Commercial parties are entitled to know with certainty where they stand in contractual matters. ... more Commercial parties are entitled to know with certainty where they stand in contractual matters. This is especially the case for damages. The majority holding in Golden Strait Corporation v Nippon Kubishika Kaisha (The Golden Victory) that events subsequent to breach can be taken into account in the assessment of damages has been subject to searing criticism that it impairs commercial certainty. Despite these criticisms, the Supreme Court in Bunge SA v Nidera BV unanimously reaffirmed the compensatory principle in that it is necessary to take into account events occurring after termination in assessing damages where those events might affect the loss actually suffered.
The High Court decision of Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The M... more The High Court decision of Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The MTM Hong Kong) affirms that the compensatory principle mandates the assessment of actual loss resulting from the breach of a charterparty. Owing to the unexpected delay in obtaining a substitute charter after the original charterers had repudiated the charterparty, The MTM Hong Kong raised a previously unconsidered issue: is the court allowed to take into account the vessel owners’ losses occurring after the date that the charter voyage would have been completed? Under the Smith v M’Guire measure of compensation, an owner is conventionally only entitled to the difference between what the vessel would have earned if the charter voyage had been performed, and what the vessel actually earned during the period of the repudiated charter voyage. In this case, the owners contended that their actual loss was the difference between (a) profits comprising the contractual freight as well as the profits they would have earned from the next two voyages had the contract been performed and (b) the profit earned on the substitute charter. Males J held that in appropriate cases, such subsequent losses — if not too remote — could be taken into account, thereby departing from the conventional measure.
This article critically analyses the mess of illegality in one specific area: the restitutionary ... more This article critically analyses the mess of illegality in one specific area: the restitutionary aftermath of illegal contracts where the illegality is sourced in a statute. Its chief objective is to identify the real sources of difficulty underlying this area of the law so as to pave the way for meaningful reform. Two main reflections are offered. First, examining the case law, it points out that insufficient attention has been paid to various factors, including: the interface of common law rules and statute; the inexact science of statutory construction; different emerging methodologies in determining consistency; the rise of unjust enrichment and its impact on the evaluation of policy considerations. Mess and confusion regarding availability of restitutionary relief will persist unless these issues are addressed, although not all could be resolved. Second, regarding the structural analysis of the restitutionary claim, it argues that the question of whether “illegality” can operate as an unjust factor is more multi-faceted than at first sight appears. It also argues that English law should allow concurrent grounds for restitution.
This paper considers recent case law, including Equuscorp v Haxton [2012] HCA 7 and Patel v Mirza [2015] 2 WLR 405
This paper explores the divide between the law of contract and the law of restitution in dealing ... more This paper explores the divide between the law of contract and the law of restitution in dealing with the different situations that arise from one party commencing work prior to the conclusion of a formal contract. It argues that contract and unjust enrichment each have a proper role to play in dealing with such cases. First, it argues against a purely contractarian view that such cases should be exclusively resolved by the law of contract, through an implied collateral contract. Such a technique, applied vigorously, would result in nullifying the concept of "essential terms" and an artificial construction of parties' intentions. Second, it dispels the myths that the law of unjust enrichment is inadequate to deal with the problem, by clarifying the enrichment test and the unjust factor to be applied in such cases. It will be shown that the defendant's assumption of the risk of financial responsibility for the benefit is key to establishing tese two elements of the claim.
Singapore Management University School of Law 2020
This book is a collection of essays from scholars at Singapore Management University School of La... more This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the orderly transition to a sustainable future – the new normal.
This article examines the main monetary remedies for breach of fiduciary duty under Singapore law... more This article examines the main monetary remedies for breach of fiduciary duty under Singapore law: equitable compensation and account of profits. Both areas of law are in need of clarification, though for different reasons. The law on the account of profits appears stable and uncontroversial. There has not been an opportunity for the courts to consider more fully the proper limitations on the scope of account. However, the authorities that are on point suggest that the duty to account for profits follows almost as a matter of course from breach. In particular, causation between profits and breach is seemingly irrelevant for the errant fiduciary’s liability. This article, however, cautions against an overly simplistic analysis. The law on equitable compensation for breach of fiduciary duty is, by contrast, a muddied terrain as a result of recent developments in Singapore and elsewhere. This article focuses on the role as well as operation of the causation concept in monetary remedies...
