions and individual mediators boast varying settlement rates of between 75% and more than 90%.744 These statistics certainly make mediation an attractive option but they don’t tell the whole story. Let us delve a little more deeply into what users say about the United Nations Commission on International Trade Law, ‘UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (UN Doc A/73/17)’, available at <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/annex_ii.pdf> accessed 21 July 2020. 741 United Nations Convention on International Settlement Agreements Resulting from Mediation (20 December 2018); see United Nations Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-4&chapter=22&clang=_en> accessed 21 July 2020. 742 Convention on the Recognition and Enforcement of Foreign Arbitral Awards 330 UNTS 3 (10 June 1958). 743 Nadja Alexander, Vakhtang Giorgadze and Allison Goh, ‘International Dispute Resolution Survey: 2020 Final Report’ (“SIDRA Survey”) (3 July 2020) <https://sidra.smu.edu.sg/sites/sidra.smu.edu.sg/files/survey/index.html> at p 6, Exhibit 4.1.2. 744 See e.g. Mediate with George website <http://www.mediatewith.me> accessed 21 July 2020; Singapore International Mediation Centre, ‘SIMC Announces Appointment of New CEO, and Board Member’ (1 May 2018) <http://simc.com.sg/blog/2018/05/01/simc-announces-appointment-new-ceo-board-member/> (accessed 21 July 2020); Gary Shaffer, “Court Annexed Mediation By The Numbers” (2018) <https://nysba.org/NYSBA/Coursebooks/Spring%202018%20CLE%20Coursebooks/The%20Litigative%20DN A/III.F.%20Gary%20Shaffer%20-%20Court%20Annexed%20Mediation%20by%20the%20Numbers.pdf> at pp 16, 25–26; Singapore Law Watch ‘Mediation’ <https://www.singaporelawwatch.sg/About-SingaporeLaw/Overview/ch-03-mediation> accessed 21 July 2020; Annie de Roo and Rob Jagtenberg, ‘Mediation in the Netherlands: Past – Present – Future’ (2020) 6.4 Electronic Journal of Comparative Law <https://www.ejcl.org/64/art64-8.html> accessed 21 July 2020; CEDR Asia Pacific, “Mediation FAQs” <http://www.cedr-asia-pacific.com/cedr/mediator/faq.php> accessed 21 July 2020. 740

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attractiveness of mediation as a dispute resolution procedure. A recent international survey has captured the experiences of client and legal users745 from common and civil law jurisdictions in relation to a range of cross-border dispute resolution mechanisms including mediation. The highlights from the SIDRA Survey 2020 relevant to mediation are set out below.

Factors in choice of mediation and satisfaction levels The SIDRA Survey shows high satisfaction rates with mediation for the resolution of cross-border disputes. In selecting mediation, client and legal users indicated the following factors as important in their choice of mediation:746 

impartiality/neutrality (86%)

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speed (85%)

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confidentiality (83%)

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flexibility of processes (82%)

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cost (81%)

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flexibility in choice of institutions/venues/mediators (77%)

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clarity in rules and procedures (76%).

Overall users were satisfied with their mediation experience in terms of these factors -- client users slightly more so than legal users, with 72% to 80% of client users indicating high levels of satisfaction, depending on the specific factor.747

Mediator selection In terms of selection of mediators, the Survey results highlight the importance of trust-worthy neutrals with cultural familiarity. 748 Add to this the importance users attached to impartiality, flexibility and speed in terms of mediation procedure749 and we observe the appeal of the ‘freedom’ that mediation offers.

