LEX LOCI 2011 by The UKSLSS

LEX LOCI

2011

BIRMINGHAM BRISTOL CAMBRIDGE COVENTRY DURHAM EXETER LONDON LEEDS LEICESTER LIVERPOOL MANCHESTER NOTTINGHAM OXFORD SHEFFIELD SOUTHAMPTON

Clifford Chance Pte. Limited

Where will your legal career take you? Clifford Chance operates across the globe and has offices in the Asia Pacific region in Bangkok, Beijing, Hong Kong, Perth, Shanghai, Singapore, Sydney and Tokyo. With over 400 lawyers in Asia Pacific alone, it is one of the largest international firms in the region, enjoying a market-leading reputation across practices. The Singapore office celebrates its 30th year in Singapore in 2011, and we are one of the few international law firms to hold a Qualifying Foreign Law Practice (QFLP) licence to practise Singapore law. We employ close to 80 lawyers, representing an international mix of people qualified in English, US, Singaporean, Australian and Hong Kong law. We are able to provide multi-jurisdictional legal advice to our clients – in a broad range of corporate and commercial matters – all from our Singapore office. And being part of a network which stretches from Sydney to São Paulo means that we can offer legal advice – as well as opportunities for our lawyers – right across the globe. To find out more about Clifford Chance, visit our website at www.cliffordchance.com.

www.cliffordchance.com

On Career Lex Loci (LL): What made you decide to become a solicitor instead of becoming a barrister? Geraint Hughes (GH): My decision was based on work experience in chambers and at a leading law firm in London. I liked the engagement with clients, working on headline deals and the opportunity of working internationally. LL: We understand that you first joined another Magic Circle firm before moving to Clifford Chance in 1996. Could you provide an insight on what distinguishes Clifford Chance from other international law firms? GH: Three things make Clifford Chance the leading international law firm in my opinion: first, with 33 offices globally, we have a broad practice and a real depth of expertise. Second, we are very collegiate and friendly - there is little by way of hierarchy. Finally, we work on the best deals for leading clients who value the fact that we have more tier one rankings than any other firm globally! On Clifford Chance LL: Clifford Chance is unable to offer training contracts in Singapore under current regulations. What options are then available to Singaporean graduates from UK universities who wish to join Clifford Chance in Singapore? GH: Singaporean UK graduates can apply for a training contract with Clifford Chance London (or any other Clifford Chance office which offers training contracts), qualify in the relevant jurisdiction, then seek a transfer to the Singapore office (and we would encourage them to re-qualify in Singapore under the Legal Profession Act after their return). Alternatively they could return to Singapore and qualify as advocates/solicitors by doing their Part A and Part B exams and fulfilling the Practice Training Period and Relevant Legal Training/Relevant Legal Practice requirements. Because Clifford Chance is licensed to practise Singapore law under our Qualifying Foreign Law Practice (QFLP) licence, they could join us in the Singapore office at that stage. However, we would then encourage them to re-qualify in England under the Qualified Lawyer Transfer Scheme following admission in Singapore. LL: On the whole, what advice would you give to law students who are considering a career with an international law firm, as well as to those who are unsure about whether working for an international law firm is the right fit for them? GH: Think about and invest in your future, gain international experience and qualification, work hard and enjoy yourself! On the Practice of Law LL: The practice of law in an international law firm spans different jurisdictions, some of which have civil rather than common law traditions. In Asia, the major economies including China, Japan and South Korea all have civil law systems. Given that your legal education and training is based on a common law curriculum, have you encountered any problems in trying to adapt to the civil law system? If so, how did you resolve the differences in their philosophies?

GH: My training at Clifford Chance has allowed me to understand and appreciate in full a range of legal systems, including common and civil law systems and their differences. I have also seen how the historic distinctions are blurring – for example, with regard to the introduction of the concept of good faith in English and Australian law. Only through this training can we ensure that we are giving our clients the best advice on the range of options and solutions for particular scenarios that they face. On the future of the Singapore Legal Sector and the wider Asian Economic Region LL: The term ‘Asian Century’ has been coined to describe a belief that the 21st Century will be dominated by Asian economics, politics and culture. Do you agree with this assessment, and what do you think are the opportunities and threats which the Asian legal market faces both presently and in the future? GH: It's the 'Asia Pacific Century'. I mention 'Pacific', because Australia will provide much of the resource for the population growth and increased urbanisation across the PRC, India and elsewhere. There are challenges in the Asia Pacific legal market, but there are greater opportunities. Only those firms who have the vision and the skill to take advantage of those opportunities will flourish. LL: How should Singapore position itself so that it can further establish and cement its reputation as an international legal centre? GH: We are seeing the emergence of Singapore as one of the world's leading international business cities and, to achieve and retain that position, the republic needs the best international business law firms and lawyers. General Advice LL: Before concluding this interview, what is one piece of advice (or an afterthought) which you hope to leave with our student readers? GH: As a student, your next move should be to work in an environment in which you are well trained, which stimulates you with the best work, which allows you to gain international experience and qualification and which will give you the opportunities to develop your talents to the full.

Geraint Hughes is the Managing Partner of Clifford Chance's Singapore office – one of the few foreign law practices in Singapore to hold a Qualifying Foreign Law Practice (QFLP) licence issued by the Ministry of Law. He specialises in the commercial, corporate and financing aspects of infrastructure including oil and gas, power, mining, water and transportation projects.

From The Editor

As I write the foreword for the 2011 edition of Lex Loci, I must say that the current and the immediate past year has been a most eventful and interesting one for Singapore. In the local context, Chief Justice Chan Sek Keong’s call for a ‘distinctively Singaporean’ jurisprudence is particularly noteworthy, and which is covered in greater depth in the following pages. Similarly, the issues raised during the recently concluded 16th Parliamentary General Elections have also allowed lawyers and law students alike to better understand societal concerns. As Prime Minister Lee Hsien Loong noted in his recent Cabinet Swearing-In speech, it is his government’s hope to create a fair and just society by engaging with all segments of society, inter alia, the young and old, students, workers and retirees. In the same spirit, the Editorial Committee believes that Lex Loci, being a student-run publication, is uniquely placed to participate in and support the government’s broader vision. This year we have included critiques and expositions of Singapore’s efforts to increase access to justice, as well as musings on the importance of initiating compulsory legal education courses at secondary education level. However, pro-bono initiatives are also an integral part of increasing access to justice, and its’ success requires the enthusiasm and active participation of those well-versed with the law. It is thus our wish that an insight into the work of the Advocates for International Development (A4ID) will serve as an inspiration for our fellow lawyers to leverage on their legal skills for the greater good. In this regard, I am indebted to Ms. Helen Mound, Head of Learning and Communications at A4ID, who has captured in words more insightful and elegant than mine the quintessential spirit of pro-bono work.

From The Editor

I also owe an irredeemable debt of gratitude to Mr. Tanguy Lim and Ms. Joanna Lee from the Law Society for their very comprehensive outline of the major probono initiatives in Singapore. My acknowledgments also go to the other professional contributors of Lex Loci 2011; they have delivered work of inestimable value, without which this magazine could not have appeared in its’ present form, and for which I cannot sufficiently express my thanks. I would particularly mention Mr. Alvin Chen (Chief Legal Officer of the Law Society) and Mr. Kelvin Tan (Director, Litigation and Dispute Resolution Department, Drew and Napier LLC), whose advice for prospective lawyers will certainly stand them in good stead as they prepare for the rigours of a legal career. I also owe much to Mr. Michael Hwang SC, Mr. Philip Jeyaretnam SC, Mr. Lok Vi Ming SC (please see the second issue of the UKSLSS e-mail newsletter), Dr. Wong Kien Keong and Mr. Tan Zhongshan for their most inspiring and perceptive interviews. We are certainly very fortunate to have been able to draw on their erudition and generosity. Others contributed in their own unique ways through the provision of images and illustrations for this year’s publication. I would therefore avail of this opportunity to place on record my heartfelt thanks to both Ben Heine and Foster & Partners for their gracious support, as well as to Steve and Sol from Roenin for creating a most visually exhilarating magazine.

Lex Loci 2011

If some of the resultant ideas appear precarious, I trust that Lex Loci will serve to generate debate that will lead to greater eventual clarity.

It would be churlish of me not to mention the considerable assistance which our sponsors have rendered us. Needless to say, monetary support is the cornerstone of every publication, and we hope that Lex Loci 2011 has fully repaid your abiding trust in us. To my student contributors and fellow editors, I am immensely thankful for your steadfast loyalty and patience. There is hardly a section of this magazine that does not reflect the debt of gratitude that I owe to them. They gave assistance in myriad guises: researching on the relevant laws, supplying case citations, reading proofs and listening to arguments and ideas. In particular, my Editorial team has resolved countless problems with great efficiency and good humour, and only they are privy to the more intricate details of Lex Loci 2011 and to the UKSLSS e-mail newsletters. Similarly, I would also like to acknowledge and thank this year’s Executive Committee for their unwavering support, and of whom I have grown to known and cherish as valued friends.

On a final note, I can only hope that you find this magazine an interesting and enjoyable read. If some of the resultant ideas appear precarious, I trust that Lex Loci will serve to generate debate that will lead to greater eventual clarity. I can do no better than cite the timeless words of Lord Chief Justice Holt in Coggs v Bernard: “I have said thus much in this case, because it is of great consequence that the law should be settled on this point; but I don’t know whether I may have settled it, or may not rather have unsettled it. But however that may happen, I have stirred these points which wiser heads in time may settle.” Lim Ren-En Chief Editor, Lex Loci July 2011

Also, if I have inadvertently forgotten to acknowledge anyone in this foreword, please also do accept my sincere thanks for your invaluable contributions.

Lex Loci 2011

From The Editor

Temasek takes stake in Olam

time and commercial acumen” Ezra Holdings is

“Excellent response

utmost . “they have

claiming more territory in the subsea market been shining” Hyflux-Mitsui to take water trust private Fortis makes counter offer for Parkway “dynamic,

strategist. forward-looking and

aggressive” ING, OCBC complete Asian private banking deal “sharp, detailed, knowledgeable and prompt advice” Mapletree Commercial Trust launches IPO “a fearsome reputation” Ban on 6 brokerages lifted “the level of service is high”

tenacious.

New KS Energy unit will be a regional giant Morgan Stanley, Mitsubishi UFJ to merge brokerage operations

“technically-brilliant, client-friendly and commercially very savvy”

Where it Matters

2010/2011

Singapore Law Firm of the Year Mergers & Acquisitions Law Firm of the Year Capital Markets Law Firm of the Year Banking & Finance Law Firm of the Year Insolvency & Restructuring Law Firm of the Year Corporate Governance Law Firm of the Year

STAMFORD LAW Level 27 Ocean Financial Centre 10 Collyer Quay +65 6389 3000 www.stamfordlaw.com.sg

Editorial Committee

Victoria Lee Soo Pin Art & Production Editor / Writer

Mildred Kwok Deputy Editor / Writer

Mansoor Amir, Deputy Editor / Writer

Lim Ren-En Chief Editor / Head Writer

Ang Ann Liang Features Editor / Writer

Joshua Rene Chief Sub-Editor / Writer

Victoria is the string that ties everything together. She is the creative artistic one who sets the art direction and layout of the entire magazine, doubling as pro bono photographer, crunching production numbers, pushing to meet print deadlines, and losing sleep. Besides these, she dabbles in music and songwriting, owns 3 synthesizers, 2 guitars, a piano; and devotes attention to the useful study of law when she finds time.

Apart from the mundane responsibilities of every deputy editor, Mildred’s sub role on the team is to inject a little humour every now and then to lighten up the atmosphere. When not bogged down by legal intricacies, she enjoys catching up on all the TV she misses out on during the academic year, and enjoying the leisured life that she feels every university student should be entitled to.”

Most would describe him as the tall, dark and handsome Indian with the rare naysayers only disputing the first two attributes. He has just survived his first year of law school and his hobbies include getting high on air. He sends his greetings to all on behalf of the lions and elephants of South Africa, where he is currently penning this. They all miss Ah Meng.

Ren-En is the head honcho of this magazine. He is glad to be able to now add ‘editing’ to his vast repertoire of skills (he counts ‘sleeping’ as one). He especially looks forward to crawling inside igloos next year and claiming his presents from a chummy bloke who is known to exude warmth and charm in equal measure.

Ann Liang is a law student in UCL. He serves this committee as its features editor, i.e the guy in charge of the rants by fellow students. He constantly spends his time assuaging himself that studying law will not sap him of all conscience and humanity, however much it may not be true. He wishes you an enjoyable read.

As Joshua’s diminutive stature might suggest, he is the youngest member of the editorial committee and the baby of the Magazine. He first decided to join the magazine when Naruto started going into fillers. His current ambitions include having SNSD perform at the next Singapore Legal Forum and obtaining the Mangekyo Sharingan.

Lex Loci 2011

Editorial Committee

President’s Message As the 2010/2011 academic calendar draws to an end, we can reflect and truly say that it has been a fruitful and fulfilling year for the UKSLSS. We have worked tirelessly towards providing a base of firm support for Singapore law students in the UK as well as being the point of first contact for law firms seeking to tap on such legal talent. With these aims in mind, events catered to the needs of firms and students were organized in both London as well as Singapore throughout this time We kicked off the academic year by hosting Chief Justice Chan Sek Keong and Justice VK Rajah in London, who addressed the audience on the importance of Singapore as a regional legal hub. In Easter, we welcomed Rajah & Tann LLP to London where they interviewed for training contracts and hosted students to a talk.

The publication was well received and its success affirms the efforts and standard of our editorial team who have endeavoured to produce well researched and good quality publications. We should also recognize them for their sterling work in the Lex Loci as well! The web site, which publishes updates as well as information on our activities, has also been given a refreshing new outlook, enabling better navigation and easier location of information. While the society goes about organizing activities and events to better prepare its members for the future, we are mindful that the world economy is not looking as good at the moment. How the events across Europe, the US and Asia will pan out in the coming year will

How the events across Europe, the US and Asia will pan out in the coming year will no doubt have a significant impact on the employment prospects of our members. Over the summer we initiated the start of the ‘Law in Singapore’ series of visits to the top firms in Singapore. This provided students the opportunity to have a better insight into the culture and workings of the local firms. The year’s activities will culminate in the Singapore Legal Forum 2011, where we have the honour of Mr. K Shanmugam, Minister for Law gracing the event as the Guest of Honour. The theme this year, ‘The Changing Legal Landscape: The Past, The Present and The Future’ seeks to provide you with insights into the different areas of the law through the decades and the challenges one might possibly face in the years to come. In the panel, we are privileged to have no less than some of the brightest legal minds and fore runners in their individual fields to engage you in thoughtful conversation. We are also pleased to inform you that for the first time, we have invited a top in-house counsel to share more on the profession itself.

no doubt have a significant impact on the employment prospects of our members. We are nonetheless confident that whatever the outcome, there will always be opportunities for law graduates from the United Kingdom, and it is our task as a society to ensure that we provide our members with the best opportunities. It has been our pleasure serving you this past year and I wish you all the best in your future endeavours, law related or otherwise. Sin Ming Wei President, UKSLSS July 2011

In line with our aim to update the students of the legal developments in Singapore, we started the newsletter, ’The UKSLSS Legal Update’ at the beginning of the year. 08

President’s Message

Lex Loci 2011

Executive Committee

From left to right: Melvin Lin, Vice-President (Treasurer) | Elton Tan, Vice-President (Secretary) | Amanda Lu, Vice-President (Marketing) Jasmine Tham, Vice-President (Public Relations) | Sin Ming Wei, President | Lim Ren-En, Vice-President (Editorial)

Lex Loci 2011

Executive Committee

Asian Presence. Global Reach. Shook Lin & Bok is one of Singapore’s leading law firms with a strong Asian presence and global reach. We have close to a century of rich legal heritage with a number of partners who are eminent lawyers in their respective areas of expertise. Our success lies in our team of well‐trained and experienced lawyers who are innovative and effective in solving complex and difficult legal issues. They enable us to provide personalised and value‐added legal services to our clients, comprising both local and international financial institutions and corporates.

Our Culture What makes Shook Lin & Bok an ideal place to train in is its open and friendly culture which encourages collegiality over hierarchy. To ensure that our lawyers are able to give of their best, we place a lot of emphasis on: • Conducive Work Environment • Challenging Career • Camaraderie • Mutual Respect • Teamwork • Work‐Life Balance

Your career in law, our commitment. Join us.

Shook Lin & Bok is a full‐service outfit with a forté in capital markets and restructuring and insolvency owing to the depth of expertise from its partners. Clients couldn't stop praising the firm and its attorneys. ‘Their service is consistently good,’ says one financial client. ‘Regardless of the deal size, I get the same level of service from them. They are good in providing necessary information so that we can make an informed decision. Efficiency comes from the fact that they know what we want before we say it.’ ‐ IFLR 1000 2011

Shook Lin & Bok LLP 1 Robinson Road #18‐00 AIA Tower Singapore 048542 slb@shooklin.com (general inquiry) or recruitment@shooklin.com (recruitment inquiry) For more information about the Firm, visit our website: www.shooklin.com

LexLoci 2011

Contents 4

From The Editor

Editorial Team

President’s Message

Executive Committee

14 To plea or not to plea efforts to create a non-adversarial criminal justice system

38 The value of law to society: an insight into the work of A4ID for progress and development The significant roles lawyers can actually play to aid the underprivileged and contribute to progress. 42 Legal Representatives in China – Seizing the opportunity! An insight into the legal mechanisms of Chinese businesses

Contents

Articles

21 The Criminal Procedure Code 2010 Alternative Sentencing and 47 Privacy and Expression Criminal Case Discovery Has the Human Rights Act 1998 improved the resolution of 24 Tips for Getting the Training conflicting claims between privacy Contract You Want (Article 8) and expression (Article 10)? 26 Interview with Philip Jeyaratnam S.C. 50 Harmonising Competition Law The Tiger and The Buffalo in ASEAN A regional competition law or 28 Access to justice in the Singapore separate national competition law? Legal System Taking the best step forwards. The right to access of justice in Singapore remains elusive, and is 54 Interview with becoming an increasing concern for Michael Hwang S.C. society, especially for the poor. Breaking Boundaries, Bridging Borders: The Work on An Interna32 Kids, Know Your Rights. tional Arbitrator One shouldn’t have to give up his legal rights over to fear.

Features

Interviews

18 The Role of Antecedents in Sentencing: A Critical Commentary from a Student’s Perspective

34 Fostering a Pro Bono Friendly Culture Singapore’s pro bono culture is varied and vibrant but there is definitely scope for expansion.

Lex Loci 2011

Contents

60 A Communion of Thoughts

77 Changes in the Singapore Legal Profession Is liberalisation the right strategy?

LexLoci 2011

56 Shaping the Alternative Dispute Resolution landscape in Singapore An alternative method of dispute resolution is fast taking root in Singaporeâ&#x20AC;&#x2122;s legal arena.

80 Interview with Tan Zhongshan Challenging Conventions, Redefining Expectations

62 Taylor Wessing Commercial Challenge Experience

82 Mooting Tips and Tricks

64 Interview with Dr Wong Kien Keong Reverse Engineering: Science Into Law

84 An Introduction to Cross Examination: Extracting the answers you want from your witness

66 Changes In The Singapore Legal Landscape: 2011 And Beyond Some advice for prospective lawyers to ride the waves of change and capitalise on the myriad of opportunities.

86 Jest-ice in Action

69 A Uniquely Singapore Law The building of a legal system independent from English law 72 Reconsiderations on Consideration The doctrine of consideration is outmoded, and ought to be re-examined, and if necessary, reformed.

Lex Loci 2011

Contents

Articles

Features

Interviews

75 Accelerated Students: An Untapped Resource? The next step in reform

To plea or not to plea, that is the question BY JOSHUA RENE, University College London

fforts to create a non-adversarial criminal justice system continue to accelerate, even after last year’s introduction of the Criminal Procedure Code (CPC) 2010. On the 5th of May 2011, at the Conference of Prosecutors General and Attorneys General of the ASEAN Countries and of China, Macau and HK, Attorney-General Mr Sundaresh Menon announced that his chambers is exploring the possibility of introducing plea-bargaining in Singapore. This would involve a study of various models practiced in overseas jurisdictions such as the United States, Australia and Hong Kong and the position in England. These remarks also echoed comments made by Chief Justice Chan Sek Kiong during his keynote ad-

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dress at the Subordinate Courts Workplan 2011 that the stage was slowly being set for plea-bargaining in the Singapore courts 1 . So what exactly is plea bargaining? According to Black Dictionary, it is a process whereby ‘the accused and prosecutor work out a mutually satisfactory disposition of a case. It usually involves the defendant pleading guilty to a lesser offence or to only some of a multi-count indictment in return for a lighter sentence than possible under the graver charge 2 .’ One example would be where the accused pleads guilty to dangerous driving instead of being prosecuted for driving under the influence of alcohol. As a result, he might receive a mere fine or lose his license

rather than risk a possible jail sentence. This process usually takes place pre-trial. Thus, if the accused does plead guilty, there is no need to set a trial date or to conduct a trial at all 3. Depending on the jurisdiction, judges may or may not preside over the plea bargaining process. Currently, plea bargaining in Singapore is an informal and ad hoc two-way practice between lawyers and prosecutors. The government has already introduced measures to accommodate this practice such as the voluntary Criminal Case Disclosure Conference under s160 of the CPC 2010 and Criminal Case Resolution4. These allow the defendant to better evaluate his decision to go to trial by weighing the evidence against him and the likely outcome. What is significant about the Attorney General’s comments is a desire to codify the practice because it could drastically increase the number of plea bargains, make the process fairer and also justiciable. In determining how plea-bargaining can be adapted to the Singapore jurisdiction, this article will examine the merits of the United States common law jurisdiction. The US has already codified the practice through Rule 11 of the Federal Rules of Criminal Procedure 5 and as of 2008, 95% of criminal cases were resolved through plea-bargaining, more so than any other country 6 . According to Justice Michael McSpadden, there are numerous benefits of the American plea bargaining system due to its efficiency in meting out justice 7 . Firstly, the courts save expenses and time in conducting a trial. Instead, these resources can be channeled to instances where the defendant’s culpability is really in doubt or where serious matters of law are at issue. In Singapore, this argument is strengthened by the fact that many cases conclude with the defendant pleading guilty on the first day of trial. This results in the days that had been scheduled for trial becoming ‘wasted’ since it is difficult to reschedule other trials on short notice.

Lex Loci 2011

Secondly, prosecutors avoid the risk of acquittal and the evidential concerns which might arise with time such as the collection of evidence and the clarity of witness testimony. The prosecutor might even strike a bargain to get the defendant to testify against another, which might help secure an additional conviction. Thirdly, the defendant himself avoids the costs of hiring an attorney for his trial and usually receives a less severe sentence than he might have if convicted. Fourthly, the reduction in sentences relieves pressure on prisons. Fifthly, the victim avoids the trauma of having to testify or await the outcome of a long-drawn trial, which can be more painful than the crime itself. Lastly, this efficiency does not compromise natural justice since plea bargaining is entirely voluntary. If a defendant continues to profess his innocence, he may still exercise his right to a fair trial. Nevertheless, there are numerous criticisms of the American system. Firstly, plea-bargaining undermines the effectiveness of the criminal law. The purpose of the criminal law is to clearly define criminal wrongdoings and prescribe punishments for them. This allows the individual to conduct his daily activities knowing the boundaries he cannot transcend. This is important for the principle of legality and the rule of law. If the individual does cross these boundaries, he must pay the necessary price. Otherwise, the criminal law becomes arbitrary and fails to serve a deterrent effect. Regarding arbitrariness, plea-bargaining creates inconsistency. Two defendants who have committed an identical crime may receive completely different punishments, depending on the bargains that they have struck with the prosecutor, if any at all. However, criminal convictions should depend on the circumstances of the crime itself and not on personal mitigation or favour. Unfortunately, there is no way to avoid arbitrariness without undermining plea-bargaining itself. Regarding deterrence, the US National

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Advisory Commission 1973 warned that plea-bargaining could become too lenient and fail to deter criminals from committing offences 8 . Firstly, in charge bargaining, a criminal is allowed to perpetuate a crime without being ascribed a label that appropriately condemns his criminal wrongdoing. Professor Alschuler gives the extreme example of the defendant who is charged with battery instead of rape. Secondly, in fact bargaining, a criminal has impunity for actions taken as part of a broader criminal enterprise. Thirdly, in

The prosecutor might even strike a bargain to get the defendant to testify against another, which might help secure an additional conviction. sentence bargaining, the consequence of the crime becomes less than that which the defendant was willing to risk at the time of commission of the crime. From a utilitarian perspective, however, the American system may actually enhance deterrence 9 . Given absolute prosecutorial discretion, criminal procedure works like a free market system. Prosecutors try to maximize deterrence but are constrained by resources. They cannot possibly take every case to trial. Thus, they must resort to plea-bargaining when the marginal costs of prosecution are greater than the marginal deterrence that would be served by conviction. In more practical terms, this still means that prosecutors will avoid using pleabargaining where the crime is severe and there is a need to send out a strong signal. They will be more willing to devote resources to convicting such a criminal. However, where the crime is trivial or

the intention lacking, prosecutors push for a plea-bargain. A trial would needlessly consume additional resources. The net effect is that prosecutors can use the same fixed resources to achieve a greater deterrent effect. This is of course conditional on prosecutors accurately gauging their decisions based on public interest and deterrence. Secondly, plea-bargaining can be coercive in nature. Aschulcher compares the process to medieval torture used to induce ‘voluntary confession’ 10. In both instances, illegitimate pressure may be used to induce a plea bargain. A rational defendant weighs the severity of the lesser charge against the maximum sentence he might receive if convicted of a more serious charge and the probability of conviction. This is known as a plea-trial differential. The higher the differential, the more likely it is for a defendant to plead guilty. Following Bordenkircher v Hazel 11, an American prosecutor is allowed to threaten a charge that is much higher than that which the defendant can realistically be convicted for. Since there is no duty of disclosure of prosecutorial evidence pre-trial, the defendant cannot accurately assess the position of the prosecutor. With exaggerated plea-trial differentials, the defendant can thus be easily coerced by prosecutors’ threats into pleading guilty. Fortunately, other common law jurisdictions have averted this problem through existing practices. In the UK, there is no absolute prosecutorial discretion. Prosecutors must follow the Crown Prosecution Service guidelines, and can only pursue a charge if there is sufficient evidence to create a ‘realistic prospect of conviction’ 12 . In contrast to US Department of Justice guidelines, which are advisory, these guidelines can form the basis of judicial review. Furthermore, in McKinnon 13, the English courts also suggested that where the plea-trial differential is too great, it would no longer be an encourag-

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ing but coercive factor in pleading guilty. This would make it unlawful (in a manner similar to undue influence or duress in contract law). In essence, this endorses Aschulcher’s idea of illegitimate pressure and marks a sharp distinction from Bradley v United States 14. In Singapore, this same problem is averted by transparency in the pre-trial process introduced by the Criminal Case Disclosure Conference. It requires the prosecutor to reveal all evidence at its disposal and by extension the strength of its case. Also, Association of Criminal Lawyers President, Subhas Anandan, has suggested that plea-bargaining be a three-way process involving a judge 15. This would give the defendant a better reassurance from a neutral third party and decision maker as to the likely outcome of his case. Furthermore, proper documentation of the plea-bargaining process subject to the scrutiny of the judge would prevent prosecutors from making unfounded threats. These measures would curb the potential excesses and coercive effects of prosecutorial discretion on plea bargaining by revealing the weaknesses of any outlandish charges. The more troubling concern is that innocent defendants may plead guilty. This could be a rational choice where the plea-trial differential is significant. Again, Alschuler gives the example of the rape defendant who accepted a chargebargain for simple battery to avoid the risk of trial, eventhough the chances of

conviction were extremely low 16. A more tragic example would be an innocent defendant who pleads guilty to manslaughter rather than first degree murder which would trigger the mandatory death penalty in Singapore. However, Church dismisses this concern with several counter-arguments 17. Firstly, the injustice of an innocent defendant pleading guilty to a lesser charge would still be less than the injustice of being convicted of a more serious charge at trial. Secondly, the problem lies not in plea-bargaining itself, but in the fact that the defendant wrongly misjudged his circumstances. Again, the solution is simply to make the defendant more aware of the case against him. Thirdly, studies have suggested that the pain of an innocent defendant having to go through a trial is more traumatic than the actual experience of being in prison 18 . Lastly, behavioral studies have shown that innocent defendants are nevertheless unlikely to plead guilty and would usually push for a trial, suggesting that this concern is merely apparent 19. Thirdly, the effects of plea-bargaining on the criminal justice system are distributive rather than quantitative. Pleabargaining is particularly attractive to defendants who cannot afford an attorney. Already, one in three defendants in the Singapore Criminal Courts have no lawyers. Contrastingly, wealthier defendants would be more reluctant to plead guilty, preferring to avoid conviction under any circumstances. As such, resources are being channeled away to determine the

Chief Justice Chan Sek Kiong, ‘The Subordinate Courts Workplan 2011, Engaging Communities, Serving Society: Keynote Address’ 2 Bryan A. Garner, editor, Black’s Law Dictionary 9th ed. (West Group, 2009) 3 Vijayan, K.C, ‘Trial run for three-way plea bargains’ Straits Times (27 February 2010) 4 Criminal Procedure Code 2010 s155-170 5 Federal Rules of Criminal Procedure 2010 Rule 11 6 Vamos, Nick ‘Please don’t call it “plea bargaining”’ [2009] CLR 617 7 ‘Interview Judge Michael Mc Spadden’ http://www.pbs.org/wgbh/pages/ frontline/shows/plea/interviews/mcspadden.html. Accessed: 17 June 2011 8 Vamos, Nick ‘Please don’t call it “plea bargaining”’ [2009] CLR 617 9 Riza, Limor, ‘Plea Bargaining and Prosecution’ [2009] European Association of Law and Economics Working Paper No. 013-2009 10 Alschuler, Albert W, ‘Plea-bargaining and its history’, (1979) Law & Soc. Rev., 13, 211- 245. 11 Bordenkircher v Hazel 434 US 3517 (1978) 12 Alschuler, Albert W, ‘The Changing Plea-bargaining Debate’, (1981) Cali 1

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culpability of a wealthy minority as in the notoriously expensive O.J. Simpson Case. The implication on natural justice is that money buys freedom. However, this problem does not arise from an inadequacy of plea-bargaining itself but rather an inadequacy in the provision of legal services. It is a simple fact that in the private sector there is a strong demand for the best legal services. Because supply is limited, the price of such services is high and hence accessible only to those who can afford them. As Justice McSpadden indicates, this problem can be averted through the provision of excellent legal services in the public sector 20. In Singapore, initiatives such as the introduction of HELP centres in 2010 to provide free legal services to those who can’t afford them, could allay concerns that plea-bargaining would be over-subscribed to by the poor. In conclusion, the main strength of the US plea bargaining system is clearly its efficiency, though arguably this would be likely of any plea bargaining system. Surprisingly, this very efficiency contributes to, rather than undermines deterrence and natural justice. The system’s downsides are its lack of consistency in application, its potential for coerciveness and its distributive effect on the exercise of justice. Nevertheless, this article has suggested that these concerns are more apparent than real and if a similar programme is introduced, the character of the Singapore legal system would help to avert most of the problems of the American system.