This paper argues that the Pallant v Morgan equity should not be recognised as an independent doc... more This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly diffi...
The recent U.K. Supreme Court decision in Marley v. Rawlings, concerning the rectification of a w... more The recent U.K. Supreme Court decision in Marley v. Rawlings, concerning the rectification of a will pursuant to English legislation, raises two points of reflection for Singapore law. These points arise not from the ratio of the case, which was decided on a narrow legislative basis, but from the well-considered obiter dicta contained in Lord Neuberger's judgment.
This book is a collection of essays from scholars at Singapore Management University School of La... more This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the orderly transition to a sustainable future – the new normal.
The article critically reviews the litigation framework of the Chinese International Commercial C... more The article critically reviews the litigation framework of the Chinese International Commercial Court (‘CICC’) using a comparative approach, taking as a benchmark the Singapore International Commercial Court (‘SICC’)—another Asian international commercial court situated within the Belt and Road Initiative (‘BRI’) geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained by the differences in objectives. Whereas the SICC was created to compete for international judicial business and bolster Singapore as a leading dispute resolution hub, the CICC is presently designed to provide a legal safeguard in BRI disputes with Chinese elements. This article also iden...
This article considers two recent developments in Singapore private international law: the establ... more This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.
This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand ... more This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand Bank Group Limited on the rule against penalty clauses and situates its importance in light of the UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi and Beavis v ParkingEye Ltd. It compares the analytical frameworks laid down in the two cases and points out some unresolved issues in this area of law even following these cases.
Commercial parties are entitled to know with certainty where they stand in contractual matters. ... more Commercial parties are entitled to know with certainty where they stand in contractual matters. This is especially the case for damages. The majority holding in Golden Strait Corporation v Nippon Kubishika Kaisha (The Golden Victory) that events subsequent to breach can be taken into account in the assessment of damages has been subject to searing criticism that it impairs commercial certainty. Despite these criticisms, the Supreme Court in Bunge SA v Nidera BV unanimously reaffirmed the compensatory principle in that it is necessary to take into account events occurring after termination in assessing damages where those events might affect the loss actually suffered.
The High Court decision of Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The M... more The High Court decision of Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The MTM Hong Kong) affirms that the compensatory principle mandates the assessment of actual loss resulting from the breach of a charterparty. Owing to the unexpected delay in obtaining a substitute charter after the original charterers had repudiated the charterparty, The MTM Hong Kong raised a previously unconsidered issue: is the court allowed to take into account the vessel owners’ losses occurring after the date that the charter voyage would have been completed? Under the Smith v M’Guire measure of compensation, an owner is conventionally only entitled to the difference between what the vessel would have earned if the charter voyage had been performed, and what the vessel actually earned during the period of the repudiated charter voyage. In this case, the owners contended that their actual loss was the difference between (a) profits comprising the contractual freight as well as the profits they would have earned from the next two voyages had the contract been performed and (b) the profit earned on the substitute charter. Males J held that in appropriate cases, such subsequent losses — if not too remote — could be taken into account, thereby departing from the conventional measure.
This article critically analyses the mess of illegality in one specific area: the restitutionary ... more This article critically analyses the mess of illegality in one specific area: the restitutionary aftermath of illegal contracts where the illegality is sourced in a statute. Its chief objective is to identify the real sources of difficulty underlying this area of the law so as to pave the way for meaningful reform. Two main reflections are offered. First, examining the case law, it points out that insufficient attention has been paid to various factors, including: the interface of common law rules and statute; the inexact science of statutory construction; different emerging methodologies in determining consistency; the rise of unjust enrichment and its impact on the evaluation of policy considerations. Mess and confusion regarding availability of restitutionary relief will persist unless these issues are addressed, although not all could be resolved. Second, regarding the structural analysis of the restitutionary claim, it argues that the question of whether “illegality” can operate as an unjust factor is more multi-faceted than at first sight appears. It also argues that English law should allow concurrent grounds for restitution.
