COL 2 - Choice of Law PDF

Takeaways Choice of law rules connect legal issues to the law of a state. The three-stage choice of law rule applies to most issues that arise out of contractual claims or defenses. The double-actionability rule applies to tort claims and requires the claim to succeed under both the law of the fo...

Takeaways Choice of law rules connect legal issues to the law of a state. The three-stage choice of law rule applies to most issues that arise out of contractual claims or defenses. The double-actionability rule applies to tort claims and requires the claim to succeed under both the law of the forum and the law of the place of the tort. Procedural issues are governed by Singapore law, not choice of law rules. Foreign mandatory rules and the public policy exception can limit the application of choice of law rules. Andrew Yip (00:01.836) Welcome to our first substantive lecture for the Conflict of Laws module, which will be covering Choice of Law. Quick overview of this lecture. First, we\'re gonna talk about what choice of law rules are in general. The structure of them, what they\'re for, what they do. Second then, we\'re gonna talk about the choice of law rule that applies to contractual issues. We\'re gonna talk then about the choice of law rule that applies to tort issues. And finally, we\'re gonna talk about various doctrines which limit the application of both of these rules and any other choice of law rules in specific circumstances. Andrew Yip (00:43.148) So what are choice of law rules? Broadly speaking, choice of law rules are rules connecting a legal issue that arises in Singaporean proceedings with the law of a state, be it Singapore or foreign law. Two discrete issues here. The law that is selected by a choice of law rule must be the law of a state. It cannot be the law of, for example, an international organization, a law created by a religious organization or law created specifically by a sub -state community. must be the law of a state. or in federal states, the law of a jurisdiction within that state, for example, in the US, Delaware law, Arkansas law, New York law, than American law. But in every situation, it must be the law of a state. Second, choice of law rules connect legal issues rather than claims or defenses, let alone whole disputes to the law of a state. In a contractual dispute, there may be more than one I might bring a claim for breach of contract. Alternatively, I might bring a claim for restitution of unjust enrichment if I can\'t get the remedy I want for breach of contract. And in each of these claims, there might be specific issues. For example, if I\'m claiming for breach of contract, I have to prove first that the contract existed. I have to then prove that the contract was breached. I have to then prove the specific outcome of the breach, which should arise out of my claim. which my claim purports to lead to. And all these issues may be governed by different choice of law rules, may be governed by a different domestic or foreign. Andrew Yip (02:24.896) A note on terminology, the governing law of a claim or the Lex Kawazai is that law which the relevant choice of law rule leads to. So let\'s say there are two parties to a contract and they agree that Singapore law should apply. The Singaporean choice of law rule, as we will see in a second, generally states that if parties agree to a law of jurisdiction to apply to their contract and all issues arising out of it, then that law will apply. So if a Singaporean court adjudicates upon the contractual dispute and it applies the choice of law rule and thereby applies Singapore law. It is not applying Singapore law simply because it is a Singaporean court and because the dispute\'s been heard in Singapore. It is applying Singapore law because it is the governing law of the contract. It is the lex causae to the issue before the court. If parties, for example, had chosen Brazilian law, then the Singapore court would apply Brazilian law as the governing law of the contract in proceedings. Andrew Yip (03:30.51) Since, as I mentioned, we\'re going to focus on contract and tort in this course, we\'re only going to cover two choice of law rules in this lecture. The choice of law rule for contractual issues, which we can call the three -stage choice of law rule, and the choice of law rule for tort issues, which we can call the double -actionability rule, which also has this qualification to it called the flexible exception. There are, of course, other choice of law rules any kinds of issues that might arise in a private law claim of defense, and we will not be covering these in this course. But just be aware of the fact that the universe of choice of law rules is as broad as the universe of private law claims and defenses, and in practice, if you see a private law claim of defense with an international dimension, you should ask yourself, what is the specific choice of law rule that governs issues arising from its claim of defense? We\'ll now talk about the contract rule. Andrew Yip (04:29.292) The Court of View decision on Pacific recreation usefully sets out what we might call the three -stage choice of law rule for contract issues, which operates sequentially as follows. The first question courts ask is whether or not parties have expressly agreed to a choice of law to govern their contract, i.e. does the contract contain a clause saying this contract shall be governed or construed in accordance with the laws of Singapore or Malaysia or any other foreign jurisdiction. If parties do not expressly agree to a governing law for their contract, the court will then ask, well, have they impliedly agreed to a law to govern their contract? And then if so, that law will govern. Finally, if parties have not expressly nor impliedly chosen a law to govern their contract, the court will ask, well, objectively, what would reasonable businessmen in the positions of parties themselves have chosen to govern their contract? And then finally, that law will govern So we\'re now going to take the three stages of the choice of law rule in turn and we\'ll start of course with express choice. Generally, almost all the time an express choice of law by parties will be effective. It will be absolute. It doesn\'t really matter whether parties or the disputes have any connection with the chosen law. The law will simply just apply. So if I\'m a Singaporean person and I\'ve contracted with a Malaysian person and I\'ve chosen\... Japanese law to govern a transaction which is going to occur in the Philippines. It doesn\'t matter that Japanese law has