Law Rev., 69. 652-730. 13 McKinnon v The United States of America & Anorr [2008] UKHL 59 14 Bradley v United States 297 US 742 [1970]. 15 Vijayan, K.C. Feb 27 2010 ‘Trial run for three-way plea bargains’ Straits Times 16 Alschuler, Albert W, ‘The defense attorney’s role in plea-bargaining’, (1975) Yale L.J., 84, 1179-1315. 17 Church, Thomas W, ‘In defense of bargain justice’, (1979) Law & Soc. Rev., 13, 509-525 18 Feeley, Malcolm M, ‘The Process is the Punishment’, (1979) New York: Russell Sage Foundation 19 Bordens, Kenneth .S, ‘The effects of likelihood of conviction, threatened punishment, and assumed role on mock plea bargaining decisions’, (1984) Basic and Applied Soc. Psych. Rev, 5, 59-74. 20 ‘Interview Judge Michael McSpadden’ http://www.pbs.org/wgbh/pages/ frontline/shows/plea/interviews/mcspadden.html. Accessed: 17 June 2011

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The Role of Antecedents in Sentencing: A Critical Commentary from a Studentâ&#x20AC;&#x2122;s Perspective There is a need for calibrated consideration in taking previous criminal records into account for sentencing.

BY ANG ANN LIANG, University College London

Disclaimer: The writer is not and does not purport to be an expert on judging and sentencing. The writerâ&#x20AC;&#x2122;s comments hence should not constitute academic authority of any sort; he only has but an ardent interest in judging and the role of neutral, mitigating and aggravating factors in sentencing .

t is well entrenched in the jurisprudence of sentencing that the role of punishment meted out by the Courts should adhere closely to the following four principles: Prevention, Retribution, Deterrence (General and Specific) and Rehabilitation1 . In this article I will examine the role of antecedents in relation to the principles of Retribution, Specific Deterrence and Rehabilitation aforementioned, for these relate directly to the recidivism of a convicted person. In sentencing it is observed that the Judge takes into account the type and severity of the antecedents, as well as the length of time between its occurrence and the conviction in the present case. THE CURRENT STATE OF LAW WITH REGARD TO ANTECEDENTS The general rule with regard to antecedents is that its presence is an aggravating

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factor to be taken into account when sentencing; its absence, on the other hand, could be a mitigating one, subject to qualifiers of no. of charges, severity of crime, public policy etc. In the past the law is specific: antecedents only aggravate the seriousness of the crime if these are antecedents of the same crime previously committed by the accused person for which he is presently being tried. Hence, it is clear that a person tried under S67(1)(b) of the Road Traffic Act, if he is convicted and it is proven that he has had previous convictions under the same act, the said previous conviction should act to aggravate his sentence. The case of Sivalingam Sinnasamy v Public Prosecutor2 further acts to expand the use of antecedents. In his judgment then CJ Yong Pung How clarified that offences under similar headings, though under different sub-sections, can be con-

sidered similar antecedents. In holding so he appeared to have regard to the fact that the root mischief of both offences are materially similar. The above may all be very well, but what if the Judge is faced with an offender convicted of snatch-theft previously convicted of shop-lifting, or convicted of affray previously convicted of voluntarily causing hurt, or convicted of littering previously convicted of public urination etc. To what extent are offences sufficiently similar as to bring them within the ambit of the same category for the purposes of taking antecedents into account? Who indeed, is the Judge to decide which antecedents are material to the current crime and which are not? In the case of Tan Ngin Hai v Public Prosecutor3, then CJ Yong Pung How considered that dissimilar antecedents

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may be taken into account via considering the “totality of the evidence” and therefore inferring propensity towards crime. This landmark decision certainly breaks the boundaries previously limiting the consideration of antecedents, but it appears to be only employed under exceptional circumstances where the propensity to offend is adjudged to be high4. I seek here to study the grounds of and expand upon this development of principle.

he now voluntarily causes grievous hurt against another towards whom he also bears a grudge, with motive of revenge similar to that of the first instance. Should the shoplifting antecedent thereby be relevant in this instance? For the layperson, it must be. Taking into account deterrence and rehabilitation, clearly his motivation to seek out revenge or gratification pursuant to his grudge was not suppressed by the previous sentence.

The roots that seek to re-assert itself, as opposed to new roots arising, should, in my opinion, warrant a greater sentence. A NEW DEFINITION OF ANTECEDENTS?

Hence a stiffer one can arguably be called for, despite the dissimilarity of crimes.

The answer to the aforementioned is likely to differ between a lawyer, and a sociologist, criminologist or any expert in a related humanities field. The lawyer decides relevance of antecedents by reference to statute and comparison of provisions; the person not legally qualified (“layperson”) may, on the other hand, view antecedents as relevant those which are even remotely similar to the present crime, on the grounds of motive or obstinacy.

Consider next the case of a man similarly previously convicted and now charged with the same offence i.e shoplifting. What if, after having undergone sentence after his first conviction, that man truly repents (perhaps under the influence of religion which I have observed can be a life-changing influence on a person) and in his remorse he resolves to be a better person. Subsequently however, due to his prison sentence he is unable to find a job, and is driven by desperation to feed his family or loved ones, or is driven by compassion to steal from the rich to give to the poor.

To illustrate, consider the following example. A man who is previously convicted of shoplifting is charged in Court for voluntarily causing grievous hurt. It then turns out that the man was motivated by very similar desires/urges to commit the previous crime and the same crime. The said offender could have committed shoplifting in order to cause the shopkeeper, towards whom he nurses a grudge, some loss. For the same desire Lex Loci 2011

Should then his previous conviction count against him in sentencing for the current conviction due to uncanny similarity? His motives are, after all, different. The desire to misappropriate for his own benefit has been eradicated and the previous sentence has succeeded in its purposes, in its place a new, perhaps more benevolent, motive

has arisen. Would it be fair now to count his previous conviction against him for the present purposes of sentencing? If we were to examine this in light of the principles of deterrence, retribution and rehabilitation, it would appear prima facie to be unfair and, I venture to add, “useless”, to take his previous conviction as an aggravating factor, for it achieves nothing in relation to suppression of motives and desires that are so distinctly different. Similar arguments could perhaps apply to the consideration of timing in deciding relevance of an antecedent. As it stands, the further back in time the date of the antecedents, the less weight the Court will accord to the said antecedents. This is only a very rough guideline, and rightly so, for in my opinion the time difference between the date of commission of the current offence and the antecedent is but one of many factors a Judge should take into account when considering its relevance. To illustrate, consider a case of an offender who is convicted for a similar offence that he was previously convicted for 20 years ago. The time difference may be long, but different reasons, that in my opinion should result in very different outcomes, may explain this time gap.

One reason could be, as explained above, that the offender could have had a change of heart and the latter offence is committed for very different motives, in which case I would reiterate that, for reasons previously given, less weight should be accorded to the antecedent. The other could be that the offender has tried to suppress such criminal tendencies after his first conviction, and for a period of time has been successful, but then, because of peer influence, or because of illdiscipline (of which fault need not just be attributed to the convict) or for reasons yet unknown, relapsed and allowed himself to succumb to his criminal motives and desires yet again. Should not then, in the interests of deterrence, retribution and rehabilitation, the Court accord greater weight to his antecedent despite the fact that the offence was committed very long ago? In this circumstance it is not the offence but the very root of the offence itself,

i.e motivation and desire, that I humbly opine the Courts should seek to eradicate. The roots that seek to re-assert itself, as opposed to new roots arising, should, in my opinion, warrant a greater sentence. CONCLUSIONS In light of the above examples, I strongly advocate for an inclination of the law to examine motives and desires in considering relevance of antecedents. But I hasten to add in my advocacy that I am mindful of the constraints currently upon us. For one, the multitude of cases passing through the Courts which require a swift and decisive resolution cannot afford to be held up by drawn-out bickering over the above matters especially in cases where the dispute is so minute as to render it de-minimis to sentencing considerations. For another, current resources are unlikely to cater for such fine considerations in Court. For a third, it is acceptedly difficult, at times, to ascertain a person’s

motives and desires, short of inferences from actions and circumstances which are sometimes hardly accurate. Hence in my expressing thoughts otherwise I do include my reservations on its feasibility and probability. Nevertheless, the above is a consideration that I am hopeful might at least bear weight, no matter how little, on the minds of judges in meting out sentences especially in cases such as that of my hypothetical example.

Acknowledgements: The writer wishes to acknowledge his honour Chief District Judge Tan Siong Thye, her honours District Judge (“DJ”) Hamidah Ibrahim, DJ Thian Yee Sze, DJ Jasbendar Kaur and his honour DJ Victor Yeo for their invaluable and insightful comments which added depth and dimension to the article draft. The writer also thanks Ms Sharany Hasan, Ms Jane Lee and the Subordinate Courts for providing the conducive and inspiring environment to churn out this opinion.

KS Kow, Sentencing Principles in Singapore, (Academy Publishing 2007) [2001] 3 SLR 157 3 [2001] 3 SLR 161 4 See, for example, Roslan bin Abdul Rahman v PP [1999] 2 SLR 211 and PP v Chew Suang Heng [2001] 1 SLR 692, wherein the Court took little notice of dissimilar antecedents even though it could arguably, in my opinion, have been submitted that the said antecedents show a propensity towards crime. 1

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The Criminal Procedure Code 2010 Alternative Sentencing and Criminal Case Discovery BY VICTORIA LEE SOO PIN, University of Liverpool

he Criminal Procedure Code (Chapter 68, Revised Edition 1985)(“CPC”) was repealed on 2ndJanuary 2010 after an in-depth review involving representatives of relevant Government agencies, the Law Society, the Association of Criminal Lawyers of Singapore, academia and lawyers. In its place is the new Criminal Procedure Code 2010, Act 15 of 2010 (“CPC 2010”). As highlighted in the Law Society’s Report on the Draft Criminal Procedure Code Bill 2009(1), the changes sought to address the following (i) The Right to Counsel; (ii) The Recording and Admissibility of Statements; (iii) Discovery in Criminal Trials; (iv) Alternative Sentencing Options; and (v) Legal Professional Privilege: Search and Seizure This article will explore the effectiveness of the new provisions and the underlying debate; in particular Alternative Sentencing Options and Discovery in Criminal trials. Alternative Sentencing - Community Sentences and Orders

Previously the range of options available to magistrates and district judges to mete out community orders in place of the prescribed punishment for offences was limited. Against criminal offenders who have barely entered adulthood, or are elderly, or mentally disadvantaged, judges usually have no legal authority to mete out sentences other than the regular jail term or a fine, when in fact, other punishments may better serve the goals of restorative justice and rehabilitation1. For example, rehabilitative measures (such as a short detention order or mandatory treatment order) than

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(c) Nigel Young_Foster + Partners a hard term of jail with permanent records attached may well reduce the recidivism rates of young adult offenders, for they are arguably given a second chance. It is submitted that Community sentencing is hence indeed a bold step towards these ideals.

bility and (iv) the minor role the accused played reducing his culpability.2 In order to facilitate this increased discretion in sentencing, there is now a dedicated Community Court set up in the Subordinate Courts of Singapore to hear such cases. Criminal Case Discovery

New to the CPC 2010 are community sentences and orders, whereby a court can give a mandatory treatment order, a day reporting order, a community work order or a community service order or a short detention order. A community sentence consists of one or more community orders made by a court at the same court proceeding. Now with the revised CPC 2010, the scope of eligible offenders has widened beyond juveniles, first offenders and offenders with special mitigating needs. While the CPC 2010 does not specifically define the exact parameters of this scope, the courts may consider the current practice in the U.K. courts, which applies even to serious offences. There, Lord MacKay has stated that a community sentence may be passed when a judge considers four factors: (i) aggravation – where provocation was more severe than necessary (ii) mental illness or disability (iii) the youth or age of the offender, reducing his responsi-

Criminal Discovery is a process that allows the defence to gain access to documents that either support or undermine his case and determine what evidence the Prosecution may use against him. The Prosecution too may also call for documents to be inspected. However, the defendant may choose to withhold them due to legal privilege. Criminal Discovery ensures a fair and transparent trial process, by allowing the defendant to know the case against him and prepare his defence accordingly. This arguably has positive implications for natural justice. Nevertheless, there have been concerns about this process. In a civil context, disclosure has proven to be a very expensive and time consuming process, providing a great deal of room for tactical manoeuvers by litigants. For example, in the U.K., this process is often used by a party to intimidate the other side simply by the volume

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of requests for documents or by incidentally increasing the costs of litigation even before the hearing. Arguably, however, these concerns may not extend to criminal prosecution. Criminal prosecution is administered by the state prosecution chambers, which is not motivated by a ‘win-at-all costs’ attitude but a desire to dispense justice. Furthermore, the state prosecution chambers’ limited resources must be used judiciously. Secondly, it has been argued that Criminal Discovery of cases leads to a slowing down of cases due to the process itself and the plea-bargaining it entails. This represents unnecessary time and resources for an already overworked court system. Furthermore, the accused that are guilty now have time and knowledge at their disposal to craft more elaborate defences. Also, the benefits to natural justice would outweigh any detriment arising from an increased consumption of the court’s resources. With regards to empowering the accused, the prosecution too, has access to the accused’s documentation and it is a case of leveling the playing field. It has also been suggested that one method of achieving criminal conviction i.e. by exposing an inconsistent statement, will no longer be available to the prosecution following full disclosure of all statements, as the accused person can easily twist his story in Court to fit his statement which he would then have knowledge of. One however must bear in mind that in modern times, inconsistent statements are used alongside a variety of other methods, including forensics, which provide stronger and more incontrovertible proof of the accused’s involvement (or lack of it). It is submitted that criminal conviction by inconsistent statements alone is arguably unsafe due to natural defects of memory in the human mind over a long period. Further, it is submitted that the fast developing technologies employed in forensics should mitigate the consequences of increased criminal disclosure, in particular to the suggested higher propensity for criminals to take advantage of the system. Despite the positive implications of criminal discovery, the duty of disclosure was limited and uncertain under the old law. Section 58 of the repealed CPC, used in conjunction with other statutes and common law, was simply inadequate.

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© Victoria Lee Firstly, under the old Section 58(1) of the repealed CPC, the court was allowed to order the production of any document or thing that is necessary for the purposes of any investigation, inquiry, trial or other proceeding under the Criminal Procedure Code. Access to documentary evidence was thus determined by the court. The legal obligation for the prosecution was itself limited to providing the accused at least 7 days before the trial with the following: (a) charges he would be tried for, (b) a list of witnesses and (c) a verbal hint if the Prosecution was using statements during the trial. If the prosecution indicated that it would be using statements, then it was likely that it had an admission statement by the accused which would be highly damaging to the defence once admitted at trial. At trial, the defence would then challenge the admission on the grounds of threat, inducement or promise to the effect that the statement had not been voluntarily given. This would lead to a voir daire, or trial within a trial, held within the court. Secondly, the learned Judge Kan Ting Chiu stated3 that an accused has a legitimate interest to know and be reminded of what he has said in his statements, so that he could obtain proper advice thereon as to the course of action he should take, or he may wish to refer to them in his evidence. This, however, did not give the accused access to the entire document or to any other incriminating documents that the prosecution may have had.

For example, in sizeable offences, according to s.122(6), statement-taking is administered with a caution. The defence is allowed to get hold of this statement. However, a cautioned statement did not consist of the full long statement the accused gave to the Investigating or Recording Officer at investigation. If the accused claimed trial, the first time the court had sight of the accused’s confession or admission statements and other incriminating evidence would be there and then, admitted during the Prosecution’s case through the witness stand at trial, leaving the defence at a disadvantage without having had time to prepare. Finally, the learned Chief Justice Yong Pung-How, in DT v PP [2001] 3 SLR 587 had made the observation that the form of trial prescribed in the old CPC has never been to provide for any form of pre-trial or trial disclosure by the Prosecution. The strong legal support for this claim would form the basis of the prosecution’s denial of witness statements or exhibits and provided and left defence counsel seeking to obtain these documents at a dead end. As such, even the courts have acknowledged the inadequacy of the old laws. In Selvarajan James v PP [2000] 3 SLR 750, the learned Chief Justice Yong said that the duty of disclosure on the part of the Prosecution as provided for in the old Criminal Procedure Code is minimal. Significantly, he added that such a position “is not necessarily the most ideal.”

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The learned Chief Justice noted that it had been argued on numerous occasions that more and early disclosure on the part of the Prosecution is desirable to ensure that the accused knows the case he has to meet and as such would get a fairer deal. However, he asserted that it was for “Parliament to decide if it wants to enact these revisions when it updates the CPC and, until then, the court cannot direct the Prosecution to produce witnesses’ statements to the defence.” The revised CPC 2010 is precisely that piece of legislation that the learned Chief Justice was referring to. Criminal discovery is now possible, and Section 160 sets out matters in the new provisions of Criminal Case Disclosure Conference; (1) (a) the filing of the Case for the Prosecution and the Case for the Defence; (b) any issues of fact or law which are to be tried by the trial judge at the trial proper;

an accurate picture of the case against him and has a chance of a fairer trial. Secondly, it is clear from the language of s160, that this duty is not minimal and there are no circumstances mentioned where withholding evidence from the defence might be justifiable. It is submitted that the new Criminal Procedure Code 2010, while not quite addressing all concerns of the legal fraternity (e.g. video recording of defence statements), is a marked revision over the repealed CPC of 1985, and contains, among many improvements, new bold provisions for alternatives to sentencing, and the introduction of criminal case discovery, which is arguably the single greatest benefit to defendants charged with serious capital offences. With the CPC 2010, a more equitable distribution of justice is now made available to criminal defendants.

(c) the list of witnesses to be called by the parties to the trial; (d) the statements, documents or exhibits which are intended by the parties to the case to be admitted at the trial; and (e) the trial date. (2) The Magistrate or District Judge who presides over a criminal case disclosure conference must not make any order in relation to any matter referred to in subsection (1) in the absence of any party if the order is prejudicial to that party. (3) Where an accused claims trial, the Magistrate or District Judge who had presided over the criminal case disclosure conference in relation to the accused’s case must not conduct the trial. The changes in the law and its impact are easy to predict. Firstly, the prosecution is now bound to provide a list of witnesses, admission statements, documents and exhibits they intend to use in trial. On top of this, they must provide a copy of the actual evidence itself. The accused now has 1 2 3

Criminal prosecution is administered by the state prosecution chambers, which is not motivated by a ‘win-atall costs’ attitude but a desire to dispense justice.

Community Court Secretariat, Subordinate Courts, “Community Courts”, June 2009 Halsbury’s Laws of England 2006, Vol. 11(4) PP v Ng Beng Siang & ors [2003] 4 SLR 609

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Tips for Getting the Training Contract You Want By Kelvin Tan

Tell us your aspirations We would like to be part of your life, but what do you want to do with your life? There is no right or wrong answer. The profession is big enough for people with all kinds of aspirations. It’s fine if you want to go and live abroad at some point, do a post-graduate degree, act, sing, or open a cake shop. Better that you have an aspiration than not. © Ben Heine | www.benheine.com Grades matter Your grades in school show whether you have built a good foundation on the law, whether you have an aptitude for the law, and whether you have worked to do well in law school. … But grades aren’t everything On the other hand, grades are just part of your story. How you did in law school will not automatically translate to how you will do in practice. So many other aspects of your person help in telling an interviewer about how you will acclimatise to practice, and whether you are going to enjoy practice. Tell us about yourself We are interested in who you are - your personality, what you have done with yourself outside your law curriculum. This doesn’t just apply to activities related to law or practice. For example, if you play sports, this may give us some picture about whether you are a high-achiever, your commitment, if you are a team player, etc. So, whether your interests and activities are travelling or volunteering, martial arts or music, don’t be shy to tell us!

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Be prepared to talk about your strengths, and weaknesses We want to know what you think you are good at. Equally, do you know what you can do better at? No one started out perfect, and it’s better you know what you can work on. Get to know about your firm of choice From both your and the firms’ perspectives, it is important that you are making an informed choice. Firms would want you to know something of them, and that you think you would like to work there. We don’t need you to talk us up, but it’s important that you mean it when you say you want to join us. Do internships Internships are a fantastic way for you to experience first-hand a firm’s practice, the kind of work the firm does, the demands of practice, the firm’s culture and, generally, whether the firm is a good fit for you. You will learn more about a firm than a website or second-hand accounts can tell you. It also gives the firm the opportunity to meet you and get to know you. If you want to train in a specific area, take relevant elective modules If you are asking to train in an area of practice where there is a specific body of law, e.g. intellectual property, taking and doing well in relevant elective modules would show that you are interested, and

know what is involved, in that area of practice. Having said this, we know that you may not have had the opportunity to take modules of choice. There is no magic formula of law modules that is necessary for any area of practice. If you did not take specialist modules, it can be equally, if not more, useful that you demonstrate the willingness to work on developing your knowledge of that area of law when you come to practice. Give yourself time to make the right choice We understand that you are anxious to get a training contract at your firm of choice. However, it is important that you have given yourself the time to make the right choice for you – do you want to practise, what do you want to do in practice, and where do you want to practise? In your 3rd year in law school, you would get to do elective modules, which would give you some exposure to the different areas of practice. By then, you would have learned about the different firms and their practices, and perhaps have interned at one or more firms. All these will help you make what is an important decision. The firms that you apply to would also have a reasonable picture of how well you have done in law school. Write clearly and succinctly Your application is your first opportunity to make an impression. It shows how you think and how well you express yourself. Writing clearly and succinctly is important in legal writing, so demonstrate that you can do this. While every firm will want to know as much as possible about you, your achievements, and your aspirations, you can tell us all this without being verbose. A well thought-out and organised application is usually much more impressive than one which is overflowing with details.

Mr. Kelvin Tan is a Director in the Litigation and Dispute Resolution department at Drew and Napier LLC.

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The Singapore Business Environment

Singapore is widely regarded as a commercial focal point of Southeast Asia and the larger region. As Asia assumes a much more dominant role in driving the world economy, Singapore is looking to strengthen its position as a global legal hub, providing services that will benefit from and contribute to this process. A fast-growing, increasingly liberalised legal services sector A vibrant legal services sector is an economic engine in itself and a key enabler for growth in many other sectors of Singapore’s economy. For this reason, Singapore has continued to liberalise its legal services sector, despite the prevailing global economic conditions. As part of the process of deregulation, six Qualifying Foreign Law Practice (QFLP) licenses have been awarded to selected firms to allow them to practise in commercial areas of Singapore law. Of the six QFLP firms, four are ranked among the top 10 in the world in terms of revenue. Singapore will soon be reviewing the QFLP scheme with a view to further liberalisation. In addition, Singapore also recently enhanced its Joint Law Venture (JLV) scheme to allow JLVs to similarly practise Singapore law. Along with the QFLP scheme, the JLV programme has increased the range and supply of legal services in Singapore, and made the sector a more dynamic one. Singapore will also soon be launching the Foreign Practitioners Examination (FPE), designed to help meet growing industry demand for high-calibre lawyers. The FPE

will allow experienced foreign lawyers to practise Singapore law within selected areas and enhance the depth of expertise in the legal services sector. This strategy of liberalising has clearly borne fruit – the sector has, in the past few years, seen impressive growth. In addition to more than 800 local firms and over 3,800 local lawyers, Singapore now also hosts over 100 foreign law firms (more than twice the number in 2005), along with almost 1,000 foreign lawyers. Eight of the world’s top 10 law firms by revenue – firms like Clifford Chance, Linklaters and Latham & Watkins – have all set up local branches. In addition, the international profile of Singapore as a neutral centre for dispute resolution is growing fast. Legal and business communities across Asia are increasingly promoting the city-state as an ideal, one-stop venue for international arbitration. Living in Singapore Singapore’s modern cosmopolitan character, superb infrastructure, low crime rate and reasonable cost of living make it easy to understand why it is widely considered one of the best places in the world to live, work and play.

Interested in a legal career in Singapore? Sign up for the Careers@Singapore event, Developments in the Legal Landscape in Singapore, graced by Singapore’s Chief Justice Chan Sek Keong and Judge of Appeal, Justice V K Rajah. Date: Saturday, 22 October 2011 Time: 11am to 2pm Venue: Millennium Gloucester Hotel Sentosa Suite 4-18 Harrington Gardens London SW7 4LH For more information, visit www.contactsingapore.sg/ CareersSG/LegalServices/Oct2011.

For more information on the legal services sector in Singapore, please visit the Ministry of Law’s website at www.minlaw.gov.sg. For more information on working, investing and living in Singapore, please visit www.contactsingapore.sg. For career opportunities, please go to www.JobsAtSingapore.sg. For enquiries, please email london@contactsingapore.sg.