As defined in the SIDRA Survey client users refer to corporate decision-makers and in-house counsel, whereas legal users refer to legal practitioners external to the client: see SIDRA Survey (n 743) at p 1. 746 ibid at p 46, Exhibit 7.1.1. 747 ibid at p 46, Exhibit 7.1.4. 748 ibid at p 56, Exhibit 7.3.1. 749 ibid at p 46, Exhibit 7.1.1. 745

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Mediation compared to arbitration and litigation

From a comparative perspective, the SIDRA Survey indicates that mediation enjoys higher satisfaction in relation to speed and cost (68% of users were satisfied with the speed of mediation and 65% with its cost) as compared to litigation (speed 45%; cost 48%) and arbitration (speed 30%; cost 25%).750 If we drill down further and distinguish between client and legal users, we find that 72% of client users indicated being ‘very satisfied’ or ‘somewhat satisfied’ with costs in mediation.751 Mediation is by far the leading choice of dispute resolution in respect of speed and costs, especially for client users.

Mediation in mixed mode or hybrid procedures

It is noteworthy that users of mediation rated finality and enforceability as the two least important factors when selecting mediation. This reflects users’ awareness of the opportunities and risks of mediation in international settings. Despite the extremely high settlement rates, 752 mediation does not always offer finality as there is a small chance that parties will not reach a settlement; by comparison, arbitration and litigation will result in an award or a judgment, although these may be subject to appeal. Further, the relatively small number of instances of litigation about mediated settlement agreements, suggest that in most instances, parties stick to their deals and legal enforcement is not an issue. Nevertheless, in a small number of cases, a party may seek to enforce a mediated settlement agreement or invoke it as a defence to arbitration or litigation proceedings.753 The survey findings suggest that where users think there is a reasonable chance of settlement and that the risk of non-compliance is low, they are more likely to favour mediation for the host of reasons listed previously. Where concerns exist about finality and/or enforceability of outcomes, we see users turning to mixed-mode (also known as hybrid) procedures with mediation and arbitration components. For users, mixed-mode procedures promise the best of all worlds – finality, expedited enforceability and preservation of business relationships.754 With the Singapore Convention on Mediation coming into force in late 2020, the flexible procedure of standalone mediation procedures will take place within a more robust international framework that parallels that of arbitration. In the years to come, this may reduce the current appeal of mixed mode procedures. 750 ibid at p 10, Exhibit 4.2.2. 751 ibid at p 11, Exhibit 4.2.3. 752 ibid. 753 James Coben and Peter Thompson, ‘Disputing Irony: A Systematic Look at Litigation About Mediation’ (2006) 11 Harvard Negotiation Law Review 43; Eunice Chua, ‘Enforcement of International Mediated Settlements without the Singapore Convention on Mediation’ (2019) 31 SAcLJ 572 at pp 572–574; Edna Sussman, “The Final Step: Issues in Enforcing the Mediation Settlement Agreement” in Arthur W. Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2008 (Martinus Nijhoff Publisher, 2008). 754 SIDRA Survey (n 743) at pp 73–74.

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Technology

As social distancing has become a standard way of living and doing business with the global pandemic, platforms for the conduct of virtual/online hearings have the potential to become the ‘new normal’ for conducting mediation sessions. How do users relate to technology in mediation? Almost half (48%) of client users (compared to 28% of legal users) rated platforms for the conduct of virtual/online hearings as ‘extremely useful’ or ‘useful’. There was an almost identical finding as regards e-discovery/due diligence. By availing themselves of virtual platforms, client users are able to participate in meetings and mediation sessions online with minimal disruption to their schedules and business. Similar results were reported in relation to negotiation support and automated negotiation tools,755and analytics for appointment of mediator and/or counsel.756 These findings suggest that client users are ahead of legal users in recognizing the usefulness of technology in mediation, showcasing progressive thinking on the part of client users. With increased usage and familiarity of technology-aided mediation tools and platforms, we expect this trend to continue. The findings present an opportunity for legal users to consider greater use of technology in mediation in order to address client expectations on the same.