This paper considers recent case law, including Equuscorp v Haxton [2012] HCA 7 and Patel v Mirza [2015] 2 WLR 405
This paper explores the divide between the law of contract and the law of restitution in dealing ... more This paper explores the divide between the law of contract and the law of restitution in dealing with the different situations that arise from one party commencing work prior to the conclusion of a formal contract. It argues that contract and unjust enrichment each have a proper role to play in dealing with such cases. First, it argues against a purely contractarian view that such cases should be exclusively resolved by the law of contract, through an implied collateral contract. Such a technique, applied vigorously, would result in nullifying the concept of "essential terms" and an artificial construction of parties' intentions. Second, it dispels the myths that the law of unjust enrichment is inadequate to deal with the problem, by clarifying the enrichment test and the unjust factor to be applied in such cases. It will be shown that the defendant's assumption of the risk of financial responsibility for the benefit is key to establishing tese two elements of the claim.
Singapore Management University School of Law 2020
This book is a collection of essays from scholars at Singapore Management University School of La... more This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the orderly transition to a sustainable future – the new normal.
This article examines the main monetary remedies for breach of fiduciary duty under Singapore law... more This article examines the main monetary remedies for breach of fiduciary duty under Singapore law: equitable compensation and account of profits. Both areas of law are in need of clarification, though for different reasons. The law on the account of profits appears stable and uncontroversial. There has not been an opportunity for the courts to consider more fully the proper limitations on the scope of account. However, the authorities that are on point suggest that the duty to account for profits follows almost as a matter of course from breach. In particular, causation between profits and breach is seemingly irrelevant for the errant fiduciary’s liability. This article, however, cautions against an overly simplistic analysis. The law on equitable compensation for breach of fiduciary duty is, by contrast, a muddied terrain as a result of recent developments in Singapore and elsewhere. This article focuses on the role as well as operation of the causation concept in monetary remedies...
This paper argues that the Pallant v Morgan equity should not be recognised as an independent doc... more This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly diffi...
The recent U.K. Supreme Court decision in Marley v. Rawlings, concerning the rectification of a w... more The recent U.K. Supreme Court decision in Marley v. Rawlings, concerning the rectification of a will pursuant to English legislation, raises two points of reflection for Singapore law. These points arise not from the ratio of the case, which was decided on a narrow legislative basis, but from the well-considered obiter dicta contained in Lord Neuberger's judgment.
This book is a collection of essays from scholars at Singapore Management University School of La... more This book is a collection of essays from scholars at Singapore Management University School of Law analysing the challenges and implications of COVID-19 from the perspective of different areas of law, including private law, corporate law, insolvency law, data protection, financial laws, public law, privacy law, commercial law, constitutional law, law and technology, and dispute resolution. It also analyses how the COVID-19 pandemic will affect the judicial system, the study of law, and the future of the legal profession. Beyond considerations of the pandemic’s influence on law and legal service delivery the authors consider how law can help facilitate the orderly transition to a sustainable future – the new normal.
The article critically reviews the litigation framework of the Chinese International Commercial C... more The article critically reviews the litigation framework of the Chinese International Commercial Court (‘CICC’) using a comparative approach, taking as a benchmark the Singapore International Commercial Court (‘SICC’)—another Asian international commercial court situated within the Belt and Road Initiative (‘BRI’) geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained by the differences in objectives. Whereas the SICC was created to compete for international judicial business and bolster Singapore as a leading dispute resolution hub, the CICC is presently designed to provide a legal safeguard in BRI disputes with Chinese elements. This article also iden...