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The Tiger and The Buffalo By Joshua Rene, University College London

Mr Philip Jeyaretnam SC is the Managing Partner of Rodyk & Davidson LLP. Since graduating from Cambridge University in 1986 with First Class Honours, he has made a huge impact on the Singapore legal scene. In January 2003, at the young age of 38, he was appointed as Senior Counsel. From 2004-2007, he served as the President of the Singapore Law Society, the youngest ever. He is also the founding Chairman of the Society of Construction Law, a Fellow of the Singapore Institute of Arbitrators and chairman of Maxwell Chambers, Asiaâ&#x20AC;&#x2122;s premier integrated dispute resolution complex. Mr Jeyaretnam is a man who wears many hats. He is an award-winning writer, having received the National Arts Councilâ&#x20AC;&#x2122;s Award for Young Artists in 1993 among many others. Beyond the legal sector, Mr Jeyaretnam occupies a wide range of leadership positions. Most notably, he has served as a member of the Singapore Public Service Commission since November 2009. We are privileged to have Mr Jeyaretnam share his thoughts with us. Challenges facing the Singapore legal sector What challenges does the Singapore legal sector need to deal with in the coming years? Perhaps the most important challenge faced by the legal sector is how it is structured so as to meet the needs both of the ordinary man or woman and of business and finance. It is just as important that legal services for individuals, for example those involved in matrimonial litigation or facing criminal prosecution, remain affordable and of high quality as it is that legal services for business and finance keep pace with the increased sophistication of Singapore as a financial centre, as well as the growing market for cross-border legal services. As a profession, we need to ensure that there are sustainable and fulfilling careers for lawyers serving the domestic market and the concerns of the individual. The market will stimulate supply for sophisticated legal services, so it is in relation to meeting domestic everyday legal concerns that legal policy needs to actively intervene. In my view, legal aid funded from general government funds will have to be extended at some point to criminal defence, as well as expanded in the civil field. The capacity of the profession to meet such legal needs on an entirely pro bono basis is limited. Many regard your impact on the regulation of foreign firms as one of your key contributions as President of the Singapore Law Society. What do you think of the growing presence of foreign firms in the domestic legal sector? 26

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Legal practice has become increasingly cross-border and international. Singapore effectively has an open-door policy. It would be beneficial to the growth of pan-regional Asian firms if for example India, Malaysia and Indonesia were as open to Singapore law firms as we are to firms from those jurisdictions. Competition from foreign law firms will definitely increase, but at the same time the open door policy reaps a benefit in that the overall volume of legal work increases as a result. For example, the confidence that foreign lawyers have in Singapore is increased by their familiarity with our law and jurisdiction, and this in turn encourages them to choose Singapore as the seat for arbitrations and as the governing law for contracts. Leadership in the Singapore legal sector How may the Law Society contribute towards overcoming some of the challenges that you have highlighted? The Law Society is the key agency in relation to pro bono work, as it has operated the Criminal Legal Aid Scheme for the past 26 years. Its Pro Bono Office helps to coordinate profession-wide efforts, for example in relation to legal clinics. The Law Society should remain in the forefront of pro bono and legal aid efforts. Will the role of the Law Society itself change within the next ten years? It is important that the Law Society retains its role as the regulator of the profession. As foreign law firms acquire the right to practise Singapore law through Singapore-qualified lawyers who will also be subject to regulation by the Law Society, the Law Society will have to adapt to make sure that its regulatory regime remains relevant and effective. In addition, the ethical code must be updated so as to keep in step with developments elsewhere. Lex Loci 2011

Congratulations on your recent appointment as managing partner of Rodyk & Davidson LLP. How have some of the challenges you have highlighted influenced your vision and direction for the firm? Rodyk is first and foremost a commercial law firm. It has been located at the heart of Singapore’s commercial district, Raffles Place, for 150 years now. So, while we undoubtedly must play our part in relation to pro bono efforts, our principal focus is on the challenges flowing from the internationalisation of legal practice. Apart from making the most of cross-border opportunities and new areas for growth, we are committed to helping our young lawyers develop their careers, through training and the quality of work that they get to do. For example, a young litigator undertakes advocacy skills training at appropriate stages, and we make sure that he or she gets progressive opportunities to develop those skills in court. We also maintain what I believe to be a very important tradition, namely that practice trainees get rotated through the departments and so get exposed to all key areas of practice. With the needs and demands of legal practice expected to evolve and change over the years, it is best for a young lawyer to get some all-round training, rather than to immediately specialise. And turning to the profession as a whole, I strongly believe that legal practice in Singapore remains an excellent career choice. Blazing the trail ahead Are there any new areas of the legal sector that might gain prominence within the next ten years? Singapore is set for continued growth as a financial centre, including for wealth management. I expect the provision of legal services relating to banking and finance to be of critical importance in this growth. Rodyk is very well-positioned in this field of work. With regards to international arbitration, how can Singapore differentiate itself from other legal hubs in the region such as Hong Kong or Dubai? Singapore has many strengths on which it can build. Some are shared by Hong Kong and Dubai, such as convenient access by air and excellent communications infrastructure. But one strength is fairly unique to Singapore is our diversity, which can make people from many different parts of the world feel at home. For example, it is a lot easier to get good halal food, or good Indian vegetarian food here than in Hong Kong. But you also get better Chinese, Korean and Japanese food at reasonable prices here compared to Dubai. Don’t underestimate this as a factor in the choice of seat! Our Chief Justice Chan Sek Kiong recently announced that Singapore should develop its own jurisprudence. How do you think this can be done and how will it impact the Singapore legal sector? Singapore has been developing its own jurisprudence over the past few decades. But we are a small jurisdiction, so the number of cases coming before our Courts remains small compared to say London. The growing tendency to arbitrate instead of litigate also reduces the opportunity for judges to publicly pronounce on the law, as arbitration awards are by definition private and confidential. That is why the Chief Justice spoke about the need to make a conscious effort to develop our own jurisprudence. That is one reason why Singapore judgments have been getting longer! Lex Loci 2011

The tiger and the buffalo At the Distinguished Business Leaders Series, you compared the buffalo and the tiger. The buffalo, as an animal with herd instincts, is one that stays close to home and serves others. The tiger, as an animal with acute situational awareness, is one that is able to adapt to changing situations. You spoke about how important these two qualities were in your life. What other qualities should the lawyer of tomorrow possess? Loyalty to the client and defence of a client’s interests remain core values of the profession – hence the analogy with the buffalo. But lawyers also need to be able to strike out independently, and range widely, like a tiger. Both loyalty and independence require courage, professional courage. Let me explain this by telling the story of our founder, James Guthrie Davidson. There’s a story told by his protégé and friend, Frank Swettenham, the novelist, and future Governor of the Straits Settlements, who recounts that in 1871, Swettenham’s first year in Singapore, Davidson took him up-country to the then notoriously crime-ridden surrounds of Kuala Lumpur, in search of the girl his client was alleged to have kidnapped, and whom Davidson believed was being held by his client’s secret society rivals in Selangor. It was an exhausting and risky journey, but one that Davidson was ready to undertake to help his client. Professional courage takes many forms. Davidson’s was the courage of the intrepid, fearlessness – a quality that can aid a lawyer when he needs to do his outmost for a client, come what may. You also spoke about the need for continuous selfimprovement and the need to create your own niche. How do you hope to achieve this in the coming years? Skills can always be improved. Technical skills of course. But that’s not all. For a lawyer, it is important not just to be able to reason well, but also to understand emotions – how people feel. The same thing applies to leadership – knowing what the impact of what you say or do will be on morale or the readiness of others to follow you. Although I’ve held a number of leadership positions, such as being President of the Law Society, being managing partner of a large law firm like Rodyk poses its own set of challenges. I definitely need to keep learning – about myself and about others – as I serve Rodyk as its new leader.

Interviews

Access to justice in the Singapore Legal System The right to access of justice in Singapore remains elusive, and is becoming an increasing concern for society, especially for the poor. BY MILDRED KWOK, London School of Economics

he right of access to justice is a cornerstone of every developed legal system, and one that should be a constitutionally guaranteed right to all people. This right includes the right of an individual to access the courts and to have recourse to judicial remedies as well as legal representation should the need for any arise. In Singapore, there is a legal doctrine that an individual’s right of access to justice should not be denied. However, this writer avers that there are significant barriers preventing individuals from access to justice in Singapore, the most worrying of which is that legal rep-

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resentation is costly and that the legal aid framework in Singapore is still developing. In recent years, the judiciary and legal profession have recognized these shortcomings and have sought to remedy the situation so as to achieve greater access to justice, especially for the poor.

NATURE OF THE RIGHT TO ACCESS TO JUSTICE IN SINGAPORE The tension between an individual’s right of access to justice and the pragmatic nature of Singaporean society is one that the Singapore judiciary has been trying

hard to manage. Firstly, the right of access to justice is such that the common law has had to define and develop. Singapore’s judiciary however, has had mixed success in both defining the scope of the right and in developing it. The early Privy Council case of Ong Ah Chuan v Public Prosecutor 1 ruled that the right of access to justice was automatically incorporated in any natural system of the rule of law. However, this liberal approach soon gave way to a ‘more utilitarian and pragmatic approach to rights’ 2, which entailed that the right was by no means unfettered, and that it was to be balanced against other

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Of these, it seems that rising costs is perhaps the most insurmountable and intractable barrier, since it is the barrier over which the judiciary has the least control over.

concerns of national importance, namely that of economic and public interests, which formed the core of national priorities in recent history. BARRIERS TO ACCESS TO JUSTICE In Singapore, the barriers that impede an individual’s right of access to justice can be distilled down to three main obstacles: the rising costs of legal representation, the availability of legal representation, and the underdeveloped legal aid scheme. Of these, it seems that rising costs is perhaps the most insurmountable and intractable barrier, since it is the barrier over which the judiciary has the least control over. It should come as no surprise to anyone that legal representation fees in Singapore are high, and show no signs of coming down. Often, many are deterred from seeking legal help because they simply cannot afford it. Given the intricacies of law, it presents significant difficulties for a normal individual to be able to have the full benefits of access to justice without the help of a lawyer. Most would not know how to

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argue their case effectively even if they had access to the courts, and many would simply have their cases thrown out for failing to meet the administrative procedural requirements of the legal process. As Hwang J.C commented in the case of Kok Seng Chong v. Bukit Turf Club 3, ‘the right to be heard can be a meaningless right if exercised by a person who is unable in the circumstances to present his case effectively by himself,’ and the high costs of legal representation further entrenches this. Many are denied true access to justice because they cannot afford to hire a lawyer. This problem is exacerbated by the fact that often, it is the poor who require legal help the most, given that there is a statistical link between poverty and higher crime rates in all societies. The less well-off are thus further denied the right of access to justice because they have no means by which to pay for legal representation. This barrier to access to justice is increasingly worrying given that legal fees are not likely to decrease, and that the judiciary has limited power to influence how much lawyers charge. Legal fees are affected by market forces, and given that the government has not chosen to regulate the legal private sector, there is little to be done unless the sector itself decides to implement differentiated pricing schemes or to engage in more pro bono work in order to provide greater access to justice for the poor. Currently, it seems that lawyers are leaning more towards the pro bono route as opposed to lowering fees. Most law firms have a pro bono programme in place, with lawyers committing to either providing legal advice for free or to handling cases free of charge. It is hoped that with the development and flourishing of a pro bono culture within the Singapore legal sector it will help to alleviate the problem of reduced access to justice among the poor. The second barrier to access to justice is

closely linked with the first. The government’s apparatus for dealing with the lack of access to justice among the poor, namely the legal aid scheme, can certainly be improved. In particular, it is submitted that more resources should be allocated to deal with the demand for legal representation among the underprivileged. Legal aid is an integral pillar to facilitate access to justice in any legal system, as theoretically it would help to ensure that one would not be denied legal representation just because he could not afford it. The problem with Singapore’s legal aid scheme however, is that the criteria to be eligible for legal aid is far too stringent, thus disqualifying many who may marginally fail to meet the criteria, but who nevertheless are unable to afford to pay for a lawyer, and are thus denied access to justice. Currently, under the Singapore Legal Aid and Advice Act, there are stringent tests for disposable income and a means test that applicants have to fulfill before being granted legal aid. However, the strict tests means that only a small proportion of those in need will be able to meet the criteria. Clearly, of all those who require legal aid, not all will receive it, and this means that the barrier to access to justice still remains solidly in place. There have been calls in Parliament for the government to increase legal aid in 2001 4, but as of now, the legal aid scheme remains ill-equipped to ensure greater access to justice. The third barrier impeding access to justice in Singapore would be the availability of legal representation to those who may require it. Currently, while Singapore does recognize the individual’s right to legal representation, it is, like the right of access to justice, not an absolute right. Singapore also recognizes that an arrested person has the right to be counseled by a lawyer within a reasonable period of time. Article 9(5) of the Singapore Constitution and Section 36 of the Singapore Criminal Procedure Code (Act 593) stipulates that a reasonable period of time would be 48

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hours after the arrest. However, in the case of Jasbir Singh v Public Prosecutor5, it was held that two weeks was a reasonable period of time based on the facts of the case. It is thus evident that the judiciary takes a rather liberal view towards interpreting this right, allowing each case to turn on its own facts rather than affirm a common definition of a “reasonable period”. This in effect impedes a person’s right of access to justice, as it allows for the possibility that a person may not have access to legal counsel for extended periods of time after being arrested, and that this lack of access may be deemed to be “reasonable” by the courts. Also, the nature and scope of this right is limited. According to Mohamed Ali Abdullah v. Public Prosecutor 6, ‘it does not necessarily follow… that the trial of an accused person is vitiated unless he is represented by counsel.’ 7 An arrested individual does not even need to be told that he is entitled to a lawyer. It is submitted that the right of access to justice is thus compromised. THE FUTURE OF THE RIGHT OF ACCESS TO JUSTICE Currently, the state of right of access to justice in Singapore could do with some improvement. While there is a commitment to ensuring access to justice, the fact remains that rather substantial barriers to this right still remain, and not all

One should not be denied legal representation just because he could not afford it. may be within the power of the judiciary to remove. However, there seems to be hope that Singapore’s legal regime will gradually move towards a new era whereby there would be a greater emphasis on eradicating the barriers to access to justice. There has been a renewed commitment towards the “fair administration of justice” 8, which suggests a move towards a new fairnessbased approach to be taken by the courts. Perhaps with this new focus on fairness, Singapore’s legal system will allow for greater access to justice as it continues to maintain public service excellence. While the judiciary and the government can definitely improve an individual’s access to legal representation and revamp the legal aid system so as to ensure that more needy individuals are able to get the

[1981] 1 MLJ 64 Gary K Y Chan, “The Right of Access to Justice: Judicial Discourse in Singapore and Malaysia,” Asian Journal of Comparative Law 2.1 (2007): 42 3 [1993] 2 SLR 388 4 Singapore Parliamentary Debates, Sitting Date 13 March 2003, Vol. 76, Cols. 698-701; and Parliamentary Debates, Sitting Date 18 October 2005, Col. 1653 5 [1994] 2 SLR 18 6 [1980] 2 MLJ 201 7 Gary K Y Chan, “The Right of Access to Justice: Judicial Discourse in Singa1

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legal representation they need, they still remain largely powerless to deal with what may be the greatest barrier to access to justice – that of the ever-increasing legal fees. As regulating the fees of the legal industry seems out of the question, perhaps the only feasible solution is for the government to encourage more lawyers to do pro bono work. The right of access to justice is a cornerstone of every developed legal system, and a right that should not merely be one that is devoid of any true substance. It is even sadder that a seemingly insurmountable obstacle to access to justice is the cost of legal representation. Perhaps in the foreseeable future, with lawyers becoming more aware of their social responsibility, the culture of pro bono will flourish, and greater access to justice be achieved in Singapore.

pore and Malaysia,” Asian Journal of Comparative Law 2.1 (2007): 42 8 “Welcome Reference for the Chief Justice – Response by the Honourable the Chief Justice Chan Sek Keong” <http://www.supcourt.gov.sg> Accessed 22 April 2006, at paras. 11-13

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                             

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 

Kids, Know Your Rights. One shouldn’t have to give up his legal rights over to fear. BY RYAN LIM, Oxford University

hat would you do if your employer made sexist comments about you at work? Or if you suffered injury due to a dodgy doctor? Or if you felt you were unfairly treated by the police?

For many, seeking redress for their problems is a difficult, confusing and tiresome process. In the absence of any formal legal education, many may not even know of their rights at all. Some may want to seek help, but professional advice is expensive, legal aid is limited and other sources of information may be hard to come by, especially if the problem is in a specialist area or if the individual’s first language is not English. If all else fails, they might resort to navigating the legal labyrinth alone, settling for a less-than-satisfactory outcome, or they might just give up. Justice simply isn’t worth the hassle. The English and Welsh Civil and Social Justice Survey (CSJS), conducted annually since 2001 aims to find out what steps individuals take in response to a variety of problems, including personal injury, debt and housing issues. It is startling that only about half the respondents obtained advice, with 33.7% of respondents choosing to handle the problem alone, and with 9.4% choos-

Public legal education is one of the ways to improve this situation. 32

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Don’t be legally blind. ing to do nothing. Further, 65% of “main survey” respondents confessed they did not know of their rights at the time of the problem; this had a negative impact on the likelihood of success for the large proportion who chose to handle problems by themselves.

avoid and solve problems.

Finally, it should be noted that more than 20% of respondents chose inaction when faced with a discrimination, clinical negligence or police treatment problem.

Finally, a better understanding of the democratic process would empower citizens to better hold the government accountable through legal means and encourage participation in development of future laws.

Both the Rule of Law and public confidence in the law are at stake here. What use is a fair and open justice system if access to justice is limited by the individual’s capability to make an informed decision, or if he feels any action would not make a difference anyway? Public legal education is one of the ways to improve this situation. By making sure citizens are aware of their rights and the avenues of help available to them, individuals can better anticipate,

Just knowing they have a protected legal right may give individuals courage to take action, rather than being resigned to an outcome or scared to do anything.

I propose that we start in schools. If sex is important enough to educate 16-yearold kids about then I see no reason why law (which is equally stimulating and pervasive) should not receive the same treatment. A short practical course in law, perhaps two or three days, should be made compulsory for students at a Secondary 4 level. As part of the course, they would be

Lex Loci 2011

introduced to the main areas of law (tort, contract, constitutional, land and equity) and the basic principles behind them. There would be a strong focus on the problem-solving facet of the law, using real-world examples to illustrate the potential avenues of compensation available (“Raymond! Stop poking Roberta, that’s battery and she can sue you for damages!”). Students would also learn about the court process, its suitability, the limits on government powers and the structure of the constitution. Of course, there is plenty of room for discussion of contentious legal issues such as human rights, death penalty and s 377A. Costs of implementation would be limited due to the short duration of the programme. Making legal education compulsory at schools would also mean disabled students and students from poor backgrounds could be given extra help and support where required. These disadvantaged groups are exactly the most vulnerable.

This course is also not a panacea to the issues I raised at the outset. Availability of information and free legal help to the public must also be improved. There is also a need for further local research mirroring the CSJS to assess levels of access to justice in Singapore. But what this course can offer is a firm and useful foundation of basic knowledge about the legal system, which may be built upon by other continuing public education initiatives in the future.

Let’s hope our kids know their rights.

There would be a strong focus on the problemsolving facet of the law, using realworld examples to illustrate the potential avenues of compensation available. “Raymond! Stop poking Roberta, that’s battery and she can sue you for damages!”

I am not proposing that this course churn out mini-lawyers who will come home in wig and gown to advise their parents. The limits of what this course can teach must be recognised from the outset, given the age and maturity of the students taught and the relevance law has to their lives.

Lex Loci 2011

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Fostering a Pro Bono Friendly Culture Singapore’s pro bono culture is varied and vibrant but there is definitely scope for expansion. BY LIM TANGUY, Director of Pro Bono Services, Law Society of Singapore | JOANNA LEE

n important part of the mission of the Law Society of Singapore is to serve the community by facilitating access to justice. The Law Society of Singapore actively promotes pro bono work to address the legal needs of those who cannot afford legal services. Over the years, it has initiated and implemented various pro bono schemes to offer legal assistance to the needy. The Law Society’s Pro Bono Initiatives concentrate on 3 main strategic areas of development and growth. The first area

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is in running and developing programmes to serve the community, especially in areas where there is a dearth of legal help. The second area is volunteer recruitment and mobilisation and the third area is coordination with other agencies in the legal landscape to ensure synergy and an integrated approach. In 2006, the Law Society of Singapore established a Legal Aid Review Committee to undertake a comprehensive review of the provision of legal aid in Singapore. A number of key recommendations were made in the report, chief among which was a pledge by every lawyer of 25 hours

per year towards doing pro bono work and the establishment of a pro bono services office to coordinate all pro bono initiatives of the Law Society of Singapore. In 2007, the Law Society of Singapore adopted the key recommendations of its Legal Aid Review Committee. With over 3,500 Singapore lawyers, the 25 hour pledge translates into a potential bank of 87, 500 pro bono hours per year. On 1 August 2007, the Law Society established the Pro Bono Services Office with the objective of managing all of the Society’s pro bono initiatives and seeking ways to draw on and invest the potential bank of 87, 500

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volunteer hours. The Pro Bono Services Office was also registered as a Charity known as the Law Society’s Pro Bono and Learning Support Services. Since inception, the Law Society’s Pro Bono Services Initiative has been supported by the Ministry of Law, the Singapore Academy of Law, the Subordinate Courts, the Board of Legal Education and partners in the community that share our vision of access to justice for all. In 2009, the Pro Bono Services Initiative was awarded a grant from the National Volunteer and Philanthropy Centre. Currently the Pro Bono Services Office runs 3 categories of programmes to serve the community: (1) Programmes for individuals, (2) Programmes for community serving organizations and (3) Programmes for the community at large. Programmes for individuals consist of the Community Legal Clinic, the Criminal Legal Aid Scheme and the Ad Hoc Pro Bono Referral Scheme. The Community Legal Clinic offers free basic legal advice to Singaporeans/ Permanent Residents who are facing a legal issue on personal matters and do not have access to legal advice or representation. The Criminal Legal Aid Scheme offers legal representation for accused persons regardless of nationality, who claim trial for certain criminal offences and who do not have the means to pay for a lawyer. The Ad Hoc Pro Bono Referral Scheme offers legal representation for accused person with exceptional circumstances and who do not meet the criteria for existing legal aid schemes but nonetheless are in urgent need. Needy applicants at the Pro Bono Services Office are offered alternate legal clinic options through collaborative efforts between the Law Society Pro Bono Services and the Subordinate Courts. Currently, the Pro Bono Services Office supports the Subordinate Courts Accused in Person

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The Pro Bono Services Office has also started to support the Supreme Court Legal Aid Scheme for Criminal Offences “LASCO” with volunteer administration’.

Criminal Legal Clinics. By the 4th quarter of 2011, the Pro Bono Services Office will support the Subordinate Courts on 2 more legal clinics, the Family Court Legal Clinics and the Criminal Defence Guidance Legal Clinics. Providing legal assistance to charities and voluntary welfare organizations is a topdown approach to pro bono work in the community. Recognizing that community serving organizations are often run on limited resources and are unable to afford legal consultation and necessary representation, the Pro Bono Services Office administers 2 legal assistance schemes for community serving organizations: the Community Organization Legal Clinic and Project Law Help.

mercial legal assistance. Legal assistance rendered under Project Law Help is more in depth than that under the Community Organization Legal Clinic. To continue to build available legal assistance resources for community serving organizations, the Law Society of Singapore has recently developed a legal information portal for charities, non-profit organizations, social enterprises and voluntary welfare organizations. The portal scheduled to be launched in the latter half of 2011, will provide first level information on the various laws and compliance requirements for running a charity or a non-profit organization and complements the Community Organization Legal Clinics in providing legal information and support to the non-profit sector.

The Community Organization Legal Clinic offers free basic legal advice on operational issues for charities, voluntary welfare organizations, non-profit organizations and social enterprises in Singapore that have an objective to meet community concerns or needs. Project Law Help assists charities, voluntary welfare organizations, non-profit organizations and social enterprises in Singapore by matching eligible organizations with a volunteer law practice that will provide pro bono non-litigation com-

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At the community at large level, the Pro Bono Services Office supports Law Awareness, a public education initiative to raise public awareness of the law via public education seminars, exhibitions and through the publication of educational information. Biannually, the Law Society’s Law Awareness Committee launches a new public education initiative. For 2011, Law Awareness has been working on “Law Cares”, a project which aims to raise awareness of eldercare related legal matters as well as on legal matters that concern death. Concurrently, “Law Cares” will also seek to establish a platform to collate research on the common types of legal issues that the elderly face and connect volunteer lawyers and law students with voluntary welfare organizations that provide elderly care in the interest of fostering pro bono collaboration. Striving for synergy and an integrated approach to pro bono within the legal landscape is one of the main areas of focus of the Pro Bono Services Office. The Pro Bono Services Office has developed systems and procedures for the running of pro bono programmes. Systems for program administration, volunteer mobilization and volunteer support materials are a valuable resource for other agencies seeking to start or develop their pro bono programmes. The Pro Bono Services Office gives ready access to its resources to other agencies administering pro bono programmes. In addition, the Pro Bono Services Office assists these agencies with volunteer recruitment by publicizing pro bono opportunities with these agencies to Law Society members. An example of synergy at work in the legal community is the establishment of the Joint International Pro Bono Committee. The Joint International Pro Bono Committee is an initiative of a group of international and Singapore law practices with the support of the Law Society of Singapore.

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“Law Cares” will also seek to establish a platform to collate research on the common types of legal issues that the elderly face. The purpose of the committee is to match interested Singapore and international law practices with cross-border pro bono opportunities involving economic and social development in emerging markets. Law students from the National University of Singapore Pro Bono Group and the Singapore Management University Pro Bono Club support the Committee’s work by providing research and paralegal support. At the judicial level, the Pro Bono Services Office acts as a coordinating agency for the Small Claims Tribunal Volunteer Referee Scheme which trains and gazettes volunteer lawyers as volunteer referees on an annual basis. The Pro Bono Services Office has also started to support the Supreme Court Legal Aid Scheme for Criminal Offences (“LASCO”) with volunteer administration. Recruiting and mobilizing volunteers for pro bono initiatives is an ongoing effort at the Law Society of Singapore. The Pro Bono Services Office supports its volunteers, both lawyers and law students, through programmes and with the overarching views of empowering our volunteers and making the volunteer experience as seamless as possible.

For volunteer lawyers, the Pro Bono Services Office currently has 5 supporting schemes in place. Firstly, there is the Ad Hoc Pro Bono Assessment Scheme (APA) which assists practitioners and firms who wish to undertake pro bono work for needy persons on an ad hoc basis. Secondly, the Mentor/ Specialist Resource programme, which provides mentorship for new volunteers and a specialist resource scheme for queries by volunteers on practice areas. Thirdly, there is the Knowledge Database Contributor scheme which provides paralegal support and information resources for volunteers or pro bono initiatives. The fourth scheme in place is the Volunteer Initiative Support scheme, which assists practitioners undertaking similar pro bono work to form volunteer groups and build capacity. And lastly, the Pro Bono Services Office also runs the Social Service Agency Referral scheme because we have come to understand that practitioners often want to do more for dysfunctional pro bono clients. Collaboration with law schools affords opportunities for the Pro Bono Services Office to participate in the development of

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legal talent from the undergraduate level. The Office runs 3 volunteer opportunity programmes for students of the law. At the Community Legal Clinic, students can apply to provide administrative and paralegal support. Law students can also apply to provide paralegal support to volunteer lawyers working pro bono on criminal trials. For law students seeking vacation attachments, the Pro Bono Services Office also offers a 2 week volunteer vacation attachment allowing students to learn and assist on the legal assistance schemes administered by the Office. To enhance volunteer recruitment and mobilization, the Law Society of Singapore is working on creating a website portal for pro bono volunteers that will provide long-term to one off volunteer opportunities through the Law Society or other pro bono service organizations.

volunteers and the organic development of initiatives to meet needs/gaps in the legal assistance framework. In addition, to better monitor the pro bono efforts of volunteer lawyers and obtain fuller information on the pro bono commitment of Law Society members, a non-mandatory section in the practising certificate application form now requests practitioners to provide information on their pro bono involvement. The Pro Bono Services Office endeavours to foster a pro bono friendly culture within Singaporeâ&#x20AC;&#x2122;s legal landscape. Looking to the future, the Pro Bono Services Office will continue to strive to encourage pro bono friendly environments for volunteer lawyers to do pro bono work, especially at the level of law firms.

Collaboration with law schools affords opportunities for the Pro Bono Services Office to participate in the development of legal talent from the undergraduate level.

The portal will also facilitate volunteer networking, the transfer and dissemination of information and ideas among

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The value of law to society: an insight into the work of A4ID for progress and development We are privileged to have MS HELEN MOULD of the Advocates for International Development (A4ID) share with us the goals of the organisation as well as the significant roles lawyers can actually play to aid the underprivileged and contribute to progress.

s I write this article an estimated 10 million people across East Africa are facing acute food shortages as a result of the worst drought in the region for 60 years. A famine has already been declared in southern Somalia, and many other regions are teetering on the brink. According to the UN in some of the worst affected areas around half the population are malnourished. Faced with this kind of humanitarian disaster, many people begin to question what they can do. And that includes lawyers.

In 2005 when the world was still coming to terms with the devastation of the Asian tsunami a group of lawyers, shocked by what they had seen, came together with Oxfam to try and find a way that they could use their skills to improve the lives of some of the worldâ&#x20AC;&#x2122;s most vulnerable people. And so Advocates for International Development (A4ID) was born. In an emergency situation like the one facing East Africa right now what people need are food, clean water, healthcare and where they have had to flee their homes, shelter. But the law has a crucial role to play in helping to protect those whose lives are lived in the shadow of poverty and ensuring that development really does work. In may not be an emergency intervention, but it can aid long-term solutions. This is why A4ID exists. 38

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ÂŠ Ben Heine | www.benheine.com Unequal access to legal expertise acts as a barrier to development. But through our innovative pro-bono broker service we are able to ensure that all these development organisations are able to access free legal advice and support. A4ID brings a global network of more than 30,000 lawyers together with over 300 international development organisations ranging from large NGOs such as Oxfam and Christian Aid, to smaller

community-based organisations and civil society groups. The aim of this is broadly two-fold; to increase the effectiveness and efficiency of the development organisationsâ&#x20AC;&#x2122; work, and to help progress towards reaching the Millennium Development Goals. The Millennium Development Goals (MDGs) were agreed by world leaders at the UN Millennium Summit in 2000. Lex Loci 2011

They are specific targets for reducing poverty, improving access to education, promoting gender equality, reducing child and maternal mortality, combating HIV and ensuring environmental sustainability by 2015.

partners also influence key policy decisions made by developing country governments, through advice on trade negotiations, human rights, anti-discrimination laws, fair trade, corruption and rule of law, to name a few.