Lawyers and mediation As the previous discussion on technology suggests, there are opportunities for lawyers to adapt their dispute resolution practices to survive the pandemic, and thrive in the long term. Technology aside, another opportunity for the legal profession is the new specialisation of mediation advocacy. Mediation advocacy skills encompass expertise in advising clients on when mediation may be appropriate or even required; they extend to competency in drafting mediation clauses, mediation agreements and mediated settlement agreements in line with the latest developments in (international) mediation law. Mediation advocacy also refers to the role lawyers play during mediation sessions – a role that can be as diverse as the approaches to mediation itself. In short, lawyers have a vital role to play as advocates in mediation procedures; a role which demands a fundamentally different – yet complementary – skill set compared to traditional trial advocacy. Mediation advocacy involves a multi-dimensional paradigm shift for trial lawyers, from:

755 ibid at p 59, Exhibit 7.4.2. 756 ibid.

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

the adversarial to the collaborative;

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win-lose to win-win;

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a past focus to a future focus;

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a focus on lawyers in trial procedures to a focus on parties in mediation procedures; and

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the need to convince a third-party umpire to the need to reach a consensus with the other side in relation to the resolution of the dispute.

Further, mediation offers lawyers an opportunity to reimagine how they manage their clients’ disputes as part of a resilient pandemic-proof business plan. There is an old lawyers’ joke that ADR does not stand for Appropriate Dispute Resolution but rather Alarming Drop in Revenue. For the record, there is no empirical research to support this assertion. Rather, research indicates that in the current economic climate, organisations that are more likely to weather unexpected largescale storms, such as COVID-19, feature excess resources, a diversified business portfolio and a loose coupling of the components of the overall system – factors often present in family businesses. 757 When it’s business as usual, these factors can be signs of inefficiency – conventional wisdom would suggest that excess resources be trimmed and that systems should be streamlined and optimised. However, as researchers Nirmalya Kumar and Phanish Puranam convincingly argue, “The lesson is that systems composed of weakly coupled parts can take unexpected hits to some parts without the whole system crashing.” How does this relate to mediation and law firms? For clients, mediation makes business sense. For lawyers, it can mean business diversification, placing long-term goals over short-term profits and investing in their legal team to skill them up for mediation advocacy in addition to trial and arbitration advocacy.

Mediation – the new normal? In John O’Donohue’s poetic and prophetic words, written more than a decade ago, there is a sense that every aspect of our lives has become ‘abruptly unsure’. It applies equally to disrupted supply chains as to the application of legal principles to situations previously not contemplated. To deal with the impact of disrupted food supply chains and ongoing movement restrictions, many of us have begun generating our own solutions from home cooking to growing our own herbs and vegetables. In a similar way, mediation allows us to reclaim ownership of our own conflicts and to generate our own socially and commercially sensible solutions to manage them.

757 Nirmalya Kumar and Phanish Puranam, ‘The resilience of family-controlled business groups: ‘Survival of the unfit?’’ (The Edge Singapore, 9 July 2020) <https://www.theedgesingapore.com/views/familybusiness/resilience-family-controlled-business-groups-survival-unfit> accessed 21 July 2020.

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Mediation is not a panacea – there is always going to be opportunity as well as risk in walking the tightrope. But, right now, mediation, in all its diversity, is the best forum we have to deal with the relational and commercial aspects of conflicts emerging from global and local disruptions we could not have imagined less than one year ago.

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“This collection of essays is required reading for anyone interested in understanding law's role in times of unprecedented crisis. At a moment where public health concerns take center stage, the contributions make visible the hidden presence and relevance of law during the pandemic and beyond. Spanning a broad range of fields, the essays collectively highlight how the law in times of crisis not only constrains behaviour, but simultaneously and importantly is a protecting, enabling, and equalizing force. Above all, the essays remind us of law's promise to serve as a mechanism to enhance collaboration and cooperation to the benefit of all members of society, and across boundaries. A strong commitment to unlocking this promise and to the rule of law can be felt across all the contributions.” ‐ Urs Gasser, Professor of Practice, Harvard Law School; Executive Director, Berkman Klein Center for Internet & Society, Harvard University

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