This article considers two recent developments in Singapore private international law: the establ... more This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.
This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand ... more This note discusses the High Court of Australia decision of Paciocco v Australia and New Zealand Bank Group Limited on the rule against penalty clauses and situates its importance in light of the UK Supreme Court decision of Cavendish Square Holding BV v Talal El Makdessi and Beavis v ParkingEye Ltd. It compares the analytical frameworks laid down in the two cases and points out some unresolved issues in this area of law even following these cases.
The jurisdictional framework of the Singapore courts has become more nuanced with the establishme... more The jurisdictional framework of the Singapore courts has become more nuanced with the establishment of the Singapore International Commercial Court (SICC) on 5 January 2015 and the signing of the Hague Convention on the Choice of Court Agreements 2005 (Hague Convention) on 25 March 2015. Although the Hague Convention has yet to be incorporated in domestic law, it is expected this will happen in the near future. The SICC project, on the other hand, is part of Singapore's strategy to promote the jurisdiction as an international dispute resolution hub. In essence, the SICC is a domestic specialist court established to deal with international commercial litigation. Adapted from the arbitral model but underpinned by judicial control, central to the SICC framework are party autonomy and flexible procedural rules. The Hague Convention complements the SICC project by increasing the number of jurisdictions in which Singapore judgments will be recognized and enforced. These 2015 developme...
RATIONALISING the doctrine of anticipatory breach is notoriously difficult. This may explain the ... more RATIONALISING the doctrine of anticipatory breach is notoriously difficult. This may explain the complete lack of attempt by the UK Supreme Court to address its conceptual difficulties in its recent judgment inBunge SA v Nidera BV[2015] UKSC 43; [2015] 3 All E.R. 1082. It is therefore of interest that the Singapore Court of Appeal inThe “STX Mumbai”[2015] SGCA 35; [2015] 5 S.L.R. 1 explained why the doctrine of anticipatory breach can be applied to executed contracts (in the sense of being fully executed by the innocent party). Whilst anticipatory breach applies similarly under English law, the English courts have never considered the underlying justification, save to say in a case with a partially executed contract that “it would be very strange and hardly unworkable” if the innocent party had to wait until the time for performance (Moschi v Lep Air Services Ltd.[1973] A.C. 331, 356, per Lord Simon).
The Court of Appeal decision in Scandinaviska Enskilda Banken AB (Publ), Singapore Branch v. Asia... more The Court of Appeal decision in Scandinaviska Enskilda Banken AB (Publ), Singapore Branch v. Asia Pacific Breweries (Singapore) Pte Ltd raised many issues of law, including those of agency, banking, tort and restitution. This note will focus on the restitutionary issues. The Court of Appeal was put in a tough spot of having to balance the justice between two victims of fraud and this may have resulted in a decision that puts the law of unjust enrichment in a difficult position.
Case note on the UK Supreme Court decision of Lloyds TSB Foundation for Scotland v Lloyds Banking... more Case note on the UK Supreme Court decision of Lloyds TSB Foundation for Scotland v Lloyds Banking Group Plc [2013] UKSC 3.
The Protection from Harassment Act 2014 (“Act”) was passed by Parliament on 13 March 2014 followi... more The Protection from Harassment Act 2014 (“Act”) was passed by Parliament on 13 March 2014 following its Second Reading. The Act is a culmination of a concerted ministerial effort to bring about legislative change to the laws governing harassment. Bringing together the background to the Act, its general structure and its specific provisions, this article aims to add to the undoubted long list of commentaries on the Act and, it is hoped, contribute to the understanding and enforcement of the Act.
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Case Notes by Man Yip
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This paper considers recent case law, including Equuscorp v Haxton [2012] HCA 7 and Patel v Mirza [2015] 2 WLR 405
Journal Articles by Man Yip
Books by Man Yip
Papers by Man Yip
This paper considers recent case law, including Equuscorp v Haxton [2012] HCA 7 and Patel v Mirza [2015] 2 WLR 405