Progress is being made towards the MDGs, but it is uneven and slow. A large majority of nations will only be able to achieve the MDGs by 2015 if they get substantial support – advocacy, expertise and resources - from other countries. The legal profession has a lot to contribute to helping the international community meet these aims.

The story of 73-year-old Nyamizi Bundala from Tanzania highlights the type of issue our development partners are working to tackle, and the impact our legal partners can make.

One simple problem is that development organisations often cannot afford legal advice, or don’t know how to go about getting it. Our lawyers help them in a variety of ways that improve the way they run, advising on areas such as corporate governance, contracting, intellectual property and business modelling. This may seem very far removed from impacting on the lives of those living in poverty but the better run and better organised a development organisation is, the more effectively and efficiently they will be able to deliver assistance to those in need. In an age of ever reducing aid budgets where every penny counts, this is extremely important. But we also look strategically at the role that the law can play and believe that it can, and should, be a tool for development and not a barrier. This is why our pro-bono projects and our awareness raising work bring the legal and development sectors together to find new ways in which the law can contribute to sustainable development. In practical terms this means that we provide development organisations with lawyers who can assist them to empower local communities, influence legislation and protect rights by providing high quality legal advice and research. Our legal

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A few years ago, after her husband passed away, Nyamizi was accused of using witchcraft to kill a neighbour’s child who had died from disease. A threatening letter told her to leave her village; she took it to the local court but her neighbour denied sending it and the court did nothing. A while later, when she was returning home at night, somebody attacked Nyamizi with a machete, slashing her head and cutting off her arm. Fortunately, she recovered in hospital, but her attacker was never brought to justice. The first time Nyamizi went to court, the judge did not turn up; the second time, she was told that the case had already been heard and she had lost.

While this work may not be able to help those who are suffering in East Africa, it can help to ensure that individuals living in poverty are able to access basic services such as education, healthcare and clean water, and to improve their lives by protecting their rights.

“All my efforts ended and I have never been back in court,” said Nyamizi. “There is no justice. I survive on my own ability. I didn’t get justice because I couldn’t pay for it. No-one takes action for those who are poor.” In many countries in Africa and Asia belief in witchcraft is widespread. Elderly, disabled and marginalised people are often accused of witchcraft as scapegoats for communities’ misfortunes, or are given the label as a result of envy or vendetta. Individuals are often expelled from their homes and villages and attacked physically, some are even killed. The persecution of alleged witches is reinforced in many countries by antiwitchcraft legislation. Although in some

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countries there is legislation supposed to protect those accused of witchcraft, this is rarely enforced because of culturally entrenched beliefs about the existence of witchcraft and how to deal with it. Our development partner HelpAge International works to improve the treatment of elderly and vulnerable people in countries all over the world. Taken aback by the situation of those accused of witchcraft, HelpAge came to us seeking legal advice, hoping to find out how to use the existing law to better protect those accused of witchcraft, and to find out what improvements to the law their organisation could recommend and lobby for. A4ID partnered HelpAge with a group of lawyers from firms in Canada, France and the UK. Together the group reviewed the witchcraft legislation of various developing countries and researched whether it was being put into effect, as well as finding out about communities’ attitudes towards witchcraft. Their report showed that the focus should be on encouraging the repeal and fighting the introduction of anti-witchcraft legislation in particular countries. The lawyers highlighted the urgency of bringing witchcraft cases out of customary courts and ending trial by ordeal in the countries

This advice has allowed HelpAge International to develop a strong advocacy position to enable them to push for changes to ensure better protection for other vulnerable people like Nyamizi in the future. This is just one example of the way the law and layers can play their part in international development through A4ID. There are many others ranging from setting up innovative financing agreements to support farmers’ collectives in rural Ethiopia, looking at how the right to water and sanitation could be used to develop domestic law in different countries, and providing advice on accessing carbon credits to social entrepreneurs providing solar technology solutions for the poor. While this work may not be able to help those who are suffering in East Africa, it can help to ensure that individuals living in poverty are able to access basic services such as education, healthcare and clean water, and to improve their lives by protecting their rights. But we are also keen that the role lawyers and the law play in development is a long term one that goes beyond undertaking pro bono projects – although these are vitally important.

Together the group reviewed the witchcraft legislation of various developing countries and researched whether it was being put into effect, as well as finding out about communities’ attitudes towards witchcraft. where this is ongoing. They underlined the need to improve awareness of the laws which protect people accused of witchcraft, so that they can be used to bring and judge cases.

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This is why we run various courses for practising lawyers and law students, and series of Knowledge Groups which provide an in-depth look at the key issues that link law and development with

the aim that they will be able to provide advice to their clients that considers development implications. Our Future Lawyers’ Training Programme is specifically for law students and is due to start again in January 2012, with a second course in March 2012. It is a free course with seminars given by leading legal and development experts and provides information about how you can get involved in international development during your legal career. Please visit our website for further details: www.a4id.org If you are keen to learn more straight away then you should visit our resource centre: www.a4id.org/resources Here you will find recordings of our events and training on topics ranging from land rights to governance in South Sudan, climate change to the new UN Guiding Principles on Business and Human Rights. There are also various reports and articles by development organizations and academics, and legal guides on key pieces of legislation, concepts such as the right to food and institutions and how these can be used by NGOs to enhance their work. Helen Mould is the Head of Learning and Communications at A4ID

For more information about the work of A4ID please visit www.a4id.org or follow on Twitter @a4id To donate to the East Africa crisis appeal go to www.dec.org.uk

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Legal Representatives in China – Seizing the opportunity! An insight into the legal mechanisms of Chinese businesses BY LIM REN-EN, University of Liverpool

n the bustling surroundings of downtown Shanghai, across the world-famous Shanghai Bund, one can feel the thumping heartbeat of an international financial hub and a centre of increasingly global importance. It is therefore perhaps startling to realise that China’s foreign investment laws are still comparatively adolescent in nature. Previously, almost all companies in China were either state-owned enterprises or collectiveowned enterprises. Subsequently, in the 1980s, China began to move from a State-Controlled economy to a Market-Based economy. In recognition of this trend, legislators realised the need to give companies greater freedom in managing its’ business activities. Accordingly, the Central Government affirmed the independent personality of the company by (1) reducing its’ interference with the company’s activities and (2) refraining from representing the company any longer. Instead, a chosen legal representative (法定代表人; Fădìng dàibiăo rén) is now the ‘official face’ of the company. THE IDIOSYNCRATIC CHINESE LEGAL REPRESENTATIVE

Broadly speaking, the legal representative of a company is the main principal of the company. S/He is the officer with the legal power to represent and enter into binding obligations on behalf of the entity her/him or represents in accordance with Chinese Company Law (公司法; Gōngsī fă) and the 42

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Articles of Association of the company (章程; Zhāngchéng). All other persons may only represent the company on the basis of a power of attorney issued by the legal representative.1 Previously, the Chairman of the Board of Directors would usually be registered as the legal representative of the company with the State Administration for Industry and Commerce (国家工商行政管理局; Guójiā gōngshāng

The presence of the company chop is considered to be far more important than any signature. xíng zhèng guănlǏ jú). However, since a revision of Chinese Company Law in 2006, a manager or an executive director of the company may now be alternatively registered as the legal representative of the company.2 THE POTENTIALLY UNTRAMMELED POWERS OF THE CHINESE LEGAL REPRESENTATIVE

Despite increased globalisation, it should be noted from the outset that there still remains significant differences between Chinese and

Western business practices and philosophies. In particular, many Western companies regard the signature of its’ legal representative (usually the Chairman of the Board of Directors) as a representation of authority, and consequently the company is bound by the terms of the signed agreement. Interestingly, this is not the case in China, where the presence of the company chop (公章; Gōngzhāng) is considered to be far more important than any signature. To put it simply, every company in China (which includes FIEs) is required to have its’ own company chop and to register it with the Public Security Bureau ( 公安局; Gōngān jú). The company chop, once registered, represents the company’s agreement whenever it is being used. Thus, it can legally bind the company and is required on documents such as contracts, documents filed with the government or bank account applications.3 The legal representative chop is also of significant importance under Chinese Law. An ink imprint of the legal representative’s chop (a carved version of the legal representative’s name) is required on many company documents, e.g. applications for business licenses and tax certificates and is regarded as a signature.4 Consequently, any person in possession of the Legal Representative’s chop (including the legal representative) may exercise the Lex Loci 2011

For foreign investors who are unfamiliar with Chinese Law, appointing a Chinese legal representative is a highstakes gamble. Certainly, a ‘rogue’ legal representative can cost the FIE valuable time and money, which of course may translate into lost opportunities for the FIE. As such, it is vitally important that FIEs understand the intricacies of Chinese law so as to avoid being entangled in a legal mess. There are 2 main pitfalls which all FIEs should be aware, which are (A) the legal representative may bind the FIE into contracts which the company has no knowledge of and has no intention of entering into and (B) the difficulties which an FIE may face in terminating an uncooperative legal representative. Due to word constraints, this article will only consider the first problem and outline how FIEs can mitigate related risks. ILLUMINATING THE FOG OF INFORMATION ASYMMETRY

The pertinent question here is when a company is liable for the unauthorLex Loci 2011

ised actions of her legal representative. The Chinese Contract Law has clarified this question to a certain extent by stating that ‘If the legal representative of a company creates a contract in excess of authority limits, such representative actions are valid except where the counterparty knows or should know that it exceeded authority limits’. 5 This thus leads on to a further question: what exactly should counterparties know? If the FIE’s articles of associations (which are required to be filed with the State Administration of Industry and Commerce) has specified the authority limits, the FIE may have an argument that since her articles of association are a publicly available record, the counterparties should have done their due diligence before entering into a contract with the FIE.6 However, this can be easily rebutted by counterparties, who may assert that Chinese Law has no tradition of requiring (or permitting) unrelated persons to check this public record.7 Indeed, the customary precaution is for counterparties to review the company’s business license (营业执照; Yíngyè zhízhào), and to rely on the Legal Representative’s name shown on it. If everything appeared in order, then the company will be bound by the contract. This then begets a further question: how can the FIE persuade the court or arbitration tribunal to release them from liability for any unauthorised contract entered into or other actions perpetuated by the Legal Repre-

sentative? The FIE will generally be required to demonstrate that it has made reasonable efforts to define, implement and publicise its’ Legal Representative’s authority limits.8 Thus, the FIE should (1) specify authority limits in its’ Articles of Association, (2) post them on the company’s website, while at the same time encouraging and facilitating viewing of the website by potential counterparties and (3) implement effective chop control procedures. 9 Pertaining to (1), it is imperative that FIEs define the authority limits by specifying them clearly in the company’s Articles of Associations. In practical terms, this often entails resisting pressure from local governments to use its’ published and preferred standard form of articles. A possible compromise would therefore be to adopt the basic structure of that form while adding more detailed provisions relating to the Legal Representative’s authorised limits10, for example by inserting a clause that the Legal Representative is not permitted to issue a power of attorney to a designated representative under the company’s Articles of Association. However, the FIE should also be conscious that this does not represent the end of their involvement, and they have to continue to be active in observing and implementing the authority limits. This may include creating and preserving records of compliance with authorisation procedures that are specified in the articles, and concurrently ensuring that ‘short-cuts’ do not become customary practices.11 This is especially important because Chinese courts may still hold the FIE liable for the formally unauthorised actions of it’s’ personnel if it becomes apparent that the company has customarily adopted a laissez-faire approach. Pertaining to (2), as outlined above, the key aspect here is that FIEs should have taken all steps to ensure Articles

that counter-parties have a reasonable opportunity to examine the Legal Representative’s authority limits and/or the FIE’s Articles of Association. Thus, besides placing the above on the website, the FIE should also consider posting in other prominent places (including in the FIE’s standard form documents) a notice stating that potential counter-parties should view the limits.12 Alternatively, if the FIE is reluctant to publicly disclose the Legal Representative’s authority limits, then it could also post a notice in prominent places which states that the scope and limits of the Legal Representative’s authority will be determined by annual resolutions of the Board of Directors.13 Such resolutions could be made available to potential counter-parties, who are then invited to request and review them.14 Pertaining to (3), the main danger here is that any person in physical possession of the Legal Representative’s chop can in effect ‘sign’ a document, and consequently bind the FIE to it. It is therefore of paramount importance that the FIE controls both the physical whereabouts of the chop as well as its’ inherent power to bind the company. By restricting access to the chop and keeping scrupulous records of it’s’ use (i.e. who used it, when was it used and for what purpose was it used for), the FIE would be able to maintain effective control over the use of the chop.15 Moreover, FIEs can also enter into arrangements with banks and counterparties by requiring that all contracts and company documents be signed by a designated company officer in addition to being ‘chopped’.16 To summarise, FIEs should strive to foster a culture of checks and balances within the company by implementing a dualkey test to activate the contracting power of the company. The obvious benefit of such a procedure is that the company will enjoy an additional safe44

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guard against the risk of being bound by unintended contracts, whilst at the same time reducing the Legal Representative’s burden and exposure to risk. In other words, a win-win situation for all parties concerned. DON’T BE A ‘TARZAN’: THE DANGERS OF SWINGING TO THE EXTREME AND WHY CHINA IS ON YOUR SIDE

This article has sought to address some of the concerns which an FIE may have over Chinese Legal Representatives; however, the author also respectfully submits that that there is a difference between prudence and irrational paranoia. Despite all the potential pitfalls, FIEs should have nothing to fear if they have lain down and implemented proper policies for the use of the Legal Representative’s chops. This is because any misuse of the Legal Representative’s chop is no different from forging a signature, and Chinese Law does not take a light view of such conduct. The Legal Representative is potentially liable under Chinese Administrative, Civil or Criminal Law. Pertaining to Civil Liability, Chinese law regards the Legal Representative’s duty-related behaviour as the activities of the company. This means that if a Legal Representative acts beyond her or his authority, and if the third party is unaware, the company is

bound by the Legal Representative’s actions. Nevertheless, the FIE will be permitted to seek compensation from the Legal Representative for its’ losses caused by her or him.17 With regards to Administrative Liability, the Legal Representative may be subject to fines and administrative punishment in accordance with the procedures of the relevant PRC government authorities if the company violates laws and regulations. Thus, the Legal Representative may be liable for the company’s actions, inter alia, where the company (1) conceals facts from the registry and tax authorities and practices fraud, (2) fails in applying for registration and making a public announcement promptly when it undergoes a change, which has had the effect of causing interested persons to suffer losses and (3) engaging in activities which is detrimental to the interests of the State or contrary to public interest.18 Depending on the severity of the offence, the Legal Representative may be punished with a fine of up to RMB 100,000. Under Chinese Criminal Law, the entity and the person who is directly responsible for the crime of the entity is criminally liable. In other words, the Legal Representative as the main principal of the entity will not be pursued unless she or he is a direct participant in the crime. Depending on the severity of the offence, this may range from fines and public surveillance to imprisonment or even death.19 Moreover, when one considers that China is actively seeking foreign FDI20 and is creating a more business-conducive environment21 (achieving an impressive score of 0.21 on the 5-year measure of cumulative change)22 , it is likely that China will strengthen corporate practices by implementing and enforcing a much stricter regulatory regime. In other words, the Legal Representative is ‘under siege’ with Lex Loci 2011

more onerous obligations heaped onto her/him. In addition, it is also prejudicial to the FIE’s interests for them to continue seeing the Legal Representative as a threat rather than an opportunity to be seized. It is sometimes easy to forget in the labyrinth of regulations and rules that the most important aspect of a company’s success is winning the hearts and minds of her people. Of course, an FIE can take the more convenient approach by laying down strict procedures and enforcing it strictly amongst her employees (including the legal representative). In such a system, people are regarded as necessary but replaceable. In other words, the organisation only wants the person’s body and not her or his mind, heart and spirit, and by so doing reduces the person from being a beacon of their own intelligence and genius to just like any other ‘thing’. A logical corollary of such antiquated thinking will be that Legal Representatives become more defensive (rather than being pro-active or cooperative) in their handling of company matters. This could in turn lead to an increase in unnecessary red-tape in the quest for full accountability, and

the FIE is consequently hampered from seizing fleeting opportunities. Is this really desirable? PERFECTING THE YIN-YANG DANCE

Rather than giving in to irrational fears, FIEs should instead seek to develop a cooperative and mutually beneficial relationship with their Legal Representatives. One way that the FIE can do so is by undertaking their fair share of the risk burden. As pointed out above, Legal Representatives are potentially liable for the full range of company activities. FIEs should thus consider allocating particular powers and responsibilities to particular company officers. This will not only reduce the risks borne individually by the Legal Representative and other designated employees (thus allowing the Legal Representative to stay focused and be less defensive), but will also have the added benefit of preventing important matters from ‘falling between the cracks’. Moreover, if the FIEs are in a position to do so, they should also think about offering the key company officers individual liability insurance. This will not only provide the designated staff with a certain degree of reassurance, but will also demonstrate the firm is

CMS China, ‘Corporate Governance in the People’s Republic of China’ (September 2010) <www.cmslegal.cn> Accessed 01 July 2011 2 Neal Stender, William Soileau and Yan Zeng, ‘Representative Roulette – Individual and Corporate Risks & Precautions Affected by China Law Changes’ (March 2007) <http://www.orrick.com/fileupload/1146.pdf> Accessed 01 July 2011 3 Klako Group, ‘Individual and Corporate Risks & Precautions for Foreign Invested Enterprises in China’ (March 2009) <http://www.klakogroup.com/en/ chinainvestbiz-magazine/141-individual-and-corporate-risks-a-precautionsfor-foreign-invested-enterprises-in-china> Accessed 01 July 2011 4 ibid 5 Neal Stender, Elizabeth Cole and Yan Zeng, ‘Limiting the Liability of China Companies; Limiting Their Officers’ Liability & Powers’ (2010) <http://www. orrick.com/fileupload/1615.pdf> Accessed 01 July 2011 6 Supra Note 2 7 ibid 8 ibid 9 ibid 10 ibid 11 ibid 12 Supra Note 2 1

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one which genuinely cares for the welfare of her employees. Such insurance policies are also relatively inexpensive, even if obtained from reputable insurers, if the FIE has comprehensive corporate governance and risk management policies in place. If one further considers that the provision of such policies to key stakeholders in the firm will have the added benefit of developing a ‘reservoir of goodwill’ (towards the company) amongst them, then this author respectfully submits that this is indeed a most worthy investment. CONCLUSION

This article has sought to provide a sketch of the somewhat controversial Chinese Legal Representative, which until relatively recent times has been crouched in obscurity and mystery. Nevertheless, the Legal Representative is here to stay, and the intelligent FIE will do well to seek engagement and build consensus with her or him. This may of course involve a paradigm shift in one’s thinking and the casting away of long held perceptions, but if such changes lead to a deep and abiding camaraderie between the company and her Chinese staff, then the FIE should act decisively to ‘force the spring’.

ibid ibid 15 ibid 16 Supra Note 5 17 Bill H. Zhang, ‘Legal Representatives, Company Supervisors and their Roles and Responsibilities in China’ (December 2009) <http://www.hg.org/article. asp?id=7819> Accessed 01 July 2011 18 ibid 19 ibid 20 Channel NewsAsia, ‘China’s H1 foreign direct investment up 18.4% on-year’ (July 2011) < http://www.channelnewsasia.com/stories/singaporelocalnews/ view/1141049/1/.html> Accessed 01 July 2011 21 World Bank Group, ‘Doing Business 2011 – China’ (2011) <www.doingbusiness.org/~/media/FPDKM/Doing Business/Documents/Profiles/Country/DB11/ CHN.pdf> Accessed 01 July 2011 22 ibid, at p.5. The 5-year measure of cumulative change is a snapshot reflecting all cumulative changes in an economy’s business regulation as measured by the Doing Business indicators – such as a reduction in the time to start a business or an increase in the strength of investor protection index thanks to new stock exchange rules that tighten disclosure requirements for relatedparty transactions. 13

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We invite you to consider a career as a

LEGAL SERVICE OFFICER in the SINGAPORE LEGAL SERVICE The breadth and scope of experience that is available to a Legal Service Officer (“LSO”) in the Legal Service is unsurpassed. LSOs are provided numerous opportunities and exposure to a broad spectrum of challenging and interesting work that is not available elsewhere. LSOs may serve as a Deputy Public Prosecutor in the State Prosecution Division, the Criminal Justice Division or the Economic Crimes and Governance Division of the Attorney-General’s Chambers (“AGC”); or as a State Counsel in the Civil, the International Affairs or the Legislation & Law Reform Divisions of the AGC. LSOs may be also appointed a District Judge, Magistrate, Coroner or Registrar at the Subordinate Courts or the Supreme Court Registry; or as Directors & Heads of Legal Service departments; or as a Legal Counsel in Ministry HQs, departments and the Registries. In addition, LSOs may be seconded to specific statutory boards to undertake legal work. You will, as an LSO, have a noble and fulfilling legal career that will make a significant difference to our society. You will serve and protect the interests of the public and the nation. You will directly participate in the administration of justice and uphold the rule of law in Singapore. The Legal Service awards scholarships annually for LSOs to study for a Masters in Law at prestigious Law Schools. LSOs may also be granted scholarships/training awards to undertake leadership and executive/development programmes at premier business schools. The general requirements for appointment to the Legal Service are that the applicant should have graduated with a law degree from: (i) the NUS or the SMU; or (ii) a Scheduled University (in the UK, Australia, New Zealand or the USA) and passed the Part A of the Singapore Bar examinations and be a qualified person. Fresh graduates (with at least a Class 2.1 or the equivalent) are encouraged to apply for possible appointment as an LSO. [Those with a Class 2.2 (or the equivalent) who are very keen in a career in the Legal Service may also be considered for appointment. The applicant must provide strong reasons on why he / she should be considered an exception to the Class 2.1 requirement. A one-page write-up (and relevant testimonials) should be furnished. All such applicants will be considered on a case-bycase basis. Undergraduates who have completed at least their second year are also encouraged to apply for possible appointment as an LSO. Those selected will be immediately offered conditional appointment in the Legal Service. The confirmation of the offer of appointment will be subject to their being awarded at least a Class 2.1 (or the equivalent). Those who apply and are offered conditional appointment prior to their graduation but are thereafter awarded a Class 2.2 (or the equivalent) will be specially considered for possible confirmation of the offer of appointment. Recruitment interviews are conducted throughout the year. Eligible applicants are invited to submit the Application Form (available at: http://www.lsc.gov.sg) with your resume and copies of academic certificates, transcripts and testimonials to :

The Director, Singapore Legal Service 1 Supreme Court Lane, level 4, Supreme Court, Singapore 178879 Please contact us at email: lsc_sec@lsc.gov.sg if you have any query.

from the prying eyes of the media, while the right to expression suggests the media would be free to report (on those private lives) as they see fit. It has been noted that much public debate was generated over this privacy-expression conflict during the passage of the Human Rights Bill. 7

Privacy and Expression Has the Human Rights Act 1998 improved the resolution of conflicting claims between privacy (Article 8) and expression (Article 10)? This article considers, in particular, whether the judicial resolution of such conflicts is appropriate in the light of recent developments in the UK, amongst others the controversy surrounding Twitter’s breach of privacy orders. BY JEREMY LEOW, University of Liverpool

istorically, English law does not recognise and protect the right to privacy as such1. It is also trite law that the English legal system does not recognise causes of action for breach of a person’s privacy.2 The Government has also refused on numerous occasions to establish the right to privacy and enact any form of statutory regulation for breach of privacy by the media.3

Despite this historical aversion to recognition of the right to privacy, some inroads may have been made by the adoption of the European Convention of Human Rights (henceforth ECHR) in the form of the Human Rights Act 4 (henceforth HRA). In particular, the conflict between the right to expression and the right to private and family life 5 has generated varying interpretations and principles that go some way towards creating a framework for the better resolution of the conflict between the rights to privacy and expression.6

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It is submitted that this post-HRA framework is a substantive improvement over its predecessor and also that its origin lies in the horizontal effect of the ECHR conferred by the HRA. Furthermore, it is argued that judicial resolution of privacy-expression conflicts is appropriate because judges are better positioned to consider the balance in cases that often turn on their own facts. However, judicial resolution of these conflicts may not be very effective; a shortcoming highlighted by the recent flaunting of privacy orders on electronic platforms such as Twitter. The two rights of privacy and expression are defined respectively in the ECHR’s Article 8 and Article 10. For convenience’s sake, the rights in Article 8 will be referred to as ‘privacy’ even though they possess a slightly different scope. The core conflict between these rights stems from press freedom – the right to respect of private life protects individuals

Representatives of the press – perhaps somewhat justifiably, given prior extra-judicial pronouncements by several prominent judges in favour of the development of the right to privacy 8 – feared judicial recognition of the right to privacy and subsequent suppression of their treasured press freedom. 9 This debate culminated in s.12 of the HRA, a curious amendment to the Human Rights Bill (as it then was) to assuage media concerns by imposing procedural safeguards on courts before the grant of orders that might affect freedom of expression. 10 This article will focus on the privacyexpression conflict between the media and the individual. This issue has also risen to prominence again at the time of writing because of two factors: the socalled ‘Twitter Spring’ and the decision in Strasbourg of Mosley v. UK. 11 It is argued that the contributions made by the HRA to the resolution of privacyexpression conflicts can be broadly divided into procedural and substantive contributions. The former is the introduction of horizontal effect of the ECHR by virtue of s.6 of the HRA; this horizontal effect and the judicial analysis it generated subsequently allowed the courts to develop a “new methodology” 12 to give effect to Parliamentary intention. At face value, the Act and the Convention it gives effect to are directed at state actors13, which in EC parlance is referred to as ‘vertical effect’. This is not only because of the nature of the Convention 14 but also because of its drafting. 15 By extension, the HRA is targeted at ‘public authorities’. 16 Therefore, at first glance private parties are not included.

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However, recent cases have given credence to early predictions that the HRA would extend to ‘horizontal’ effect, i.e. that it would apply to disputes between two private parties. 17 Notably, the ‘public authorities’ referred to in the HRA intentionally include courts and tribunals 18 and it has thus been argued that although the actual violation of the protected rights was committed by a private party, the court must give judgment in accordance with the relevant rights. 19 This provides indirect horizontal effect20, as evidenced by the cases Douglas, Zeta-Jones21 and Venables 22. Judges in both cases concluded that while the defendants could not be classified as public authorities (they were newspapers), the court had jurisdiction to grant injunctions protecting the Convention right to privacy and was obliged under s.6 of the HRA to consider and have regard to such Convention rights.23 For this particular aspect of the privacyexpression debate, it is also pertinent to note that some private entities in the media sector may be construed as public authorities.24 Despite English law’s apparent lack of a formal right of privacy, Lord Keith famously stated that “Breach of Confidence involves no more than an invasion of privacy.” 25 Commentators have also noted that breach of confidence has always provided a degree of protection for privacy. 26 Thus, at the core of the substantive changes wrought by the HRA is the change in the approach taken to the breach of confidence tort. Equitable in nature, it was defined by Megarry J that the relevant information must have three characteristics: a “necessary quality of confidence about it”, been “imparted in circumstances importing an obligation of confidence” and subject to “unauthorised use of that information to the detriment of the party communicating it.” 27 The information considered to bear “quality of confidence” has been interpreted quite widely to include information

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such as details of lesbian relationships. 28 However, the main stumbling block of the breach of confidence tort is the second component. 29 Subsequent to the HRA, however, it is argued that this overly restrictive approach has in fact been broadened despite the Home Secretary’s assurances to the media that s.12 would work to prevent such a shift. This is shown by a brief summary of Aplin’s analysis of the development of the law related to the breach of confidence post-HRA in three key areas 30 and it is argued that this change in judicial mindset would not have come about if the HRA had not allowed the horizontal application of Convention rights.

a wide range of information as potentially private. 37 By way of example, Venables 38 included inter alia information about the child killers’ physical appearances, new identities, and place of incarceration. 39 There remains, however, some academic disquiet with the issue of sexual information. A v. B&C did not regard sexual information as confidential, but as seen above40 there is precedent that supports

Following a period of liberalisation immediately after the HRA, the courts have narrowed the defence back to a doctrine close to its’ original roots.

The traditional requirements for ‘confidential’ information have been eschewed in favour of a determination of whether or not that information is ‘private’ and if so, the courts impart an obligation of confidentiality and begin the balancing exercise of privacy and expression. 31 This shift in doctrine crystallised in Campbell 32 where the Law Lords considering the case devised three tests 33 for determining what constituted private information. Unfortunately, which test is definitive is a question that has not yet been authoritatively addressed 34 but it is submitted that the ‘reasonable expectation of privacy’ test is to be preferred. This, as Moreham has noted, reflects the subjective nature of the privacy interest while retaining the reasonableness requirement as an objective check. 35 It should be noted that while this test has received some support in subsequent first instance cases 36 there still remains some uncertainty surrounding this matter. The shift of focus to private information has two consequences, one of which is allowing the courts to continue accepting

protecting details of sexual relationships. Aplin suggests that this issue should come to rest post-Campbell because of the focus on private information, as sexual information is doubtlessly intensely private. To conclude this analysis of post-HRA developments in the breach of confidence tort, it is prudent to consider the defence of public interest. Pre-HRA, it was employed as a defence against the tort and narrowly construed. 41 Following a period of liberalisation immediately after the HRA, the courts have narrowed the defence back to a doctrine close to its original roots. 42 It is argued that the HRA has introduced a better regime for the resolution of privacy-expression conflicts by overcoming the resistance that stymied reform in the 1990s and allowing judicial analysis of a wider variety of rights. The new regime is substantively superior for two reasons: Firstly, the current doctrine reflects reality better in its focus on privacy and the eschewing of the artificial barrier of a relationship of confidence. As Baroness

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Hale has noted, the HRA is for the benefit of “ordinary people who lead ordinary lives”. In the ordinary course of life, a far wider range of information that applicants would want to protect is likely to come within the ambit of ‘private’ rather than ‘confidential’. To allay concerns that this shift in doctrine may result in excessive hindrance of freedom of expression, it is important to note that the court still has to conduct a balancing exercise between the two rights43, providing an important checkand-balance. Secondly, the new methodology provides a more nuanced approach to expression and privacy, in line with ECtHR jurisprudence and contrary to the Home Secretary’s earlier assertions that expression is favoured over privacy. 44 The media play an important ‘public watchdog’ role 45 but this role is only

exercised for matters of public concern, specifically matters that ensure the democratic process. The recent Mosley 46 judgment in the EctHR is indicative of this; while Mosley’s attempt to obtain a priornotification rule was derailed, the ECtHR drew a sharp distinction against reports intended to “titillate” and nothing more. Most of the population would doubtlessly be interested in the private affairs of celebrities, but such trivial information can hardly justify the invasion of privacy. The judiciary is also more appropriate because of its neutrality; unlike selfregulators (e.g. PCC), the judiciary has no ties with the media and will be less likely to construe provisions for one party’s benefit. Self-regulators need to establish credibility before they can be viewed as an alternative to the courts. 47 However, the recent flaunting of privacy orders on online platforms such as Twit-

Campbell v Mirror Group Newspapers [2004] 2 A.C. 457, 11, per Nicholls LJ Kaye v Robinson [1991] F.S.R. 62, 66, per Glidewell LJ 3 M. Thomson, Presentation given to the IBC/Matrix Conference on “Privacy and the Media”, Atkins Thomson (2009) 4 Human Rights Act 1998 c.42 5 Article 8 in the ECHR protects the right to private and family life, while Article 10 protects freedom of expression. For ease of reference, the Article 8 right shall hereafter be referred to as the right to ‘privacy’. 6 Henceforth referred to as the ‘privacy-expression conflict’ 7 T.Lewis and J.Griffiths, ‘The Human Rights Act s.12 – Press Freedom over Privacy?’ (1999), 10(2) Ent.L.R. 36. 8 See, for example, Lord Bingham of Cornhill, “Should There Be a Law to Protect Rights of Personal Privacy?” [1996] E.H.R.L.R. 450 at 461-462 9 Ibid., 415 10 Hansard, H.L. Deb., February 16, 1998, col. 777 11 Mosley v The United Kingdom no.48009/08 §41 ECHR 2011 12 D. Eady ‘Injunctions and the protection of privacy’ (2010) 29(4), C.J.Q. 2010, 417 13 Hare ‘Verticality challenged: private parties, privacy and the Human Rights Act’ (2001) E.H.R.L.R. 2001, 5, 526 14 By nature, the ECHR is an international treaty. International treaties bind State Parties, not the private individuals within them. See R.Singh, ‘Privacy and the Media after the Human Rights Act’ (1998), 6 E.H.R.L.R 712, 716 15 Art. 34 of the ECHR 16 S.6 of the HRA 17 For such predictions, see above, (n. 7) and I. Hare ‘Verticality challenged: private parties, privacy and the Human Rights Act’ (2001) E.H.R.L.R. 2001, 5, 526 18 S.6(3) HRA 19 See e.g. W. Wade, Q.C.: “The United Kingdom’s Bill of Rights” in Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Hart Publishing, 1998), 62-64 20 G. Phillipson: “The Human Rights Act, ‘Horizontal Effect’ and the Common Law: a Bang or a Whimper?” [1999] 62 M.L.R. 824 21 Douglas, Zeta-Jones and Northern and Shell plc v Hello! Ltd [2001] 2 W.L.R. 992 22 Venables & Thompson v News Group Newspapers Ltd [2001] 2 W.L.R. 1038 23 Above, (n. 9) 1

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ter is cause for concern. How the leaks occur is not known, but the Twitter account responsible has garnered vast numbers of followers. Efforts to remedy the problem by including Twitter and Facebook (as Baker J has done) in injunctions are likely to be counterproductive; such efforts will only add fuel to the fire by making it a ‘badge of honour’ 48 to uncover the protected information. 49 Baroness Buscombe has famously asserted that privacy laws cannot be effective where technology is always “ahead of the law”. 50 It is arguable that the judiciary has dug its own grave with the casual – to the public at least – grant of privacy orders in recent years. Nevertheless, they remain the most appropriate body to supervise the balancing of the rights of privacy and freedom. So long as they remain neutral and resist the temptation to arbitrate on taste or personal preference, they should continue to regulate this conflict.

24 The most salient example must be the British Broadcasting Corporation. Regulatory bodies such as the Press Complaints Commission (PCC) may also come under this public banner. 25 Attorney General v Guardian Newspapers [1990] 1 A.C. 109, 255 26 T. Aplin, “The development of the action for breach of confidence in a postHRA era” (2007) 1 I.P.Q. 19 27 Coco v A.N. Clark (Engineering) [1969] RPC 41, 47 28 Stephens v Avery [1988] 1 Ch. 449 29 J. Coad, “Privacy - Article 8. Who needs it?” (2001) 12(8) Ent. L.R. 226 30 See further above, (n. 29) 31 This approach was first evidenced in A v. B & C [2003] Q.B. 195, CA 32 Campbell v MGN Ltd [2002] H.R.L.R. 28 33 The ‘reasonable expectation of privacy’ test, the ‘obviously private’ test from A v. B & C, and Hope LJ’s modified ‘Lenah’ twofold test – each has been subject to varying criticism. See Above n 29 for more information. 34 Above (n. 29), 44 35 N. A. Moreham, “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 L.Q.R. 628, referred to at Above (n. 29), 26 36 E.g. Green Corns Ltd v Claverly Group Ltd [2005] E.M.L.R. 31 37 See above, (n. 32) 38 Above, (n. 24) 39 Ibid., 1073 40 Above, (n. 32) 41 Above (n. 29),44 42 ibid 43 Above (n. 39) 44 Handyside v UK 1 E.H.R.R. 737 45 Castells v Spain 1992) 14 E.H.R.R. 445 46 Above (n. 11) 47 “The media and the state: be careful what you wish for” Guardian.co.uk (13 May 2011) 48 Above (n. 12), 426 49 C. Arthur “Twitter and Facebook publication banned for first time in injunction” Guardian.co.uk (13 May 2011) 50 M. Sweney, ‘Twitter revelations prove privacy law ‘could not work’, says PCC chair’ Guardian.co.uk (10 May 2011) 51 A Google search reveals tomes of discontent on major newspaper websites 52 E.g. A v B plc [2003] QB 195

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Harmonising Competition Law in ASEAN A regional competition law or separate national competition law? Taking the best step forwards. BY SAMANTHA ONG, University of Warwick

n 2005, Goldman Sachs introduced the Next Eleven, a new national economic category which identified a new set of populous countries with the potential for significant economic growth. These countries, which include India, Indonesia and the Republic of Korea1 , were those that would have a significant impact on the global economy, just as China did. This set the backdrop for strong economic competition between the different Asian countries. At a time when international and regional commercial transactions are increasing exponentially, there is an increasing need for a unified regulatory framework for competition laws. In our region currently, the competition laws of the different countries are at varying stages of development, affected in large by unique historical, political and cultural circumstances.2 In this regard, this article proposes that a regional body be established to tackle the problems these international transactions would bring. This article begins by providing a brief outline of the problems of having a competition law at just the national level using Singapore as an example. It will go on to show that the solution to these problems is the establishment of a regional body and the possibility of ASEAN taking on this role is also examined. This is especially so since national competition law regimes, as they currently stand, are neither globally harmonized nor particularly consistent.

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DIFFICULTIES FACED BY MERE NATIONAL COMPETITION LAW Competition law in Singapore is enforced by the Competition Commission of Singapore (“CCS”) which serves as both the investigator and the adjudicator3 in the event of disputes. All anti-competitive behaviour falling under any one of the 3 categories of: (1) anti-competitive agreements, decisions and practices; (2) abuse of a dominant position and (3) mergers

© Ben Heine | www.benheine.com which substantially lessen competition4 include an extra-territorial clause. This means that the law may still apply even where ‘the agreement is entered into, or where any party to the agreement is, outside Singapore, so long as the agreement has as its object or effect the appreciable prevention, restriction of distortion of competition within Singapore.’5 Due to the increasingly regional and international nature of commercial transactions today, such a limitation would undoubtedly give rise to enforcement problems with regard to financial penalties, sanctions and struc-

tural remedies. If other nations fail to possess any similar form of competition law, companies could opt to operate in these other countries, instead of Singapore. The non-compliant party would not suffer from any repercussions stemming from their acquiescence. Thus, in the absence of a convergence or unification of competition policies, there is the danger of the legitimacy of the competition law in one country being challenged under the existing laws in other countries. Considering this, for the effectual enforcement of competition law in a region such as Asia, national law requires some convergence with the regional law to ensure that the enforcement of competition law occurs. Especially since competition cases are becoming increasingly sophisticated and competition economics is continuously evolving, mere national competition law cannot be effectively enforced without external aid. This is more so in a small and open economy such as Singapore’s. In addition, companies have become adept at masking their conduct in order to circumvent existing competition law. The lessening of the numbers of cartel cases, for instance, could mean that they have become more sophisticated and gone deeper “underground” 6 – utilising newer methods and becoming ever more intelligent in disguising their tracks or even being able to effect them from a continent away. The presence of these cartels operating outside Singapore may still impact Singapore’s economy and although the presence of the

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© Ben Heine | www.benheine.com extra-territorial clause might serve as a remedy, it would still be difficult for CCS to act alone in such instances. Therefore, there is a need for effective and co-ordinated international enforcement between competition agencies to investigate and break up international cartels.7 A POSSIBLE REGIONAL BODY – ASEAN? The ASEAN Economic Community Blueprint contains directions to transform ASEAN into a stable, prosperous and highly competitive region with equitable economic development.8 In fulfilling this aim, one of the requirements is that all member countries are to have full-blown competition policies in place by 2015.9 Since the rationale for a regional competition law is to strengthen the economic integration of the ASEAN region, it is important that any agreement restricting competition as well as abuse of dominant market positions be controlled by effective competition laws.10 On the national level, ASEAN countries need to develop legal systems that can encourage and oversee increasingly competitive business activities in the region, regardless of their socio-economic state . On the regional level, some convergence and unification of these competition laws is required as

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ASEAN economies integrate with one another through intra-regional trade and investment.11 Before there can be the elimination of barriers to trade and investment, there will be a need for an effective system of protection against unfair competition at the regional level. Such a system would govern the economic activities and commercial transactions of transnational corporations (“TNCs”) in the ASEAN region. With an increasing number of more liberal trade and investment regimes being established in ASEAN countries, competition rules will need to regulate the competition among businesses and supervise their conduct. DIFFICULTIES ASEAN MIGHT FACE How would ASEAN face the difficulty of implementing competition laws regionally given the sheer diversity of the countries involved and how would it be able to establish a regional Competition Regulatory Authority? With regard to the former, ASEAN could develop something akin to the European Evidence Warrant utilised by the EU. In cases of mutual recognition, the request from one country to another will

be directly recognized and enforced by the other country, thereby transforming the request into a legal order.12 Such an instrument would require the laying of foundational principles of mutual assistance and agreement of the countries involved as long as the sovereignty of the country is not interfered with. For example, at the moment, if Singapore were to discover the presence of a cartel in Malaysia, she would lack the powers to thoroughly investigate the situation to determine the appropriate course of action to be taken. By going through ASEAN instead of each nation’s own foreign relations, legitimacy is granted to this request for information about the cartel, barring any grounds for refusal. As such, ASEAN aids in the enforcement of cooperation between Singapore and Malaysia in the investigation and in halting all forms of anti-competition measures. With regard to the punitive aspect, ASEAN would be a better judge in taking all countries’ interests into account and in deciding a penalty, unlike that of Indonesia’s fine of 900 rupiahs and penalty of 16 months imprisonment13 which were both inappropriate and unrealistic. However this may be regarded as slow and inefficient given the fact that it does not impose any standard forms to be used when issuing a request for obtaining evidence or any fixed deadlines for executing the request.14 The nature of competition law requires a much higher degree of harmonization than many other sectors of international law. Hence, the principle of mutual recognition should be strived towards. Going one step ahead of mutual assistance – where one exchanges information – each country should recognise the importance and significance of aiding each other’s investigations into anticompetition acts without losing their own sovereignty. Information gathering would be governed by the national authority. There will be limits to prevent real-time surveillance on the movement of those suspected to be involved in such activities. Much care must be taken in drafting such

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an instrument, in order to balance the powers of the countries against the need for effective cross-border investigation. Regarding the development of a Competition Regulatory Authority, the general infrastructure and other comparative economic advantages of the ASEAN countries appear good; the only important drawback is that the majority of ASEAN countries tend to lack good governance and a rule-based system. Therefore, a combination of sound ASEAN legal and economic systems may be viewed as favourable factors capable of producing a positive effect on ASEAN’s competitiveness in international trade and investment.15 A proposed model would be the network model, as also suggested in the method of enforcement I have put forward. This model relies on the adoption of mutual assistance, co-operation agreements or formal protocols, enforcement networks, information-sharing and networking of substantive competition law.16 Taking into account the diversity of ASEAN’s economic structures, economic history, legal systems, societal goals, culture and differences in national socio-economic infrastructures, I find that the network model would be better suited in its flexibility over the WTO model of international agreement. The WTO model would

include an international enforcement system and an international agency or commission responsible for ensuring respect of the international antitrust rules or competition law.17 The network model could work in tandem with legislation structured to narrow the distinctions between national laws while leaving variations of detail to national legislators.18 Given the information asymmetry present in all member countries of ASEAN and other possible barriers to international cooperation such as the underdeveloped infrastructure of some countries, regional cooperation might not occur. This is either due to the fact that the need for competition law is not perceived because of fears of losing sovereignty or even due to the power that wielding dissent would grant.. The new framework would benefit better from a network model of co-operation agreements, which would allow each country to pursue its own economic interest without the interference of a greater authority. In contrast the WTO model would inevitably force all participating countries to comply with its aims. CONCLUDING REMARKS At the moment, the recent years of significant international commercial transactions are being subject to non-binding or

Asian Development Bank ‘In Focus: Bangladesh’ <http://www.development. asia/issue01/focus.asp> accessed 20 June 2011. 2 Competition Commission Singapore ‘Competition Law in Singapore – Recent Developments’ <http://www.jftc.go.jp/eacpf/06/6_03_14.pdf> accessed 20 June 2011. 3 Competition Act 2004 4 Competition Act 2004 5 Competition Act 2004 6 R Ian McEwin ‘Competition Law in Singapore’ <http://www.scribd.com/ doc/50892735/Competition-Law-in-Singapore> accessed 20 June 2011. 7 ibid accessed 20 June 2011. 8 ASEAN ‘ASEAN Economic Community Blueprint’ <http://www.aseansec. org/5187-10.pdf> accessed 25 July 2011. 9 ibid accessed 25 July 2011. 10 Dr. Lawan Thanadsillapakul ‘The Harmonisation of ASEAN Competition Laws and Policy from an Economic Integration Perspective’ <http://www. thailawforum.com/articles/theharmonisation.html> accessed 25 July 2011. 11 Mohamed Ariff ‘Competition Policy for ASEAN’ < http://www.eria.org/research/images/pdf/PDF%20No.1-2/No.1-2-part2-8.pdf> accessed 25 July 2011. 12 Julian Nowag, ‘Due Process - The Exchange of Information and Risk of Hindering Effective Cross-Border Co-operation in Competition Cases’ (2010) 1

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so-called soft international rules. This is not an unfeasible path for the development of ASEAN competition law before the actual development of the regional authority as competition law and its enforcement have been increasingly subject to both hard and soft international rules. Many regional and preferential trading agreements include binding commitments on competition laws.19 The recent U.S.Singapore free trade agreement is a case in point which contained an obligation on Singapore to enact and enforce a competition law.20 Thus, in order for a more co-ordinated international enforcement effort between competition agencies, ASEAN would need to play more than just an observational role as it currently does right now. Given the fact that not all members have developed a form of competition law, this could be a potential area to improve and work towards in future. It would perhaps also be easier to agree on the framework and design the regional authority would now take, whilst each nation lacks welldefined competition law. Therefore, the establishment of a regional body to enforce competition law in the near future should certainly be considered as a viable option.

7(1)Comp.L.Rev 105. 13 Dr. Lawan Thanadsillapakul ‘The Harmonisation of ASEAN Competition Laws and Policy from an Economic Integration Perspective’ <http://www. thailawforum.com/articles/theharmonisation3.html> accessed 25 July 2011. 14 Julian Nowag, ‘Due Process - The Exchange of Information and Risk of Hindering Effective Cross-Border Co-operation in Competition Cases’ (2010) 7(1)Comp.L.Rev 105. 15 Dr. Lawan Thanadsillapakul ‘The Harmonisation of ASEAN Competition Laws and Policy from an Economic Integration Perspective’ <http://www. thailawforum.com/articles/theharmonisation6.html> accessed 25 July 2011. 16 Dr. Lawan Thanadsillapakul ‘The Harmonisation of ASEAN Competition Laws and Policy from an Economic Integration Perspective’ <http://www. thailawforum.com/articles/theharmonisation7.html> accessed 25 July 2011. 17 Dr. Lawan Thanadsillapakul ‘The Harmonisation of ASEAN Competition Laws and Policy from an Economic Integration Perspective’ <http://www. thailawforum.com/articles/theharmonisation7.html> accessed 25 July 2011. 18 ibid accessed 25 July 2011. 19 Simon J. Evenett ‘ “Soft Law” and International Economic Regulation: The Case of Mergers and Acquisitions’ <http://www.evenett.com/publicpolicy/ policypapers/EvenettSoftLawGEP.pdf> accessed 20 June 2011. 20 ibid accessed 20 June 2011.

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Breaking Boundaries, Bridging Borders: The Work on An International Arbitrator By Ang Ann Liang, University College London

Mr Michael Hwang SC is currently a barrister and arbitrator and the sole proprietor of Michael Hwang Chambers. He has received much recognition for his work in international arbitration spanning across many different countries. A distinguished member of the International Council for Commercial Arbitration, Mr Hwang also served as the President of the Law Society of Singapore from 2008 to 2010, and was appointed the Chief Justice of the Dubai International Financial Centre Courts in 2010, after having served as Deputy Chief Justice since 2004. He graduated with two law degrees from Oxford University and was among the first cohort of practitioners appointed as Senior Counsel of the Supreme Court of Singapore in 1997. Prior to his current appointments, Mr Hwang also served as a Judicial Commissioner in the Supreme Court (1991-1992) and vice-chairman of the International Court of Arbitration in Paris (2005-2009). We are privileged to have him share his thoughts with us. On Career Many publications cite you as a world-renowned arbitrator. Could you share with us any interesting cases you have encountered in your work? By definition, commercial arbitration cases are cloaked in confidentiality, but I can discuss cases in general terms without identifying the parties. One current case involves 814 claimants against a single respondent, which arises from claims for breach of a joint venture agreement, and the technical problems that arise from such a large number of claimants are legion, since there is no class action procedure in arbitration, and each claimant is treated as an individual plaintiff, and some of the claimants are now disputing whether they actually intended to be joined as parties. Another interesting case is where the claimant alleges breach of fiduciary duty, fraudulent misrepresentation, and conspiracy. This is unusual, since most arbitration cases arise out of contract and usually involve contractual claims, whereas this case involves essentially tortious claims. And a third unusual case I am doing now involves questions of administrative law as it is a statutory arbitration between a telecommunications operator who is challenging a telecommunication regulatorâ&#x20AC;&#x2122;s decision to impose fines and other sanctions

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on the operator for alleged breach of the telecommunications licence. So the world of arbitration is open to very diverse situations Could you tell us more about your work as Chief Justice of the Dubai International Financial Centre Courts? How are you finding the experience thus far? Being Chief Justice is very different from being an ordinary judge, whose job is mainly to decide cases. Among other duties, a Chief Justice has responsibility for the efficiency of all his courts and judges, and has to attend to, not only legal but administrative, financial and human relations issues as well. But the experience is certainly invigorating. I enjoy making decisions, which is a change from being a professional adviser to clients who take their own decisions, but now I have to take into account broader considerations than those purely legal. It is also a challenge to apply standards we are used to in Singapore to a different country, although the DIFC courts are run on principles and practices which are essentially based on those in other common law countries, but some account has to be taken of local conditions, especially since Dubai is an Islamic and Arabic jurisdiction. On Arbitration and the Courts In a previous interview you gave to the Singapore Law Review in 2008, you mentioned that some lawyers find arbitration uncomfortable, especially if they have been trained and drilled in a different manner. Could you elaborate on the possible courses and curriculum set up to educate them? There are formal courses in arbitration theory and practice available in Singapore, ranging from the weekend courses offered by the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators to the 5 month executive part time course run by the NUS called the Graduate Certificate in International Arbitration (which starts in January every year), and numerous

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seminars and conferences organized by various arbitration bodies in Singapore from time to time. So if someone wants to learn about arbitration, there are ample opportunities to do so. But if you are talking about gaining practical experience in the practice of arbitration, then you have to work in an arbitration environment like being an intern with the SIAC or other international arbitration institution, or serving an attachment with a firm with an international arbitration practice. Nowadays, both local as well as offshore firms are engaged in international arbitration cases, so there are also good opportunities to acquire such practical experience. How does the SIAC differ from the International Court of Arbitration and other arbitration courts in terms of its processes and people? The ICC is a global organization which administers arbitrations held all over the world, and has a caseload 4 times that of the SIAC, so it has a much bigger professional staff. Also, because the ICC administers arbitrations in several different languages, the nationalities of its counsel are more diverse. The processes are not that different in the two organisations, but the ICC is famous for the detail of its scrutiny of draft awards, first by the Secretariat, then by a single member of the ICC Court (the Rapporteur), and then by the full ICC Court, so it is rare that any serious technical errors or ambiguities in the draft award which could lead to a successful challenge in a national court will be overlooked. The SIAC also exercises a level of scrutiny, but to a lesser degree because it does not have the same intensity of human resources, and this is why the ICCâ&#x20AC;&#x2122;s fees are generally higher for its premium service. What, in your opinion, are the various advantages and disadvantages of each arbitration court you have had experience working in? Would you recommend one over the other for lawyers and clients? I presume that you are referring to arbitration centres like the SIAC and the ICC. I have already reflected on the differences between those two institutions. The HKIAC is perfectly efficient in what it does, but then it is not (in an unadministered case, which is the majority of its caseload) required to do very much. CIETAC (of China) and BANI (of Indonesia) are both civil law arbitration centres and still behave as such, although their rules do allow for the application of common law procedures. Both emphasize the importance of finishing the whole arbitration in 6 months, which inevitably means truncating or eliminating processes to which common lawyers are typically accustomed. While civilian lawyers do not seem to object strongly to adopting common law procedures (Korean lawyers are outstanding in this respect), common lawyers find civil law procedures stifling to the extent that they feel their clients are being denied a fair opportunity of presenting their case. So there are two issues here for clients to choose: a) Whether they want an administered arbitration (which is offered by ICC and SIAC) or an unadministered arbitration (where the tribunal runs the show without any interference from the institution, and is the model that HKIAC normally operates) b) whether they want an arbitration adopting mainly common law procedures (with full rights of cross examination and a limited amount of document disclosure), in which case they should choose SIAC or LCIA (UK) or AAA/IDRC (USA) or are satisfied

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with civil law procedures, in which case they can still opt for ICC, or (in China and Indonesia) CIETAC or BANI (as the case may be) Experience and Education We understand that you did your undergraduate and postgraduate law courses at Oxford University. How has an international education benefitted your work in general? My Oxford education was not so much about internationalism (although I did learn both public and private international law there), since the subjects I learnt could also have been learnt in Singapore. What my Oxford experience taught me was how to live alongside Westerners as an equal, and not be intimidated by them (having come from a colony, where the prevailing attitude was still to treat Europeans with deference, if not reverence). I then went on to teach at Sydney Law School, where I had to teach students who were not used to being taught by an Asian, and that gave me further confidence in handling my relations with Caucasians in later life. Your illustrious appointments have led you to arbitrate in many countries including UK, USA, Japan, Malaysia and Egypt etc. What are your takeaways from these international experiences? It is not the nationality of an arbitrator (or advocate) that matters, but the way in which he handles himself. Lawyers and clients from all nationalities have never given me problems because of my nationality or ethnic origin, and the only thing that matters is the quality of my judgment and the way that I conduct the arbitration. On the whole, what advice would you give to law students out there eager to follow your footsteps to become an international or domestic arbitrator? Be a good lawyer first and foremost so as to sharpen your powers of analysis and reasoning. Then gain some experience of litigation practice, mainly for its advocacy skills. Then you will be ready to try and acquire experience of arbitration as an art form, to understand how it differs from domestic litigation, so that you can learn which advocacy skills are transferable from litigation to arbitration. A stint as intern with an arbitration institution would help, as would plenty of attendance at seminars and conferences (presenting papers would be a plus) and participation in young arbitrator groups (to become known to the advocates of the future who may respect you enough to nominate you). Then you have to build up a reputation either as: (a) a good advocate with a good courtroom manner that can make opponents not hate you so much that they will never nominate you as arbitrator; or (b) a great academic with some experience in practice that would make the bar think of you as an able lawyer without the baggage of possible conflicts of interest Then you need a good dose of luck to have your first break and receive your first appointment, after which you should be on your way!

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Shaping the Alternative Dispute Resolution landscape in Singapore An alternative method of dispute resolution is fast taking root in Singapore’s legal arena. BY TAN JUN YA, University of Leeds

wing to growing dissatisfaction in traditional litigation due to its adversarial nature, and unnecessary cost and delay, alternative dispute resolution (ADR), a range of procedures used for resolving disputes between parties outside court, before any formal legal proceedings have begun, has gradually grown to become more popular in the recent years. This is due to its various advantages such as reduction of costs, allowing preservation of working relationships between parties and confidentiality.

There are many different types of processes which are being regarded as methods for ADR, of which the three most popular ones are arbitration, mediation and adjudication. This article will attempt to address some current trends and propose some points which we can take note of as we attempt to further enhance the ADR landscape in Singapore. BACKGROUND INFORMATION 1 Arbitration and mediation are methods which are commonly used to resolve com56

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mercial disputes. Arbitration refers to the voluntary process of resolving disputes between parties without formal legal proceedings. Parties set procedural and substantive rules of the arbitral proceedings and will refer their differences to the arbitrators or arbitral tribunal, who are neutral persons chosen by them. Parties have to agree to be bound by the decision made and proceedings are not open to the public. Mediation on the other hand, enables parties to settle disputes outside court, with assistance from a mediator, a neutral person selected by the parties themselves, who facilitates discussion and narrows differences between both parties. However, unlike arbitration, the decision made at the end of the process is non-binding. THE TREND TOWARDS EMBRACING MEDIATION AND OTHER INFORMAL APPROACHES Arbitration had been the main ADR method used by parties in resolving commercial disputes, becoming popular due to the demand for a more informal and

less costly process. However, over the years, arbitration has become increasingly institutionalised and regulated, with the requirements of various rules and fixed procedures, insistence on due process and extensive exchanges between both parties. Changes have been so extensive that it has arguably grown to become “a wideranging surrogate for trial in a public courtroom.” 2 This causes more corporate entities to turn to mediation to resolve their disputes as they get increasingly disappointed with arbitration. In countries such as United States, businesses now tend to favour mediation as opposed to arbitration as it is seen to better fulfil the most important objectives of ADR namely, saving costs and preventing delay. Stipanowich, in his journal article3 suggested the “thin-slicing” theory as expounded by Malcolm Gladwell in his book ‘Blink’ to be the reason for this trend towards embracing informal approaches such as mediation during conflict management. “Thin-slicing” refers to the human subconscious ability to identify patterns in situations so as to enable responses Lex Loci 2011

to be made based on very quick or short “slices of experience” 4. Besides enabling us to make the various decisions that we have to make every day, this theory also demonstrates that when provided with too much information, people tend to get distracted, causing their judgement to be clouded, and as a result, lowers the accuracy of conclusions5. This means that arbitration with its requirements of a due process and extensive exchanges may therefore prove to be an inefficient process after all, thereby explaining the preference for mediation. This is because mediation allows parties to submit only essential and relevant information during discussions, hence presenting parties with an efficient and effective approach for conflict resolution, allowing them to make the best decisions at the end of the day. It therefore represents a good application of the “thin-slicing” theory as mentioned above.6 In Singapore, ADR was initially introduced to improve efficiency of the courts. However, mediation as a process for resolving disputes within communities had already existed for centuries and is in fact rooted in our cultures for the idea of maintaining peace and harmony in the society7. As mentioned by Chief Justice Chan Sek Keong in his speech for the launch of the SMU- Centre for dispute resolution8, although domestic arbitration existed ever since the enactment of the first Arbitration Ordinance in 1890, it was never a widely used process. International arbitration had not come into play before the establishment of the SIAC in 1991. In fact, mediation had always been encouraged to be used to resolve all forms of disputes (not just commercial ones) due to the values that it encompasses, and that “resolving social and community disputes through mediation will bring about a less fractious and more harmonious society”, therefore “mediation and other forms of ADR should be hardwired into our social consciousness so that it will automatically become part of our social discourse and conflict management mindset.”

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Clearly, mediation appears to be a less adversarial process, which may well be preferred over arbitration in the resolution of disputes, hence explaining the trend towards using informal approaches to resolve conflicts. However, one important point to note would be that due to the non-binding nature of mediation, certainty in dispute resolutions may be compromised, which may also lead to a waste of time and resources should a satisfactory settlement not be reached between parties at the end of the process9. To summarise, while a full information exchange between both parties and a due process is often desired for an effective resolution of disputes, it has to be balanced with the demand for speed and cost-reduction by businesses. PROBLEMS FACED IN SINGAPORE AND EXAMPLES OF OUR EFFORTS IN ENHANCING THE ADR LANDSCAPE During conflict resolution, the effectiveness of any ADR method is dependent upon factors such as the existing contractual arrangements between parties, the nature of the national legal system of which the method is subjected to and the existence of any international agreements between jurisdictions. The more important factor has to be the national legal system since it is crucial in determining the validity and effectiveness of the ADR agreements.10 Therefore, the Singaporean government has been keen in taking steps to improve our legal system to better facilitate dispute resolution through ADR methods.

While a full information exchange between both parties and a due process is often desired for an effective resolution of disputes, it has to be balanced with the demand for speed and cost-reduction by businesses.

Examples of efforts of regulation include the passing of statutes such as the Arbitration Act 1953 and Order 69 of the Rules of Court to regulate domestic arbitration, and the International Arbitration Act 1995 and Order 69A of the Rules of Court to govern international arbitration. These acts help to resolve potential problems faced by parties such as refusal of participation in ADR despite having agreed to do so. 11

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ADR is often seen to be a better option than traditional litigation. The Singaporean court system is also generally known to be efficient as compared to other jurisdictions such as Mainland China and Malaysia. This means that arbitration proceedings face another challenge of being even longer than formal legal proceedings12. As such, arbitral institutions are constantly driven to innovate, ensuring that the arbitration process is streamlined via rules and legislations to increase the speed of the process13. An example would be the change in the SIAC Rules 2010 for the provision of an expedited procedure and also allowing for the application of emergency interim relief by parties before full constitution of the tribunal, thereby increasing efficiency. Singapore courts are also not allowed to interfere in arbitration processes, though provisions in both arbitration acts empowers courts to play a supportive role to aid in the effective resolution of conflicts 14. CONCLUSION ADR is often seen to be a better option than traditional litigation, as it provides

parties with choice and considerable flexibility, confidentiality, and proceedings tend to be faster and more cost-effective which therefore allows parties to save time and money. However, it is not without its flaws and there is a need to balance conflicting interests. The need for an extensive due process for better credibility in binding processes such as arbitration has to be balanced with the demand to reduce costs and delay by businesses, of which is better met by the non-binding processes such as mediation. On the other hand, nonbinding processes tend to compromise certainty in the resolution of disputes, which may lead businesses to contract to use ADR methods in sequential tiers, which could possibly leading to the waste of time and resources should a satisfactory settlement not be reached at the end of the process 15. With increasing numbers of cross-border financial transactions or collaborations, resolution of disputes and conflicts have been made more complicated, as possibly, several legal jurisdictions could be involved. This would mean that demand for international arbitration services worldwide would be on the constant rise in the next few years. Living in the age of efficiency, there would also be a constant demand for cost-effectiveness and efficiency in the resolution of conflicts; hence, ADR would get increasingly popular. Therefore, it is crucial to

This section is written with information drawn from ‘Alternative dispute resolution in Singapore’, Ministry of Law,<http://app2.mlaw.gov.sg/UsefulInfo/AlternativeDisputeResolutioninSingapore/Overview/tabid/286/Default. aspx> and Joel Lee Tye Beng, ‘The ADR movement in Singapore’ in Kevin Tan(eds), The Singapore Legal System (NUS press, 1999) 2 Thomas J. Stipanowich, ‘Arbitration: The “New Litigation” ’ University of Illinois Law Review, Vol. 2010, No. 1, 2010, Pg. 9 3 ibid, at 25 4 Malcolm Gladwell, Blink 22-23 (2005) 5 Thomas J. Stipanowich, ‘Arbitration: The “New Litigation” ’ University of Illinois Law Review, Vol. 2010, No. 1, 2010, Pg. 25 6 ibid, at 26 7 Tan Ngoh Tiong, Lee-Partridge Joo Eng, Sharon Koh, Gilbert Tan, Chia HoBeng, Joel Lee, Ngiam Tee Liang, Lim Lei Theng, ‘ADR – Current and Future Prospects’ in Tan Ngoh Tiong and Lee-Patridge Joo Eng(eds), Alternative Dispute Resolution In Business, Family and Community: Multidisciplinary Perspectives (Pagesetters Services Pte Ltd 2000) 1

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examine the trends and problems that have surfaced. Through learning from past mistakes faced by other jurisdictions with more experiences of dispute resolution through ADR processes such as the United States and the United Kingdom, as well as problems currently faced in Singapore, we can then seek to further enhance the ADR experience for a more effective conflict resolution process, bearing in the mind the fact that the central difference between ADR and litigation would be choice and flexibility that are being offered to parties 16. The development of the ADR scene in Singapore has been extensive, with the number of cases settled increasing steadily over the years. In further improving the ADR landscape, Singapore may therefore need to be cautious in the regulation process to prevent arbitration from becoming too similar to litigation, and in striving to strike a good balance between conflicting interests of parties, ensuring that increased efficiency in the ADR processes will not compromise certainty and credibility which are of utmost importance. Hopefully, with better initiatives being introduced after close examination of the problems currently faced by parties during ADR processes, we can look forward to an even more vibrant ADR scene in the near future.

8 < http://app.supremecourt.gov.sg/default.aspx?pgid=2841&printFriendly=tr ue> accessed 20 March 2011 9 Evelyn Ai Lin Teo and Ajibade Ayodeji Aibinu, ‘Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration’ (2007) 133 Journal of Professional Engineering Education and Practice 148 10 ibid 11 ibid, at 150 12 ibid, at 155 13 ibid 14 ibid 15 Evelyn Ai Lin Teo and Ajibade Ayodeji Aibinu, ‘Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration’ (2007) 133 Journal of Professional Engineering Education and Practice 148 16 Thomas J. Stipanowich, ‘Arbitration: The “New Litigation” ’ University of Illinois Law Review, Vol. 2010, No. 1, 2010, at p.58

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Multiply Your Potential Wong & Leow LLC offers a number of Training Contracts each year to graduates with the requisite academic qualifications and attitude.

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Who we are

In addition to our Trainee programme, Wong & Leow LLC offers internships to provide you with a real insight into what it is like to work with us and help you make an informed decision about your future. We invite you to meet our people, learn about our work and discover the opportunities we offer.

Wong & Leow LLC is a Singaporean law firm. We work closely with Baker & McKenzie.Wong & Leow, a joint law venture between Baker & McKenzie and Wong & Leow LLC. This enables Baker & McKenzie.Wong & Leow to advise clients on domestic and cross-border issues as one of the few full service law firms in the country. Baker & McKenzie has offices in 35 of the world’s 50 largest economies, representing 85 percent of the world’s GDP. Through Wong & Leow LLC, we have full rights of audience before the Singapore courts. This combination of our unparalleled global coverage and extensive local knowledge – gained from 30 years of operating in Singapore – enables us to advise our clients on both domestic and international law.

What we offer

Ready to be included? For more information, head to our website or contact Victoria Oddy by email at victoria.oddy @bakermckenzie.com

Our Trainees get the best of both worlds: a thorough grounding in Singapore law and practice together with exposure to multi-national clients and the opportunity to exchange knowledge with the best legal minds from all over the globe. In addition, we incorporate Baker & McKenzie’s global Talent Management platform into our comprehensive Trainee program; it is designed to help our Trainees develop as far and as fast as their talent and drive will take them by: • working with each Trainee to create an individual development plan and personal career goals; • clearly describing the skills and personal qualities a Trainee needs in order to be successful at each stage of their career; • assigning each Trainee an Associate Mentor in addition to a Supervising Solicitor to oversee their on-the-job and formal learning; and • providing each Trainee with training in the technical and professional skills they need. Baker & McKenzie. Wong & Leow is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly reference to “office” mean an office of any such law firm.

A Communion of Thoughts Law Students share their dreams and visions for the Singapore legal scene increasingly characterised by change

The legal service is constituted and defined by its people. As it stands, it is an effective institution providing a unique sphere of job opportunities for individuals who find it suits their sensibilities. With the increasing popularity of a legal education, more and more of my talented peers are entering the academic study of law, with a view of becoming a lawyer.

“If the legal service can focus on ensuring that the opportunities it provides engages the hearts and minds of young Singaporean lawyers, I believe that it certainly has the potential to be even more excellent than it currently is.”

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This bodes well for the future - a constant, ever-increasing stream of able young lawyers eager to make a contribution in their own way can only increase the standards of the service. However, competition for talent from the private sector both locally and overseas is ever increasing. It thus seems imperative to ensure that the jobs the legal service offers remain financially competitive, intellectually challenging, and fulfilling. It is undeniable that without the billion dollar deals, financial compensation can never be exactly matched. Instead, if the legal service can focus on ensuring that the opportunities it provides engages the hearts and minds of young Singaporean lawyers, I believe that it certainly has the potential to be even more excellent than it currently is. Jamie Pang, Oxford Year 1

“They bring an international dimension to the local market and considerable expertise.” I hope to see further liberalization of the legal sector to allow foreign law firms a greater presence in Singapore – particularly in terms of the number of firms granted licenses to practice Singapore law, as well as their being able to offer local training contracts. They bring an international dimension to the local market and considerable expertise, which will enhance Singapore’s reputation for the provision of legal services. It will also help Singapore to draw the best legal talent from all over the world, and open up more opportunities for locally qualified lawyers.’ Kerry Chan, UCL Law

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“N

ot seeing pro bono as merely something to put into a portfolio or part of a promotional strategy to improve the reputation of the firm, but truly as a meaningful tool to provide some measure of relief to the less privileged.”

‘Singapore is maturing as a developed country and there will be growing needs for a broader, simpler and more efficient system of human rights protection. Whilst substantive rights are guaranteed by the Constitution, the legal service can certainly play a more prominent role in ensuring that these rights remain accessible to all Singaporeans. In 2020, I envisage a more comprehensive and proactive system of legal aid.

“Instead of helping only those who seek legal assistance, the legal service will reach out to people who are not aware of the rights they are entitled to.” Instead of helping only those who seek legal assistance, the legal service will reach out to people who are not aware of the rights they are entitled to, especially in the areas of administrative and employment law. The Legal Aid Bureau will not only continue to be the centrepiece of pro bono services but be endowed with more resources to command a larger arsenal of legal service offices functioning in regional offices island-wide.’ Lu Zhengyou, UCL Law

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“I think the legal profession, despite all its claims otherwise, is not very different from what people generally stereotype it to be – an uncaring, money-grubbing system. Personally, I’d love to see the legal profession develop more of a heart towards helping those who may not be able to afford legal services but at the same time should not be denied access to it. The pro bono services offered by the big firms in Singapore now are commendable but still lacking and there is definitely room for improvement. Although possibly idealistic, it’d be nice to see a change of attitudes amongst lawyers as well – not seeing pro bono as merely something to put into a portfolio or part of a promotional strategy to improve the reputation of the firm, but truly as a meaningful tool to provide some measure of relief to the less privileged.” Anonymous, LSE law 2nd Year “As it stands, the legal profession in singapore seems less adept at handling clients socially, lacking a lawyer’s equivalent of “bedside manner”, hopefully in the future this will change and legal services in Singapore will cease to be purely dispensing specialised advice and become more of a service.”

Hopefully legal services in Singapore will become more of a service.

Ng Chu Ting, LSE Law 2nd Year

© Ben Heine | www.benheine.com Singapore’s legal system has always strived towards the ideal of efficiency. The approach of the current bench reflects a desire for a reduction in protracted litigation. I believe that in the future, legislation and mechanisms would be set in place in order to promote mediation, settlements and arbitration.

“The approach of the current bench reflects a desire for a reduction in protracted litigation.” This would allow a hasty resolution of domestic issues and prevent a majority of lengthy and complex commercial cases, which often revolve around factfinding and jurisdictional issues, from over-taxing the courts. In support of this, the digitalisation of certain court procedures is on an uptrend. Therefore, it is likely that, in the future, a majority of procedural issues could be accomplished by the utilisation of electronic measures such as e-conferencing. Bernard Ng, University of Nottingham

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Taylor Wessing Commercial Challenge Experience By Amanda Soh | Ang Ann Liang | Victoria Chong | Chua Fang Lin University College London

© Ben Heine | www.benheine.com Apart from mooting, commercial awareness exercises are another platform for increasing a law student’s awareness of the realities of the legal work scene. The name itself conveys very little: unlike mooting competitions, commercial awareness exercises are extremely varied and can take the form of charting business strategy to negotiating contracts and writing pitch proposals. The Taylor Wessing Commercial Challenge was organized for the second time in November 2010 and it was open to participation by both law and non-law students at any stage of their undergraduate studies. In teams of 4, participants were expected to take on the roles of lawyers from Taylor Wessing LLP pitching for the opportunity to work on a new deal based on a real transaction Taylor Wessing LLP had worked on that year. 62

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About the Competition The scenario given in the commercial deal involved a major high-tech company considering a buy-out of a software companywhich had developed a unique piece of high-tech software. Henceforth, the purchaser was looking for the legal advisors most capable of representing their interests and concerns during the buy-out. The competition comprised two rounds. The first involved submitting a written pitch to the purchaser, explaining why Taylor Wessing LLP is the most well placed to advise the purchaser in a smooth buyout of the software company. Prior to constructing the written pitch, we were given an opportunity to hold a conference call with a lawyer from Taylor Wessing LLP who acted as the CEO of the purchaser. The purpose of the call was to

provide us with a better understanding of the purchaser’s concerns and priorities. For instance, we managed to ascertain whether the purchaser should carry out a share sale or asset sale, and the assets of the software company which the purchaser was seeking to gain through the transaction. With this, we were able to chart the route to adopt to achieve the purchaser’s goal. Our hard work paid off as we emerged one of the top three finalists out of 42 teams. The final round entailed us giving an oral presentation of our pitch to a board of senior Taylor Wessing LLP lawyers including senior partner Martin Winter and Tim Campbell (Winner of the first The Apprentice UK Series). We were also given a guided tour of the premises of the firm. We found the firm to be an ideal environment to work in and we were Lex Loci 2011

especially impressed by the professional yet welcome atmosphere. We also attended networking sessions with the trainees and associates of Taylor Wessing LLP. Our Experience Pursuant to the various concerns that the purchaser had, we divided ourselves accordingly; Amanda and Ann Liang worked on the commercial clauses of the buyout (including methods of buyout, warranties and indemnifications) and corporate due diligence, Victoria worked on Employment Incentives and Fang Lin worked on Intellectual Property law. This enabled us to diversify and have a better grasp over what was formerly an entirely foreign aspect of law to us. Through in depth discussions and constructive suggestions, we built on each other’s research. Amanda’s prior work experience in Bank of America Merrill Lynch also proved to be helpful and informative in explaining the deal dynamics and in raising commercial questions which come from the finance perspective.

The Q&A session that took place after our presentation was somewhat akin to mooting. The judges grilled us with difficult questions that we had to respond to on our feet, including in areas such as tax law of which we had no prior legal knowledge. This was where additional research came in useful as we had read up on how the deal may work and noted that if a company was based in the UK, it would be doubly taxed for profits both in the UK and for the country in which the profit was made. Our team, consisting of seasoned mooters, managed to hold our ground. Although we were not the champion team, we were nonetheless very encouraged by this experience and we urge more budding solicitors to participate in commercial awareness exercises like the Taylor Wessing Commercial Challenge. Find out more about a career with Taylor Wessing LLP at www.taylorwessing,com/graduate.

About the Firm Taylor Wessing LLP is a leading law firm providing legal support for commercial organisations doing business in Europe, China and the Middle East. They are a full service law firm, specializing in the areas of: • • • • •

Technology, communication and brands; Life sciences and healthcare; Energy and Environment; Real Estate and Infrastructure; and Financial Institutions and Services.

Taylor Wessing LLP is very highly regarded in commercial circles and has earned numerous awards and resounding praise from its clients for its efficiency, deep seated expertise and invaluable advice.

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Reverse Engineering: Science Into Law By Mildred Kwok, London School of Economics

Dr Wong Kien Keong is a principal of Baker & McKenzie. Wong & Leow. He focuses on tax, mergers & acquisitions, joint ventures and private equity. He was once the chairman of Baker & McKenzie International’s (“BMI”) Asia Pacific Regional Council, a member of the Global Executive Committee and the Global Policy Committee. He established the local member firms of BMI in Singapore and Malaysia, was the chairman of the member firms of Singapore, Malaysia and Indonesia and pioneered and led the private equity practice of BMI during his long career there. Dr Wong studied in both the UK (University of Oxford & Imperial College) and the US (Massachusetts Institute of Technology), and is qualified to practice in three countries: Singapore, Malaysia and England & Wales. We are privileged to have him share his thoughts with us. Career We gathered from an interview you gave to Lucinda Maguire for ALB TV Singapore, that you initially studied engineering and management, before switching to law. Please share with us what made you choose a legal career over a career in engineering. It was first the challenge and excitement of switching from a mathematically oriented profession to a verbally oriented profession that caught my imagination when I switched to law. Secondly, I have always been interested in the way corporations are organized, function and conduct their businesses and affairs. Law provides this opportunity and understanding to pursue a discipline which goes right into the fabric of most societies. Practicing law demystifies law and a society’s framework of operation. How has your background in science aided you in your legal career? The methodology of approach for both are similar. For example, in mathematical science you think of the universe, sets, overlapping sets and sub-sets. In law you think of scope, overlapping scopes, scope within a scope, exceptions and limitations. Both professions require analytical thinking and some creativity. It is of course easier for a scientist to adapt to the study and practice of law than it is for a verbally oriented person without a scientific background to adapt from law to science. There are nevertheless lawyers who take up degrees in science to practice intellectual property law, for example. The clarity of thought that is part of the discipline of science does help in the practice of law. It does not mean that lawyers who do not have a scientific background cannot have clarity of thought. It is just that it is perhaps easier for a person of science to distill 64

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the essence of a problem or issue in the law, and then provide a solution, if he/she were also a lawyer. This is not because of any superiority of intelligence, which should not differ between the brightest and best in every profession, but because of the training. Scientists tend to seek solutions to problems. Lawyers when confronted with a problem tend to think of other problems and eventualities that could arise from any solution to such a problem. Scientists hypothesize, experiment to test the hypothesis, observe and infer from the observations, refine the hypothesis and eventually crystallize a theoretical principle, applying detailed mathematical analyses and calculations where necessary. The theoretical principle is then used to explain a natural phenomenon experienced or observed and to predict future phenomena or occurrences. The common law in some sense does this but always ex post facto, i.e. based upon facts, inferences from facts and evidence of a case to arrive at a legal principle. The legal principle is applied, sometimes inflexibly to all other cases which are similar, unless distinguished or overturned by a subsequent court or changed/ amended by the governing body by way of statutory law (or codes), i.e. Parliament in the case of Singapore and many other countries. Where it differs from science is that a legal principle is invariably derived ex post facto and is based usually on approximations. Science also has approximations but is inclined to be more exact. It is said that the law is blind. Where it is clear, i.e. black and white, there are no approximations. For example, a time bar is a time bar. The weak, ignorant or poor could not rely on justice to overcome a time bar to their claims in court. Lex Loci 2011

This could lead to injustices or inequitable treatment, which can hopefully be rectified by law reforms or evolution of the principle giving rise to such “blindness”. Having studied in both UK and the US, please share with us your thoughts on your student experiences in both countries, and which country you enjoyed your time in more. Both experiences are unique and enjoyment cannot be compared or measured such that I would have a preference of one over the other. My experiences occurred when I was at a different age in each of these two countries. If I could be 18 in both countries and experience life as a student simultaneously (which of course is impossible), there could be some basis for a subjective selection or preference. American education is expressive and stresses creativity and individuality. It usually has a core, i.e. a major, around which you add “dressings” and if the “dressings” are large enough, they become “minors”. Indeed they could be another “major”. I actually had two majors, graduating with two entirely different bachelor degrees, one in chemical engineering and the other in management science. University courses were like candy in a candy shop. I was fascinated by the opportunities and the selections available. My unbridled curiosity may have given rise to a lack of focus on occasions. If I were more charitable to myself, it exposed me to a diversity of human knowledge and endeavours. This is neither good nor bad. It has a value. British undergraduate education is more structured and programmed. It is focused and perhaps more specialized. Lawyers cannot be lawyers without going through an undergraduate degree in the US, while in the UK, lawyers start their legal studies right away, usually at 18 or 19. If one can generalize, it would be that an American undergraduate education stresses breadth while a UK undergraduate education stresses depth rather than breadth very early on. I enjoyed both as they were equally challenging in different ways. Tutorials sessions at Oxford coupled with voluntary attendance at lectures, and large lecture halls at MIT with tutorials to provide the closer contact with faculty – they each have their strengths, weaknesses and appeals. What are the pros and cons of working in an international law firm? An international law firm, by the very fact that it operates across borders, would have mainly larger corporate or corporate-type clients which venture to more than one country. The transactions would be larger, less personal and may not have as much interactions with the entities or persons in the domestic jurisdiction where one resides. It is an experience for those who seek friendships and professional relationships across borders, have an international worldview and perspective and have an inclination or ability to handle cultural diversity well. It is not as glamorous as it may have been painted to be. Travelling across borders, while interesting initially, may impose a real wear and tear on the body, mind and soul if pursued for an extended period of years. On the Practice of Law What has been your most memorable case to date, and why? It was a simple environmental case early in my career where I Lex Loci 2011

acted for a corporate client. I asked only one question of the hostile witness in court. Then I closed my case. I managed to obtain the order I wanted from the trial judge based on the evidence adduced from that question. I would call this a “killer” question. It did require a scientific background to be able to size up the crucial issue at stake and to ask the right question. Alas, I did not quite pursue a career in litigation. If I did, I probably would not have ended up in a global law firm, at least during the earlier part of my career. Why have you chosen to specialize in the areas that you practice in (tax, private equity, mergers & acquisitions etc)? The choice was based upon my training (engineering, management and law) and inclination, the strategic demands of my firm (which change slightly with time) and the client pool that we serve. What do you think is the most important ingredient one needs to have in order to be a successful corporate lawyer? One needs to have a solution-oriented approach to all clients’ problems and issues which is workable, fair to all concerned and economically feasible. Which do you find more challenging, and why: practicing law or managing lawyers? Working with clients is certainly more aligned to one’s training as a lawyer than managing lawyers, which may not necessarily be intuitively obvious. Client work deals with the minutiae and specific facts and requirements. Management deals with a more wholistic and longer term approach, applying strategy, implementation and careful glueing of human resources such that they all work in unison to achieve agreed objectives. Lawyers, like most professionals, are highly skilled, intelligent and motivated. But they are capable of holding very different views of the work environment. Building consensus among them would be the challenge of most leaders of law firms. What areas of law in Singapore do you foresee as areas of growth for Singapore’s legal sector? Dispute resolution, wealth management and corporate & securities work, including tax. We heard that you are extremely supportive of pro-bono work. Do you think Singapore law firms are doing enough to contribute back to society? Probably not enough. It should be in the strategic and business plan of every law firm, this pro bono imperative. General Questions 1. What are your hobbies/interests outside of work? Gym, yoga, reading broadly, parenting my young child and participating fully in family life. 2. How do you effectively maintain a healthy work-life balance in the extremely fast-paced and competitive field that is law? Exercise reasonable discipline, judgment, self control and prioritization of tasks/objectives.

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Changes In The Singapore Legal Landscape: 2011 And Beyond Some advice for prospective lawyers to ride the waves of change and capitalise on the myriad of opportunities. BY ALVIN CHEN, Chief Legal Officer, Law Society of Singapore

hen Singapore legal historians look back at the year 2011, they will remember it for many things – the implementation of the new conveyancing regime which prohibits lawyers from holding conveyancing money in client accounts, the establishment of the Singapore Institute of Legal Education to raise the bar for legal training of Singapore lawyers, the revised streamlined procedural framework for admission to the Singapore Bar and the first batch of law graduates from the School of Law of the Singapore Management University.

But if there is one theme that underlies all the changes to the Singapore legal landscape in 2011, it is that we are on the cusp of an increasingly diversified legal economy, a “brave new world” where inertia and staying in one’s comfort zone will fast become relics. Let me give a few examples. First, the Bar course has been significantly revamped with an improved syllabus, including an option for students to choose elective subjects which fit with their proposed area of practice. With greater customization of courses, prospective lawyers will have to hit the ground run-

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ning in legal practice more quickly. Second, one of the highlights of the revised admissions framework is that practice trainees can be “part-called” after serving at least 3 months of the practice training period and would be able to appear in the Singapore courts for all types

As far as Singapore legal practice is concerned, one of the greatest seismic shifts in recent years is the implementation of a tighter conveyancing regime. of hearings. Under the old regime, practice trainees could only be “part-called” after serving at least 4 months and were limited to appearance in Court in certain categories of hearings. Again, prospective lawyers can expect to get into the hurly-burly of legal practice faster.

Third, lifelong learning will soon become a reality for Singapore lawyers. Lawyers will no longer be able to rest on their laurels where Continuing Professional Development (“CPD”) is concerned. Plans are afoot to commence a CPD Scheme where lawyers will be required to earn a prescribed allocation of CPD points in order to renew their practising certificates for the next year. In particular, it is proposed that newly-qualified lawyers will have to accumulate a higher number of CPD points in each of their first five years of practice, as compared to more senior lawyers. Alongside these changes, the liberalisation of the Singapore legal sector continues incrementally. This year will see the introduction of a new foreign practitioner certificate scheme to allow foreign lawyers to practise Singapore law in permitted areas of practice in Qualifying Foreign Law Practices, Joint Law Ventures and Singapore law practices. They will not hold practising certificates as such, but will need to register with the AttorneyGeneral after passing a Foreign Practitioner Examination and satisfying the eligibility criteria and requirements. As far as Singapore legal practice is con-

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cerned, one of the greatest seismic shifts in recent years is the implementation of a tighter conveyancing regime which will give greater protection to buyers and sellers of properties. With few exceptions, all conveyancing money must be placed in specially regulated conveyancing accounts operated by certain entities approved by the Minister for Law. Withdrawals from such accounts require the signature of a counter-signatory from another law practice and any contravention of the new rules could attract a maximum of three years’ imprisonment or a fine of up to $50,000 or both.

Alvin Chen

What do all these domestic changes, let alone the proliferation of cross-border transactions and an increasingly globalized world, hold for the prospective law graduate beyond 2011? One thing is for certain – if you cannot adapt, it is unlikely that you will be able to find a niche in the far more competitive legal landscape. I will leave you with three points to think about on your road to graduation: Use every opportunity to learn as much as you can about the law and other disciplines. More importantly, apply what you have learned as soon as possible. The issues that you will face in the future are most likely to require creative transplantation of ideas from one discipline to another. International and comparative law subjects will not only open a door to regional and international practice, but will also give you the necessary breadth to draw analogies and highlight differences between Singapore and other legal systems with confidence.

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Study how other jurisdictions have dealt with novel issues that are just beginning to take shape in Singapore, be it data protection, casino control or online gaming. Learning how to modify and adapt traditional legal doctrines to new

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situations is an invaluable skill in legal practice, where you will be confronted with numerous problems where no court or lawyer has ever gone before. You will also be well-placed to be a thought leader in your chosen area of practice. Develop a sound philosophical worldview through studying jurisprudence or legal ethics to deal with the myriad ethical challenges that you will face in legal practice and to understand the role of law in society. With increasing competition and commercial imperatives, you will be put under greater pressure to forego your professional obligations as a lawyer in exchange for short-term success. Without a strong jurisprudential or ethical compass, you will be like a reed in the wind which can be blown away easily. Remember that legal practice is a marathon and the only valuable asset that you have is your professional reputation. ■

Remember that legal practice is a marathon and the only valuable asset that you have is your professional reputation.

Alvin Chen Chen* Chief Legal Officer Director, Representation and Law Reform The Law Society of Singapore E-mail: alvin@lawsoc.org.sg *The views expressed in this article are the personal views of the author and should not be taken to represent the views of the Law Society of Singapore.

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A Uniquely Singapore Law During the recent Singapore Academy of Law Conference 2011, the Chief Justice, Chan Sek Keong, called for the building of a legal system independent from English law - the ultimate objective being the building of a ‘large body of local jurisprudence’ enabling ‘local decisions can be cited first’. In this article, the author re-examines the advantages and disadvantages of this proposal. BY MANSOOR AMIR, University College London

he law of Singapore, as defined by Section 2(1) of our constitution, includes the ‘written law(s) and any legislation of the United Kingdom’. This is hardly surprising considering that we started out as a British colony in 1819. However, what would surprise a majority of Singaporeans today is that before modern Singapore was founded by Sir Stamford Raffles, there was no known system of law in operation that applied universally to all who lived on the island. We were almost in a state of ‘legal chaos’. 1826, however, saw the promulgation of the Second Charter of Justice which has been traditionally regarded by most as having effected the reception of English law in Singapore. It is therefore almost inevitable that English law continues to cast a shadow over our legal landscape even today.1

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In November 1993, Parliament passed the Application of English Law Act2 which lists the English statutes that continue to apply in Singapore. On the one hand, this Act reaffirmed the place of English law in our society but on the other, it repealed section 5 of the Civil Law Act 3, underlining the independence of our legal system and clarifying the extent to which English law continued to apply in Singapore. Today, the English common law is in force only so far as it is applicable to our circumstances and only the statutes that are listed in the Schedules to an Act continue to apply. This Act, in effect, set the stage for the development of a uniquely Singapore law through the next century. The 1970’s and 1980’s was a period with an implicit level of ‘casual comfort’ with the inherited laws of England. However, the

move towards an autochthonous legal system gained momentum in the late 1980’s, coinciding with a period of intensive constitutional remaking which saw the development of an autochthonous government and parliamentary system4. For example, during the second reading of the Application of English Law Bill in 1993, Professor S. Jayakumar explained that there was a desire for the laws of Singapore to be independent from that of England. This notion was also strongly asserted in Re Millar Gavin James QC5 where it was held that a foreign lawyer was unable to understand the laws of Singapore because of our unique circumstances. Focus on this issue has been renewed in light of our Chief Justice’s most recent comments during the Singapore Academy of Law Conference 2011. During his speech, he echoed many before him and called for the building of a legal system that was independent from English law - the ultimate objective being the building of a ‘large body of local jurisprudence’ allowing local decisions to be ‘cited first’ as was the case in Australia. 6This article re-examines the advantages, disadvantages and the challenges that await us as we continue our journey down this road.

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HOW FAR HAVE WE COME?7 Before progressing further, it would be useful to recap how far down this road we have come: 1993 ■ Appeals to the Privy Council are abolished. ■ The Court of Appeal was designated as Singapore’s highest court. ■ Application of English Law Act comes into force and specifies the extent to which English law is applies in Singapore.

was thus not surprising when appeals to the Privy Council were abolished just a year later in 1994, as noted above. These factors contributed towards the divergence of our two legal systems. If we were to compare our experiences with that of Australia, one of the countries that succeeded in building up its own body of local jurisprudence, we note various similarities. Over the period of more than 20 years, several key cases led to the divergence of English and Australian law. 1963 saw the High Court of Australia holding that it was not bound by the decisions of the House of Lords9 and 4 years later, the Privy Council acknowledged that it was open for the High Court to do so.10 In 1986, all appeals from the Australian courts to the Privy Council were abolished.11 In 1988, the Judiciary Act 1903 was amended to refer to the ‘common law of Australia’ rather than the ‘common law of England’.12

“There has been a realization over these years that Singapore has to develop its own responses to its own legal problems.” 1994 ■ The Practice Statement on Judicial Precedent declares that the Privy Council, Singapore’s predecessor courts and the Court of Appeal’s prior decisions no longer bound the new Court of Appeal. ■ It reasoned that ‘[t]he development of law should reflect these changes [that political, social and economic circumstances have changed enormously since independence] and the fundamental values of Singapore society’. During this period, there was on one hand an increasing confidence in the growing maturity and international standing of Singapore’s legal system. On the other, there was the worry that Britain’s links with the European Union would render English law incompatible with local developments. The then Chief Justice Yong Pung How pointed to “[t]he fact that the European Community law…now binding on English courts, [would] progressively change the outlook of the English courts and judges” and that hence, our reliance on the Judicial Committee of the Privy Council as the highest appellate court could not be continued ‘indefinitely’.8 It

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THE UP SIDE An autochthonous legal system is vital to any society for a number of reasons. It ensures that the law is in harmony with its customs and traditions, the needs of its people along with their hopes and aspirations. Fundamentally, the law should reflect the prevailing values of a people. As noted by the previous Chief Justice Yong Pung How almost 16 years ago:

“There has been a realization over these years that Singapore has to develop its own responses to its own legal problems; Singapore has to develop a legal system that is autochthonous, that grows out of its own soil. But autochthony does mean that we will have to be willing to part ways with England, whenever necessary. To some extent, we have already done so... We must continue to evolve our own rules

of procedure, suited to our urban, multiracial, multi-linguistic, Asian society. Our approaches to the law must reflect our own Asian values, such as consensus and respect for authority and the group. We must be willing to adopt new technologies which will assist in the effectiveness of our legal system; we cannot be Luddites, forever fearful of the new.” 13 For example, the Prime Minister’s justification for retaining s377A of the Penal Code14 was based on the fact that Singapore, unlike other countries, still remained largely conservative and that a heterosexual, stable family continued to be the social norm and that the majority of Singaporeans wanted to maintain the status quo. Similarly, it should be noted that our stringent local laws relating to corruption, chewing gums, drug trafficking and vandalism have no counterpart in English law. With independence, the legitimacy of our legal system will be enhanced as the legal profession begins to play a greater role in charting the direction in which the law of Singapore develops. This will not only create a sense of ownership and national pride but will also reinforce the spirit of professionalism within the profession. BUT... However, while the law of any society is a culture specific phenomenon, this does not immediately justify an insular approach towards the development of our jurisprudence. Legal principles should not be rejected simply because they originate from a different jurisdiction. It should be remembered that the English common law with its history of over 800 years has served us very well indeed thus far. In the area of commercial law, in light of increasing globalisation and a greater level of international commercial transactions, there is a need for the commercial laws of countries to be as ascertainable as possible and in this regard, the English law has

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served us especially well. As Yong Pung How CJ noted: ‘We inherited from the British a system of law which is familiar to most, if not all, international businessman and corporations. What the law in Singapore is, is readily ascertainable.’ 15 At the end of the day, it is unanimously accepted that the English system is one that is much more mature than ours. Its courts will always be faced with a much wider variety of cases and their body of case law will consequently be much richer. There will always be something that the Singapore legal fraternity can learn from the English. However, these principles, when found to be viable and suitable to our needs, should not be applied blindly. Rather, they should first be subject to a rigorous legal analysis and be tweaked and adapted to our needs accordingly. As noted by the Chief Justice, this approach would require a much ‘greater’ effort as compared to the relatively easier task of continuing to apply English decisions. CHALLENGES As we prepare to go down this path and emulate the Australian model, we have to be aware that this path will not be free of obstacles. One of the reasons for Australia’s success in diverging from the English common law is its much larger pool of lawyers. The Australian legal profession employs almost 10 000 16 people as

CONCLUSION

The legal fraternity will first have to come together united by the belief that this needs to be done and can be done. Lawyers must be willing to challenge themselves and dare to be more creative. They must be willing to break away from the status quo. They must be willing to develop and put forward arguments that they truly believe in, ones which they believe to be the right approach for Singapore to adopt, even if these are not based on precedent but on policy.

Today, as we celebrate our nation’s 46th birthday, we are undergoing a period of rapid economic, political and cultural transformation. We are just only beginning to recover from the effects of the global financial crisis. We have only just voted in what was a ‘watershed’ general election. And as the number of foreigners on our island begins to increase, we are now, more than ever, looking inwards and reflecting on what truly is the Singaporean identity.

Likewise, the judiciary must not only be more open and receptive to such arguments, but also encourage it. Judgments of the court, while already available, should be written in simpler language and made more concise such that even the non-legal mind can easily understand them. This will set the stage for a public that can be more engaged in the legal landscape by enabling them to constructively debate legal issues. This would thus also require the media to play a more active role, re-

A nation’s legal system is a defining factor of its identity. Set against this backdrop and as we prepare to move into the next decade, it is vital that the legal fraternity as a united whole make a concerted and sustained effort to develop our own unique brand of Singaporean law. While this is an ongoing process that will never end, the efforts of our generation today will leave indelible footprints on this path. towards autochthony that future generations will follow.

It should be noted that although some areas of our law have their roots in other jurisdictions. The Penal Code and the Evidence Act are Indian in origin, while the Companies Act borrows heavily from Australian legislation. 2 Application of English Law Act (Cap 7A, 1994 Rev Ed) 3 Civil Law Act (Cap 43, 1988 Rev Ed) 4 Singapore Legal System (SingaporeLaw.Sg, 25 September 2007) < http:// www.singaporelaw.sg/content/LegalSyst.html > Accessed 14 July 2011 5 [2008] 1 Sing. L.R.(R.) 297 (H.C.) 6 Developments in Singapore Law 2006-2010 (SupremeCourt.Gov.Sg, 24 February 2011) < http://app.supremecourt.gov.sg/data/doc/ManagePage/3704/ Opening%20Address%20by%20Chief%20Justice%20Chan%20at%20 the%20SAL%20Conference%202011.pdf > Accessed 14 July 2011 7 Singapore Legal System (SingaporeLaw.Sg, 25 September 2007) < http:// www.singaporelaw.sg/content/LegalSyst.html > Accessed 14 July 2011 8 Speeches and Judgments of Chief Justice Yong Pung How (FT Law & Tax Asia Pacific, Singapore, 1996) ‘Speech Delivered at the Opening of the Legal Year 1993 – 9 January 1993’, pp78 9 Parker v The Queen (1963) 111 CLR 610 at 632-3 10 Australian Consolidated Press Ltd v Uren (1967) 117 CLR 221 at 241 11 Australia Acts 1986 (Cth) and (UK), s11 1

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porting and analysing in greater depth the decisions of the court. Of course, the academics will also need to be more willing to creatively but constructively analyse and critique the decisions of our courts in the context of the circumstances of our society. With everyone playing their part, this journey towards an autochthonous legal system will be made much easier.

compared to Singapore’s’ 4000. 17 We are indeed a small jurisdiction and developing our own body of local jurisprudence will indeed be an ‘immense task’ requiring a ‘sustained intellectual effort by the courts’. 18 The case of Australia, whose divergent efforts began almost 30 years before us, while demonstrating that this journey is not going to be an easy one on one hand, on the other, it shows us that it is not an impossible task.

Adams v ETA Foods Ltd (1987) 19 FCR 93 at 95 Speeches and Judgments of Chief Justice Yong Pung How (FT Law & Tax Asia Pacific, Singapore, 1996) ‘Speech Delivered at the Singapore Academy of Law Second Annual Lecture – 12 September 1995’, pp 193-194 14 During the 2007 parliamentary debates over the amendment to the Penal Code (Cap. 224, 2008 Rev. Ed. Sing.) 15 Speeches and Judgments of Chief Justice Yong Pung How (FT Law & Tax Asia Pacific, Singapore, 1996) ‘Speech Delivered at the Fourth Inter Pacific Bar Association Annual Conference Dinner’, pp 119-120 16 Law Council of Australia Brief, September 2009 (LawCouncil. Asn.Au, September 2009) <http://www.lawcouncil.asn.au/shadomx/ apps/fms/fmsdownload.cfm?file_uuid=A770EF94-1E4F-17FA-D2D1BA99625CD699&siteName=lca > Accessed 14 July 2011 17 K.C. Vijayan ‘Number of Lawyers at 5- year High’ (Asiaone.Com, 17 October 2009) < http://www.asiaone.com/News/Education/Story/A1Story20091015-173802.html > Accessed 14 July 2011 18 Developments in Singapore Law 2006-2010 (SupremeCourt.Gov.Sg, 24 February 2011) < http://app.supremecourt.gov.sg/data/doc/ManagePage/3704/ Opening%20Address%20by%20Chief%20Justice%20Chan%20at%20 the%20SAL%20Conference%202011.pdf > Accessed 14 July 2011 12 13

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Reconsiderations on Consideration The doctrine of consideration is outmoded, and ought to be re-examined, and if necessary, reformed. BY QUAH PERN YI, London School of Economics

he modern purpose of the doctrine of consideration is to “put some legal limits on the enforceability of agreements, even where they would otherwise be legally binding” 1. Its existence, however, has been heavily criticized, the most recent of which was from Andrew Phang JA2 , who hinted at the possibility of the reform or abolishment of the doctrine in the future. This is not a new suggestion. Indeed, even eight decades ago, the United Kingdom Law Reform Committee made a proposal to the effect that consideration should only be a means of ascertaining whether a promise should be enforceable, by proposing that it merely be evidence of a serious intention to contract3 . This article aims to show that the doctrine of consideration should be abolished as it has outlived its purpose and should be replaced with other alternatives. ORIGIN AND EVOLUTION The courts have “never set out to create a

No longer is consideration used to indicate whether or not there are good reasons for enforcing the promise. 72

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doctrine of consideration”, and have been instead “been more concerned with the much more practical problem of deciding in the course of litigation whether a particular promise in a particular case should be enforced” 4. In the course of these decisions, the courts looked at the particular facts of the case and when they found that there was sufficient reason to enforce the promises they did, and when it was found undesirable to do so they did not. When the courts first used the word ‘consideration’ they “meant no more than that there was a ‘reason’ for the enforcement of a promise” 5. As such, the existence of consideration generally meant that the promise was enforceable, and vice versa. However, there has nowadays been a change of approach in terms of how lawyers think about consideration. No longer is consideration used to indicate whether or not there are good reasons for enforcing the promise; it is now “widely assumed that consideration is a technical requirement of the law which has little or nothing to do with desirability of enforcing a promise”6. This is primarily due to the growth of other alternatives such as intention to create legal relations and duress which the courts have been increasingly turning to in order to ascertain the enforceability of the promise. An illustration of this is the comparative between Shadwell v. Shadwell 7 and Jones v. Padavatton 8, where the courts discussed enforceability and upheld the contract of an uncle financially assisting his nephew

upon his nephew’s marriage in terms of consideration in the former, and held that the domestic agreement between a mother and her daughter was not legally binding in terms of intention in the latter. Consequently, “in modern practice the restrictive influence of consideration has markedly receded in importance” 9, and the courts have been struggling to develop the doctrine in order to ensure its relevance in the modern context10. CONTEMPORARY PROBLEMS The corollary of attempting to develop the doctrine to fit modern times is that the scope of consideration has been widened. Not only does consideration now encompass legal benefit, it also takes into account practical benefit 11. Thus the courts “invent consideration” 12 by “regarding an act or forbearance as the consideration for a promise even though it may not have been the object of the promisor to secure it” 13. Although this makes the doctrine more acceptable in modern times, it also “gives the courts a wide discretion to hold promises binding (or not) as they please” 14. This has led to uncertainty in the law, especially since the courts have not been too consistent in the exercise of this discretion. Further, Andrew Phang JA has also admitted that there are problems with “theoretical coherence” 15 of the doctrine because of the existing tension between authorities of Williams v. Roffey and Foakes v. Lex Loci 2011

Beer 16, which state that although ‘benefit’ now extends to promisors to pay more, it does not extend to promisors who pay less. This distinct seems arbitrary and seems to only exist because the House of Lords in Williams v. Roffey did not consider Foakes v. Beer in its decision. Nevertheless, Andrew Phang JA qualifies his statement by noting that Singapore courts are no longer bound by English precedent and could extend ‘benefit’ to include such promises to pay less to remove this arbitrary distinction. However, the Singapore courts have not done so as yet because such a case has not presented itself and so this distinction remains. All these contemporary problems are a result of judicial modification of the doctrine of consideration in order to render it more reflective of the modern commercial context. This, however, is unnecessary because it is merely a postponement of the inevitable – the abolishment of this archaic doctrine. Indeed the courts from the Commonwealth nations, including Singapore, have already showed indications towards treating consideration as “a valuable signal that the parties intend to be bound by their agreement, rather than an end in itself” 17. SOLUTIONS FOR THE FUTURE Judicial dissatisfaction of the doctrine of consideration is especially prevalent in the Singapore courts, and the recent critique of the doctrine from Andrew

Phang JA is only the latest out of many. In Chwee Kin Keong v. Digilandmall 18, Rajah JC downplayed the role of consideration in deciding the enforceability of promises, and instead held that “the marrow of contractual relationships should be the parties’ intention to a legal relationship” 19. This was consistent with earlier Court of Appeal decision in Sea-Land Service Inc. v. Cheong Fook Chee Vincent 20 , where Yong Pung How CJ held that the legal enforceability of the agreement once again depended on the intention of the parties 21. It is thus proposed here that the courts should crystallize their stance away from consideration and towards the intention of the parties to create a legal relationship. This would better reflect the modern context of commercial transactions, and better recognize the parties’ rights to freedom of contract. Should this be the shift, it would be in line with modern international commercial practice, which recognizes the parties’ intention to be legally bound as a condition for enforcement and makes no mention of consideration 22. It may be arguable that since consideration serves as a mechanism for which the courts use in order to determine enforcement based on the requirements of justice in particular cases, its removal may render the courts less able to dispense justice. Andrew Phang JA agreed, and stated that “if the doctrine of consideration is indeed abolished, the function it has hitherto performed must be fulfilled by alternatives

Andrew Phang JA in Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] SGCA 3 2 ibid 3 Law Revision Committee, Sixth Interim Report (Statute of Frauds and the Doctrine of Consideration (Cmd 5449, 1937) 4 Atiyah, ‘Consideration: A Restatement’ in Essays on Contract (Revised Edn, Oxford University Press, 1988) 5 ibid 6 ibid 7 [1860] EWHC CP J88 8 [1969] 1 WLR 328 9 Lord Steyn, writing extra-judicially in ‘Contract Law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433 10 Williams v. Roffey Bros & Nicholls (Contractors) Ltd [1990] 2 WLR 1153 11 ibid 12 GH Treitel, ‘The Law of Contract’ (12th edn, Sweet & Maxwell, 2007, edited by Edwin Peel), 3-009 13 ibid 1

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doctrines” 23. The doctrines that were proposed in Andrew Phang JA’s coda included economic duress amongst other things, and this was stated by him to be “more clearly suited to modern commercial circumstances but also (more importantly) to situations where there has been possible ‘extortion’” 24 . Considered as such, he thus stated that this alternative of economic duress could be an “appropriate replacement” 25 for the doctrine of consideration. Therefore it has been judicially recognized that should the doctrine of consideration be abolished, justice still can and will be better dispensed by the courts. CONCLUSION Although the prevailing judicial dissatisfaction of the doctrine of consideration is apparent, the courts have not been inclined to abolish this doctrine. Regardless, this could only be a matter of time because the issue of reform has not yet been put before the court. Should such a case arise, the courts should be cognizant of the trajectory of the modern commercial context and no longer postpone the inevitable. It is important to note that the law “has never had a ‘final’ or definitive version” 26 and has on the contrary “been continually developing up to the present day, and will no doubt go on developing in the future”27 . The doctrine of consideration has outlived its purpose and should therefore be abolished.

ibid Andrew Phang JA in Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] SGCA 3 16 [1881-85] All ER Rep 106 17 Baragwanath J in Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 18 [20041 2 S.L.R. 594 19 ibid 20 [1994] 3 SLR 631 21 Wu Zhuang-Hui, A Probable Reform of Consideration, 2009 Sing. J. Legal Stud. 272 2009 22 Article 2.1.2 UNIDROIT Principles (2004) 23 Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] SGCA 3 24 ibid 25 ibid 26 Atiyah, ‘Consideration: A Restatement’ in Essays on Contract (Revised Edn, Oxford University Press, 1988) 27 ibid 14 15

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31/03/2011 14:37

Accelerated Students: An Untapped Resource? The next step in reform

In the course of this article, I shall thus present my arguments for relaxing the current Bar admission rules for accelerated students and offer my suggestions for the direction in which the reforms could take. In examining the rules, I shall also discuss the relevant provisions in the new Act and provide a brief recap of the current admission criteria for UK law students. THE CASE FOR RELAXING THE RULES FOR ACCELERATED STUDENTS: (a) Foreign qualifications should be recognized with the introduction of the Foreign Practitioner Examination (“FPE”)

BY ELISA SOH, University of Southampton

ince 2008, the Ministry of Law (“MinLaw”) has made a series of changes to broaden legal education, improve professional training rules, and make it easier for foreign lawyers to practise in Singapore. The Legal Profession (Amendment) Act 2011, which was published recently, is another illustration of the ongoing reform to these areas.1

The motivations behind these changes are clear. To bolster the growth of the banking, financial and other key economic sectors, Singapore has to have a strong body of legal professionals with the necessary talent and expertise to support the extensive and sophisticated range of corporate transactions that are concluded everyday. Local and international legal talent are equally important and therefore I fully support MinLaw’s efforts to retain and attract both. In the same vein, I would also submit that MinLaw should consider relaxing the current Bar admission rules for “acceler-

Lex Loci 2011

ated students” as part of their strategy to anchor talent in Singapore. Accelerated students, in the context of this article, is a short-hand way of referring to students who have commenced or completed a law degree within a period that is less than 3 years.2 Such law degrees are generally not recognized for admission to the Singapore Bar under Rule 11 of the Legal Profession (Qualified Person) Rules. Hence, accelerated students who want to practise in Singapore are required to apply for a special exemption, which is granted by the Minister for Law under ss 2 and 14 of the Legal Profession Act. The issue is particularly pertinent to UK law graduates because a typical UK law degree last 3 years, but there are shorter 2-year LLB degrees that are available to graduates with a first degree. It is also interesting to note that the 2-year LLB degree (which is a qualifying law degree for the UK’s LPC or BVC) is offered by 12 out the 19 UK law schools that are approved by Singapore.3

The new Act introduces a Foreign Practitioner Examination (“FPE”), which is meant, as its name suggests, to allow foreign lawyers who pass the examination to practise in ‘permitted areas” of Singapore law if they work in Qualifying Foreign Law Practice, Joint Law Ventures or Singapore Law Practices. If they are working in a Foreign Law Practice, their practice of Singapore law will be confined to the areas permitted to their firm. The Singapore Institute of Legal Education (SILE), which replaces the current Board of Legal Education, will conduct the new examination. 4 Before they can sit for the FPE, foreign lawyers must meet the requisite eligibility criteria, which has yet to be disclosed. However, based on comments made by lawyer Margaret Chew, who co-chairs the FPE working party, the criteria may include quality safeguards like ensuring that foreign lawyers have at least 3 years of work experience and an existing job offer in Singapore.5 Presumably, if quality were a concern, it would not be illogical to expect the criteria to include the type of law degree that the foreign lawyer has obtained or even the university that he or she has graduated from. If this is the case, we

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may have UK lawyers who meet all the criteria, but have 2 -year LLB degrees that are recognized in their home jurisdiction. How would the SILE resolve this then? Secondly, if the decision is positive, will it be consistent with the current treatment of accelerated students? The main point I would like to illustrate with these questions is that as Singapore seeks out more international legal talent, there will be more pressure on us to accept the recognized legal qualifications in the major common law and perhaps even civil law jurisdictions. Hence, there will be more urgency for MinLaw to review the current admission rules for local talent taking accelerated law degrees to ensure that there will be level playing field for anyone who wants to practise in Singapore. (b) Improved Professional Training and Current Bar Admission Rules are effective quality safeguards for all law graduates The new Act will also allow trainees to be part-called to the Bar 3 months into their practice training period, which is shorter than the current 4 months. Furthermore, there is an expansion in the types of hearings a trainee may appear in court for. Hence, trainees may now appear for all types of hearings after 3 months of training and this will give them an opportunity to handle a broader scope of work earlier.6 How does this fit in with the current admission rules for the Singapore Bar? For all UK law graduates, the academic admission criteria to the Singapore Bar will entail passing the new Part A and Part B examinations. In terms of the practical training criteria, a UK law

graduate will have to complete 6 months of “relevant legal training”, which is in addition to the 6 months practice training period. The part-call changes will only be applicable in the practice training period and not during the “relevant legal training” period. The new changes are meant to improve the quality of legal training in Singapore and they provide another good reason why we should admit accelerated students into the Singapore Bar. After all, with training safeguards such as these in place, should we not be reassured that the quality standards will be maintained even by accelerated students?

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I have now listed the main reasons for supporting a relaxation of the admission rules for accelerated students, but I acknowledge that it cannot be implemented immediately. A more comprehensive and careful study of the merits, drawbacks

The new Act will also allow trainees to be part-called to the Bar 3 months into their practice training period.

c) Accelerated students contribute to diversity and range of expertise As a result of their previous academic background in other disciplines, accelerated students can bring a different perspective and contribute to a wide range of expertise in the legal sector, which may prove helpful in technical and highly specialized areas like patent or environmental law. This idea was in fact mentioned in 2007 by the Committee to review the legal services sector. 7 It must be stated that in comparison with the Singapore graduate law programs in SMU and NUS, the UK graduate law degrees often do not require their students to take law electives. I would argue, however, that elective content can be learned on the job and as long as the degree provides students with the necessary grounding in the law and legal skills, it should be sufficient for the Singapore Bar.

Please see Ministry of Law, ‘Guidance Notes on the Key Changes to the Legal Profession Act(Effective from 3 May 2011)’ <http://app2.mlaw.gov.sg/News/ tabid/204/Default.aspx?ItemId=553> Accessed 30th June 2011 2 Ministry of Law, ‘Approved University Requirement’ <http://app2.mlaw.gov. sg/UsefulInfo/PracticeoflawinSingapore/ApprovedUniversities/tabid/264/ Default.aspx >Accessed 30th June 2011 3 Ministry of Law, ‘List of Approved Universities’ <http://app2.mlaw.gov.sg/ UsefulInfo/PracticeoflawinSingapore/ApprovedUniversities/tabid/264/Default.aspx > Accessed 30th June 2011 1

SO WHAT NOW?

and more importantly, the interactions with the other types of untypical law degrees (combined degrees etc,) should be carried out first before such a move is contemplated. That does not mean, however, that nothing can be done in the interim. Accelerated students can prove to be a good source of talent in the legal sector and more should be done to encourage them. A good place to start would be to reform the current exemption rules, which create uncertainty due to the lack of disclosure about the decision criteria. Hence, MinLaw could perhaps consider releasing more information about the accelerated law degree programs that have been accepted before, statistics of the number of exemptions granted per year, or even the profiles of the students that the Minister has granted exemptions to. This will greatly aid prospective accelerated students in ascertaining their chances of being admitted to the Singapore Bar.

4 Vijayan, K.C, Toh, Mavis, ‘Foreigners May Practise Singapore Commercial Law’ Straits Times (11 Jan 2011) 5 ibid 6 Toh, Mavis ‘ Law Trainees to get feet wet sooner if changes passed’ Straits Times (11 Jan 2011) 7 ‘Professor Jayakumar announces recommendations of the Committee to review the legal sector- 7 December 2007’ (Press Release Enclosures) <http://app2.mlaw.gov.sg/News/tabid/204/Default.aspx?ctgy=Announcement> Accessed on 31st March 2011

Lex Loci 2011

Changes in the Singapore Legal Profession Is liberalisation the right strategy? BY SARAH LIM, University of Leeds

ver the past decade, Singapore’s legal services have become more and more integrated into the global arena. Apart from having local law firms practice international law, Singapore has encouraged several foreign law firms to enter the domestic legal arena by allowing them to practice in select areas of Singapore Law. As of today, there are 104 foreign law firms registered and 983 foreign lawyers practicing in Singapore. The offices of eight of the world’s top ten revenue-earning law firms are also in Singapore. This article examines the impact of the increasing number of foreign law firms entering the domestic legal industry on local firms and whether liberalisation of the sector is the right choice to make. Before doing so, the article will first contextualize the nature of the changes to the current structure of the local legal framework. Lex Loci 2011

In Singapore, there is a distinction between the practice of foreign law (such as English or Chinese Law), and the practice of Singapore Law 1 . A foreign law firm can operate in Singapore by first registering with the Attorney-General’s Chambers’ Legal Profession (International Services) Secretariat and subsequently the Accounting and Corporate Regulatory Authority (ACRA)2 . Prior to the addition of the Qualifying Foreign Law Practice Scheme (“QFLP”), foreign law firms could only operate through other structures, such as Representative Office, Foreign Law Practice, Formal Law Alliance and Joint Law Venture 3 . This greatly restricted the scale of foreign law firms. Foreign law firms operating through Representative Office are only allowed to carry out liaison or promotional work. They are not allowed to provide legal

services in Singapore or conduct any other business activities. Foreign law firms operating through the Foreign Law Practice are only allowed to advise their clients on Singapore law in the context of international arbitration, through lawyers who have been admitted to the Singapore Bar. A Foreign Law Practice can enter into a Formal Law Alliance with a Singapore Law Practice. A Formal Law Alliance is not a single entity. Its constituent firms uphold their separate legal identities but can provide their legal services as a single service provider. Similarly, they are only allowed to advise their clients on Singapore law in the context of international arbitration, through lawyers who have been admitted to the Singapore Bar. Alternatively, a Foreign Law Practice can enter into a Joint Law Venture with a Singapore Law Practice. For instance, Linklaters LLP, one of the leading law firms in the United Kingdom, operates in Singapore through Linklaters. Allen Articles

& Gledhill Pte Ltd, a registered law joint venture between Linklaters LLP and Allen & Gledhill LLP. Unlike the Formal Law Alliance, a Joint Law Venture operates as one legal entity and is allowed to practise foreign law and certain permitted areas of Singapore law, through lawyers who are admitted to the Singapore Bar. In 2007, the Singapore Government announced its intention to liberalise the legal services sector by introducing a QFLP Scheme 4. The QFLP Scheme provides licences to foreign law practices, to practice Singapore law through Singaporequalified solicitors employed by them. They are only allowed to practice in areas involving corporate and commercial law, such as banking and finance, mergers and acquisitions, and intellectual property, but not in specific domestic areas, such as family, conveyancing and probate law. 5 This marked a significant, albeit not complete, opening up of the market. It must also be noted that QFLP does not affect other existing restrictions such as those preventing foreign law firms from appearing before the courts. In August 2008, all foreign law practices were invited to apply for QFLP licences and a total number of 20 proposals from foreign law firms were received 6. In December 2008, the Singapore Government awarded six Qualifying Foreign Law Practice (QFLP) licences to six Foreign Law Practices, namely Allen & Overy, Clifford Chance, Herbert Smith, Latham & Watkins, Norton Rose, and White & Case. These law firms were given up to six months from 1 January 2009 to set up their QFLPs. Their licences would be valid for an initial period of five years. There are many potential advantages to the liberalisation of the sector through this scheme. Firstly, Law Minister Mr Shanmugam commented that the scheme would ‘realize the potential of the legal services’ by introducing competition into the market and creating growth. In his estimation firms would double their revenue,

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staff and profits over the next five years. Competition would also create a downward pressure on prices, resulting on the provision of more affordable legal services.

mitted themselves to making Singapore their centre for arbitration work in the region. Already, the Singapore International Arbitration Centre’s caseload hit a record of 198 new cases in 2010. This was

As of today, there are 104 foreign law firms registered and 983 foreign lawyers practising in Singapore.

Secondly, it would expand the sector by attracting and developing both local and foreign talent with the many opportunities to work in a variety of law firms, local and international. Local talent would no longer have to leave our shores in order to gain this exposure. Already, as of March 2011, Mr Shanmugam reports that the firms with QFLP licences have met their two-year targets stipulated under the scheme when it was introduced in 2008 and have increased manpower by over 200 lawyers. They have also brought in more offshore work together with them. Thirdly, it would make the legal sector an engine of growth for non-legal sectors such as the financial, corporate and maritime sectors which rely heavily on a sound legal infrastructure in order to operate 7. In fact, the sheer presence of these foreign law firms may be a crucial factor in attracting some of the world’s top corporations in these sectors to base their operations in Singapore. In the longer term, the growth of these sectors would in turn stimulate increased demand for legal services . Already, in 2010, the legal sector has outperformed the overall economy by posting growth of 4.3%. Fourthly, it would make Singapore a regional legal sector. The six law firms that have acquired the QFLPS have com-

twice the 2008 figure. Maxwell Chambers heard 120 cases in 2010, up from 46 cases after it opened in mid-2009 9 . Adding to the momentum, Mr Shanmugam also stated that Singapore will be hosting two high-profile events in 2011 to showcase Maxwell Chambers and Singapore as a global arbitration venue. However, there are also many risks to the liberalisation of the sector. Firstly, foreign law practices are generally more cost competitive because of their size, which allowed them to expand overseas in the first place. They thus tend to reap economies of scale because of the large number of lawyers and resources at their disposal. Small and medium-sized firms may not be able to compete in the same market unless they merge their practices in order to obtain the same economies of scale. Secondly, these foreign law firms have acquired international prestige over the years because they offer top-tier expertise across a number of key jurisdictions. They would be more familiar and connected with these jurisdictions. They would also have an impressive and diverse clientele base. These differences may be determining factors in attracting clients away from local firms. Given the risk of oversaturation in the local market for legal services, local firms will also have to differentiate

Lex Loci 2011

Liberalisation of the legal sector has formed part of a broader process of globalization that Singapore must embrace in order to stay relevant.

themselves by specializing in niche areas or areas that QFLPS can’t practice in. Also, while there is a strong risk that local firms would lose their existing clients, they can avoid this risk by providing © Victoria Lee strong USPs (Unique Selling Points) so that Foreign law practices are generally more cost-effective because clients might feel there of their size, which allowed them to expand overseas in the first place.’ is no substitute for them and continue to employers by providing other benefits, rely on them. Neversuch as by promoting a healthy worklife theless, specialization and differentiation balance or insurance coverage. would have positive implications for the industry as a whole through an improveIn conclusion, the benefits of liberalisament in the quality of legal services and tion through the QFLP scheme seem technical expertise. much greater than its potential risk. Liberalisation of the legal sector has formed Thirdly, not only would it be difficult to part of a broader process of globalization provide competitive services, local firms would now have to compete to attract top that Singapore must embrace in order to stay relevant. The economy at large and lawyers. There are now more firms competing for the same number of lawyers. As those who need the legal services stand to benefit from a cheaper and more diverse such, there would be an upward pressure sector. Most of the scheme’s potential on the salaries of lawyers. Local firms risks are limited to the inability of smaller would have to pay more in order to keep domestic firms to compete with foreign and recruit new lawyers. law firms. Still, the impact on these firms can be drastically reduced through a This effect might however, be negated by mixture of government action and innovameasures that the Singapore government tion by the firms. The government should has taken to increase the nation’s pool thus continue to encourage the process of of lawyers such as setting up a new law liberalisation while enhancing these other school in the Singapore Management adaptive processes. University. On top of this, rather than raising salaries, local law firms could also make themselves more attractive

Ministry of Law <http://app2.mlaw.gov.sg/UsefulInfo/PracticeoflawinSingapore/PractisingSingaporeLaworForeignLaw/tabid/270/Default.aspx> Accessed 17 March 2011 2 ACRA <http://appiqs.acra.gov.sg/iqs/ask_acra.asp?strItemChoice=2005227221222& action=SHOWTOPICS&strSubItemChoice=2005227221351&m_strTopicSysID=2009428172428> Accessed 17 March 2011 3 Ministry of Law <http://app2.mlaw.gov.sg/UsefulInfo/PracticeoflawinSingapore/HowcanaforeignlawfirmsetupapresenceinSi/tabid/276/Default.aspx> Accessed 17 March 2011 4 Ministry of Law, Transcript of Minister’s Opening Remarks for the Qualifying Foreign Law Practice Licences press conference on 5 dec 2008, 11am, <http://app2.mlaw.gov.sg/LinkClick.aspx?fileticket=a5b7HD8uFbE%3d&tab id=204> Accessed 17 March 2011 5 Singapore Law Watch, Lawyers welcome entry of foreign law firms but…, (16 March 2011) <http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/ 1

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legalnews/71200.html?utm_source=rss%20subscription&utm_medium=rss> Accessed 17 March 2011 6 Ministry of Law, Award of Qualifying Foreign Law Practice Licences, (5 Dec 2008) <http://app2.mlaw.gov.sg/News/tabid/204/currentpage/3/Default. aspx?ItemId=40> Accessed 17 March 2011 7 S. Ramesh, Singapore can grow legal services beyond domestic market: Law Minister, <http://www.channelnewsasia.com/stories/singaporelocalnews/ view/1077656/1/.html> Accessed 17 March 2011 8 ABA Journal, Singapore Welcomes Foreign Lawyers, Grants 6 Law Firm Licenses, (5 Dec 2008) <http://www.abajournal.com/news/article/singapore_welcomes_foreign_lawyers_grants_6_law_firm_licenses/ > Accessed 17 March 2011 9 Singapore Law Watch, Foreign law Firms and Lawyers help grow legal sector, (11 March 2011) <http://www.singaporelawwatch.sg/remweb/legal/ln2/ rss/legalnews/71115.html?utm_source=rss%20subscription&utm_medium=rss> Accessed 17 March 2011

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Challenging Conventions, Redefining Expectations By Mansoor Amir, University College London

When I first heard about Tan Zhongshan, he was making headlines. Here was an individual who had not only emerged as the top law student from the University of Cambridge, but had also bagged almost every prize offered by the university. He was awarded the Norton Rose Prize for Commercial Law, the Clifford Chance Prize for European Union Law, the Herbert Smith Prize for Conflict of Laws and the Slaughter and May prize, an award given to those who achieved the best overall performance in their final year law examinations. Born in Ipoh, Malaysia, he went on to read law at Cambridge on a National Infocomm Scholarship awarded by the Infocomm Development Authority, after completing his A-Levels at Temasek Junior College on an ASEAN Scholarship awarded by the Ministry of Education. At that time, I had just started out with law school. My friends and I were only just beginning to see the truth in the old adage: ‘the first year of law school scares you to death’. Being scared to death we were and many of us wanted to know Zhongshan’s secret. It was with great interest therefore that I went on to interview this fine scholar. As students of land law, we were familiar with Dr. Martin Dixon. Many enjoyed using his textbooks and his papers were often part of our reading lists. 80

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Dr. Dixon was one of Zhongshan’s supervisors at Cambridge. According to him, Zhongshan was his most ‘able’ and ‘dedicated’ student in more than 20 years. When I finally found the opportunity to ask him about his secret, he humbly had this to share: ‘I think my success was mainly due to a good understanding of the fundamental principles. While I did work consistently throughout the academic year, I think what was more important was that I took time to reflect on and analyse the principles and cases. Of course, it helped tremendously that I usually enjoyed what I was learning.’ Lex Loci 2011

Today, Zhongshan is serving as a Justices’ Law Clerk in the Supreme Court of Singapore. Here was an individual who could have done anything that he wanted and yet, he had chosen to serve the Singapore Legal Service. I was curious. There was of course the simple and obvious reason that he was serving his scholarship bond. ‘However, it’s [the bond] hardly a burden because I’m enjoying myself,’ he added. ‘The JLC programme provides a perfect mid-way point between academia and practice – while JLCs assist the Supreme Court judges in legal research and enjoy the privilege of working closely with them, we also get to observe lawyers in action, some of whom may be excellent litigators. It’s an invaluable insight into the mechanics of litigation in the Supreme Court – an insight which is all the more precious because it’s from an impartial perspective.’

and members of the bench, it is also important that individuals who have been dealt a bad hand in life are still able to obtain legal advice and representation of an adequate standard. In connection with that, I hope that, across the board, the quality of legal advice and of professional ethics will be much better.’ In closing, to law students aspiring to follow in his footsteps, he had this simple piece of advice: ‘The most important thing I’ve learned thus far is that one can never know everything there is to know about the law. As such, what’s more important is to develop a mastery of the fundamental principles and their underlying rationale. I think that it’s also useful to be familiar with logical reasoning and argumentative techniques.’

Ask any lawyer and they will tell you that there is much that law school does not teach you. Practicing as a lawyer is a new ballgame altogether. On the difference he has felt between being a law student and a lawyer, he noted: ‘I think the principal difference, intellectually, is that while the facts are presented as they are in an examination or supervision questions, in practice these facts will often remain at large until elicited from clients, witnesses or documents. Most cases primarily involve disputes about the existence of facts and their relevance to the issues at hand. The facts will often be incomplete, and one will have to make the best of what is currently available and be prepared to evaluate quickly new information that comes in, particularly if it emerges during at trial. Somewhat related to this is the fact that lawyers will often have to be able to deal effectively with bosses, their clients, judicial officers and the other side’s lawyers: this human element is wholly lacking during undergraduate study.’ But of course, this man is not just all work and no play. He plays the classical guitar and while at Cambridge, he was involved in the Temasek Society which organised talks, discussions and other events for the purpose of exposure to and encouraging reasoned discourse on issues which affected Singapore. He also participated in a mooting competition organised by the law faculty and several events organised by the Singaporean and Malaysian student societies. But as we all know, hard work and long hours have become almost synonymous with the legal profession. Things are not any different for Zhongshan who shares: ‘Honestly, I don’t have much free time at the moment. I hope to be able to catch up on my reading and to resume playing the guitar at some time in the future.’ On where he sees the Singapore legal sector in 2020, he had this to say: ‘My opinion of the law and lawyers is that we essentially play a peripheral, facilitative role: we help to ensure, within reasonable limits, that individuals are free to live and plan their lives as they see fit.

The most important thing I’ve learned thus far is that one can never know everything there is to know about the law.

As such, I hope that while the legal sector continues to develop and grow in sophistication and quality, in terms of the jurisprudence emanating from the courts as well as the calibre of lawyers Lex Loci 2011

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Mooting Tips and Tricks By Ezra Tay, University of Southampton

Mooting. It is a mock appellate court held at every reputable law school around the world and experienced by most law students. It seems to be, or has become, a part of holistic legal education.

with an overview of your case. Crucial issues, current law or current practice, and consequences of judgement. Put your best foot forward: the most important points first.

Mooting began in 1485 when the Inns of Court started examining issues that were ‘moot’, as part of training pupils1. Today, every school has a different style and procedure, but settings are mostly formal. Two teams appellant and respondent lock horns before a legally qualified judge or judges, taking turns to convince the bench.

Preparation

Mooting enhances research, writing, communication and analytical skills; inspires professionalism and confidence while teaching etiquette and humility. Time management, speaking publicly, thinking on your feet and tenacity under pressure also helps to prepare law students for advocacy. I have always found it exhilarating to be grilled and to rack my brains trying to convince a judge. Some pointers to consider: Mooting has the same dynamics as real hearings. They are ‘conversations2’ between the bench and the advocate, not one-sided presentations. Scoring is usually based on paper submissions and oral advocacy with an emphasis on the latter. Your aim is to sway the bench to your cause by, inter alia, a thorough explanation of your rationale. If you like, start

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Your weapons are facts, logic, legal concepts and precedent; with arguments of public policy, equity and even appeals to emotion. Good knowledge about relevant cases is necessary. Know the remedy you desire, and work out counterarguments to your opponent’s points whenever possible. The best way to prepare is to have an ‘expanded skeleton argument’ where you insert important notes and necessary information (e.g. excerpts of judgements, academic opinion) into your skeleton argument3 to use as a presentation guideline. Include citations just in case. Crucial information is most wieldy when written in a concise manner. It should be easier to identify and apply the appropriate knowledge, without having to flip through your bundle like a madman. No one should rely on a written speech. A prepared speech imposes a fixed mental frame. But judges are not so kind and they love to throw you off-course, especially in final rounds. They want to see how well you respond a challenge, and I was rarely allowed to present my points in succession as judges start (they always do haha!)

asking difficult questions immediately. Hone your confidence to prevent or mitigate fear. Ample preparation helps. When you are afraid, your mind goes into hiding and you will not be able to present or respond properly. The ability to think on your feet is also improved through practice. Get as much practice as possible by asking people to judge you whether or not they know the law. Explaining the law to laypeople improves clarity and simplicity of delivery, while the legally inclined can help you to refine your argument by eliminating weaknesses and getting you accustomed to questioning and dealing with logical fallacies. Advocacy Get sufficient rest before the event. Have a deferential but firm attitude and maintain as much eye contact as possible. Put yourself in the judges’ shoes to have a better idea of what they are asking. Listen carefully to understand a question, pause to digest and think of a reply, answer to the point and explain, then relate/transit to your argument. Hypothetical questions are possible, and questions on precedent are common. All common law courts real or moot pay special attention to the rule of precedent and the need to abide by, or overrule a previous decision when appropriate.

Lex Loci 2011

their wit and charm respectfully and with relevance. When a judge said that I did not appreciate the gravity of legal certainty, I lamented for justice by saying, “If only Lord Denning was still around.” The judges and audience were entertained, providing fuel for confidence; but this should never be a priority.

© Nigel Young_Foster + Partners A participant must be daring. He must respond to his opponents (where possible) and even refute a judge if there is sufficient basis. During my internal competition, the judge told me that I made my argument difficult by not utilising ‘public policy’. I thought however that it is ridiculous to use public policy to convict a man for murder when he had no choice but to throw his daughter off a burning building and to jump off as well if not be burnt to death (the only other alternative is to hold her and jump). It is Wednesbury unreasonable, and my tutor (a policeman) said that there wouldn’t even be a case. In reality, we all know that public policy can be and has been used unjustifiably. But be realistic. Do not engage Pandora’s boxes as you have insufficient time and probably insufficient material as well.

Theatrics are then best dispensed with (If you wish to use them for added dramatise, do remember to keep them tasteful). In any case, there is a difference between actual advocacy and mooting: in the former, a client’s needs are paramount, and there is reputation at stake for practitioner and firm. Mooters argue for themselves. Lawyers argue for others. For those of us passionate in this sport, UK universities do participate in international moot competitions4 and some are pretty popular (e.g. Telders, Willem C. Vis). The holy grail however, is the Philip C. Jessup. It is held annually in Washington DC and is based on public international law (fictionally) argued before the International Court of Justice. Over 1500 students from 300 law schools in 50 countries participate every year. Several of our eminent lawyers in Singapore were winners in their time. For example, Mr Davinder Singh, Justice V K Rajah, Mr Jimmy Yim, and Justice Steven Chong won in 1982. And NUS currently holds the highest number of top-two finishes.

A senior counsel for the appellant should always exercise the ‘right of reply’ if available and appropriate. Always try to provide a conclusion, and ask for permission to continue if your time is up.

The popular belief in Singapore is that mooting achievements hardly rival academic results, although Mr Davinder Singh considers the Jessup Moots as the ‘decisive factor’5 in his life as a top litigator.

The best mooters are able to exercise

Perhaps grades are not everything after all.

Ezra is a seasoned mooting participant and demonstrator. His achievements include receiving full marks from a barrister during his first year’s compulsory moots at the University of Southampton, and second place at an Inns of Court Moot Competition.

T Kaye and L Townley, Blackstone’s Book of Moots (Bell & Bain Limited 1996) 3 Darby Dickerson, ‘IN RE MOOT COURT’ Vol. XXIX Stetson Law Review 1217 3 The skeleton argument is a document, to be submitted to the moot court and opposing counsel, containing summaries of one’s arguments 4 International Law Students Association, ‘International Law Moot Court Competitions’ <http://www.ilsa.org/listings/intlmoots.php>, Accessed 20 July 2011 5 ‘The Legend of Litigation’ (Lex Loci 2009) <http://www.ukslss.net/pdf/Lexloci2009.pdf>, Accessed 20 July 2011 2

Lex Loci 2011

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An Introduction to Cross Examination: Extracting the answers you want from your witness BY ANG ANN LIANG, University College London

or the many of you who watch legal television serials the concept of cross examination must be familiar. It is the very essence of Courtroom dramas: Often on TV, the barrister slowly slices the witness apart with questions. With each question, the audience marvels at the wit of the barrister and his/her ability to leave the witness tongue tied. Unfortunately, that sort of excitable drama only occurs on TV. It does not mean, however, that the skills employed to worm out an answer from a witness is only applicable in fiction. Whether you eventually become a barrister, a solicitor, or a legal counsel to any organization it helps to be able to extract confessions and churn out the truth. Few would dream of lying to you.

1. Ask only leading questions In crossing a witness one must keep in mind that the witness is resisting every of your attempts to get him to admit or concede something in your favour. The questions you ask should thus compel a very limited response. Open-ended questions are a big no-no: it gives the witness an opportunity to repeat damning evidence, or to explain any inconsistencies that you have prepared to nail him with. Hence, you are to ask only leading questions: questions which already declare the answer for him. Do not give him space and time to elaborate on his answer (opposing counsel will gladly do so in re-examination). What is a leading question? Q: That knife was on the table, wasn’t it?

A witness for the opposition is called to testify for the opposing side. Hence, in advocacy, the goal of cross-examination is to mitigate his testimony or use it to your advantage. This can be achieved by a) discrediting the witness’s testimony and b) coercing the witness to concede facts that are in your favour. SOME IMPORTANT PRINCIPLES OF CROSS-EXAMINATION The following rules are further expounded in The Devil’s Advocate: by Iain Morley QC and other advocacy books.

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ness but that should not mean you should make his life easier anyway. 2. Show, not tell The naïve lawyer may ask questions of the witness hoping to get the answer he desires. This is often not the case. Getting the witness to admit something, especially something that is detrimental to the credit of expert witnesses, is very difficult. You cannot, for example, hope to get a witness to admit outright a characteristic that will lead to aspersions cast on his credibility. Example: Q: Witness, you are a binge drinker right? (Very likely the witness will vehemently deny the accusation and look up at the judge in a pitiful manner as if he was wronged)

What is not a leading question? Q: Where was the knife? (This is the worst kind of question you can ask in cross examination because it gives the witness every leeway to qualify his answers in his favour)

So, if you were trying to get somebody to admit that he was a binge drinker, instead of asking if he was one, you could go on the following line of questioning: Q: Witness, you visited the bar last week? A: Yes

Q: Was the knife on the table? The point is to get the witness to say no more than he should in Court. If opposing counsel is sharp enough, he will be able to entice a full explanation from the wit-

Q: You visited it on Monday? A: Yes Q: Tuesday? A: Yes

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so much at that time. I just followed my partner into this business plan. (clearly he has forgotten that days earlier, he gave evidence of his impressive academic results)

Q: Every day of the week in fact? A: Yes Q: And each time you went in you had drinks? A: Yes Q: And you paid for all of them? A: Yes

Q: You can’t see that you are cheating monies out of people. A: Nope

Q: You paid 300 pounds in all each visit? A: Yes

Q: You can’t see that your company is earning a profit at the expense of others. A: Nope

Q: That must have been 10-15 drinks in total each visit? A: Yes Q: So around 75 drinks in a week? A: I suppose so There you have it. No amount of gooey eyes or pitiful looks can displace the presumption that this witness is a binge drinker. 3. Do not ask a question to which you do not already know the answer

It is at this stage best to ask questions pertaining to the witness’s background. Remember, only after lowering the witness’s guard do you then proceed to take advantage of his or her vulnerable state and strike with your ultimate KO inducing killer questions. Questions that you may want to start with include the following: Q: Your educational level is Bachelor’s Degree?

Q: Remind me again where you were educated. Jury: (in their minds) yea right. This guy went to a prestigious school with a prestigious degree and now he claims he cannot see what those simple numbers meant. Bulls**t. And with that, you have managed to sway the jury to your side, in this aspect anyway. ENDING YOUR CROSS

Q: You live at XXX address? It’s obvious. If you don’t know what answer the witness is going to give, try not to ask. This is so that the witness will not jump you with an unpredictable answer that totally disrupts your submission arguments and line of questioning. How you should start On TV lawyers get on point immediately by pummeling the witness with hard questions. This is, however, highly impractical. In real life, witnesses are not as dumb. If I put you in the witness chair, you will probably attempt to second guess the purpose of my questions so that you may thwart it. Hence I shouldn’t. Instead, it helps to first calm the witness and charm him or her with a few simple questions that may not even be related, so that he or she slowly opens up to you.

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Q: You are working as a banker, sex worker etc? As you become more advanced with this technique, you can begin to insidiously insert questions into the start that may become important bases on which you will later on use against the witness. Example: Q: Witness, where were you educated? A: LSE Q: And you studied accountancy? A: Yes Q: You attained 1st Class Honours? A: Yes Many questions and days of trial later…… A: I told you, I was stupid. I didn’t think

Always try to end your cross on a significant issue. This is so that you leave an impact on the minds of the jury. If the witness has already given you an answer in your favour, know when to stop or you risk throwing away what would have been an excellent opportunity to win your case. CONCLUSION As I have already stated at the beginning, this article is not meant to be a comprehensive guide to cross-examination. It is neither complete nor authoritative. Instead, it is meant to be an introduction to whet the appetites of law students. This article is very much based on the book: The Devil’s Advocate, written by Iain Morley QC. It is this book that I highly recommend to all who eventually go on to advocate in Courts or tribunals of any jurisdiction.

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Jest-ice in Action Lawyer: "How far apart were the vehicles at the time of the collision?"

Prosecutor: Did you kill the victim?

Lawyer: "Now sir, I'm sure you are an intelligent and honest man--"

Prosecutor: Do you know what the penalty is for perjury?

Witness: "Thank you. If I weren't under oath, I'd return the compliment."

Defendant: Yes. It is much better than a penalty for murder.

Defendant: No.

BY DAPHNE WONG BY ELSON ONG Citation: RinkWorks, ‘Collision’ (Things People Said: Courtroom Quotations) <http://www. stumbleupon.com/su/1y6tQD/rinkworks.com/ said/courtroom.shtml> Accessed 23 May 2011

Citation: Anvari.org, <http://www.anvari.org/shortjoke/Jokes_ Cate/3648_prosecutor-did-you-kill-the-victimdefendant-no-i-did-not.html> Accessed 23 June 2011

RinkWorks, 'Intelligent and Honest Man' (Things People Said: Courtroom Quotations) <http://www.stumbleupon.com/su/1y6tQD/ rinkworks.com/said/courtroom.shtml> Accessed 23 May 2011

As a judge, I was sentencing criminal defendants when I saw a vaguely familiar face. I reviewed his record and found that the man was a career criminal, except for a fiveyear period in which there were no convictions.

Attorney: So the date of conception (of the baby) was August 8th?

A dog ran into a butcher shop and grabbed a roast off the counter. Fortunately, the butcher recognised the dog as belonging to a neighbour of his. The neighbour happened to be a lawyer. Incensed at the theft, the butcher called up his neighbour and said, "Hey, if your dog stole a roast from my butcher shop, would you be liable for the cost of the meat?"The lawyer replied, "Of course, how much was the roast?""$7.98."A few days later the butcher received a cheque in the mail for $7.98. Attached to it was an invoice that read: 'Legal ConsultationService: $150.00.

Man: "No, you weren't the judge, you were my lawyer."

Attorney: And by whose death was it terminated?

A man went to his lawyer and told him, “My neighbour owes me $500 and he doesn’t want to pay up. What should I do?” “Do you have any proof?”, askedthe lawyer. “Nope,” replied the man. “Okay, then write him a letter asking him for the $1,000 he owes you,” said the lawyer. “But it’s only $500!” replied the man. “Precisely, that’s what he will reply and we will have the proof we need,” said the lawyer.

BY TEO HUI YI HAYLEY

Witness: Take a guess.

BY RACHEL LOW

BY CHONG WAI TENG VICTORIA

Citation: Nicole Tan Lee Koon. Lawyers- You can't live with them or without them.... 11 January 2006. (Online). Available from: <http://www. malaysianbar.org.my/lawyer_jokes/lawyers_you_ cant_live_with_them_or_without_them.html> Accessed 7th June 2011

Me: "how is it you were able to stay out of trouble for those five years?" Man: "I was in prison; you should know that—you were the one who sent me there." Me: "That's not possible; I wasn't even a judge then."

Citation: Philip R Riley, Reader’s Digest, <http:// www.readersdigest.co.za/ajx_cd?act=rotate_ jcq&type=4&uri=/Jokes/4?pageno=231&ch ar=75&tc=308&at=&pg=231&pageno=231& jk_tid=4&count=171&f=files&b=/> Accessed 23 June 2011

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Witness: Yes. Attorney: And what were you doing at that time? Witness: Getting laid Attorney: How was your first marriage terminated? Witness: By death.

Citation: LFB Law Firm Blogging <http://lawfirmblogging. com/2007/06/06/attorney-jokes-from-actual-trialexcerpts/> Accessed 23 June 2011

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