nothing to do whatsoever with the parties of all the transaction, it will still apply. There\'s only one qualification to this and it\'s repeated sometimes like in the Court of Appeal decision of Pei Te Kui which is that the express choice of law must be bona fide and legal. But it\'s pretty hard to understand what this means because the Court of Appeal decision Pei Te Kui basically just said that a choice of law is not bona fide only if it\'s made for the sole purpose of choosing a governing law to evade the operation of a foreign law. What this implies is that, well, Andrew Yip (06:40.92) Generally, this kind of transaction says the court should be governed by law A, but you\'ve chosen law B solely to avoid the application of law A. But in most situations, arguably all situations in practice, parties don\'t choose law B just to evade law A. They choose law B because there\'s some kind of commercial benefit to that. And if there is a commercial benefit, says the Court of Appeal, then the express choice will be valid. The upshot of this is that in practice, basically every express charge of law will be valid. Andrew Yip (07:16.206) And in practice, 95%, close to 99 % of contracts will have an express choice of law clause. But sometimes there won\'t be an express choice of law clause, maybe because the contract is an oral contract, or maybe because the contract was hastily or badly drafted. And in such cases, the courts must move on to the implied and objective choice of law stages of the three -stage choice of law rule. Pacific Recreation tells us that courts will generally consider Various factors at both of these stages to determine the implied and objective choice of law. Not only that, they\'ll basically consider the same factors. Was there a jurisdiction or arbitration clause pointing towards a particular country? If so, that\'s a factor that that country\'s law might govern. Did a particular language get used throughout the contract? If so, a state which uses that language as its native tongue might be the governing law of the contract. Look at the form of the documents. Does it suggest that it\'s connec connected with any particular country, is there a proceeding transaction which the contract before the court is related to, like a contract of guarantee might be related to a loan. And if the proceeding contraction was governed by a particular law, the subsequent transaction is also likely governed by that law. Look at the currency of the contract. If the currency is that uniquely of one jurisdiction, then maybe that jurisdiction\'s law should govern the contract. Where do parties reside? Where do they carry their business? These are all connections which link locations to contracts. And finally, where was the contract to be performed? The place of performance, HBCL C, is a vital factor leading to or suggesting a particular law as a governing. If the same factors are considered at the implied and objective choice of law stages, what is the difference between the stages? Why not just jump to the third stage? Indeed in practice, most of the time there is no difference between the two stages and courts effectively do jump from the first stage, express choice of law, all the way to the third stage. But there\'s a subtle difference between the two. And a subtle difference is basically the difference between the implication of a term and the, well, creative insertion of a term by the court. Andrew Yip (09:27.69) In the implied choice of law stage, courts look at what the actual parties before the actually, but impliedly rather than expressly decided should govern their contract. But if they can\'t discern this, if there\'s not enough evidence to give rise to an inference that parties impliedly made a choice of law, then courts will ask, well, okay, parties actually didn\'t make any choice, but what would reasonable people in parties\' positions have done? And that leads to the objective choice of law. In practical terms, the difference is that at the implied trust of law stage, courts give these various factors the weight that the specific parties before the court, they think, the court thinks, would have given weight to these factors. Whereas at the third stage, at the objective trust of law stage, the court will weigh these factors from the perspective of the reasonable businessman. Now a few points on the importance of various factors at both the second and third stage of the choice of law rule. The place of performance is usually very important. Not least because if a contract is to be performed in a place which would render the contract unenforceable or difficult to enforce or would complicate enforcement one way or another, that should be a very relevant fact because contracts are abstract things until something actually happens in accordance to the contract. And the place where that thing happens is a very relevant indicator as to how, as to what parties probably should have intended the contract to be governed by. Second, the governing law of related transaction is very important. If contracts are, if two contracts are related, they\'re meant to operate in tandem or sequentially, it would make very little sense for one contract to be governed by one law and another to be governed by another law. Because if under one law, these contracts are invalid, but under another law, they are not invalid, what you then get is an interruption in the transaction. So related transactions are generally, courts will strongly infer that they are governed by the same law. Conversely, however, although the language and forms and currencies related to a contract are factors, they\'re not always important factors, especially when the language form and currency is a very internationalized kind of language form of currency. In Pacific Recreation itself, we saw Andrew Yip (11:44.342) Examples of this, right? The fact that a contract is in English language doesn\'t really mean anything because, well, many countries have English as their language of commerce, if not their official native language. The fact that a contract is denominated in US dollars doesn\'t really tell you much because many contracts will be denominated in USD simply because it is a commonly used currency in national transactions. It generally doesn\'t mean that the contract has anything to do with the US. So when an internationalized factor is at play, that doesn\'t really lend much weight to the investigation, to the implied and objective choice of law. Andrew Yip (12:28.248) So as I said, choice of law rules apply to issues, not claims. But the three -stage choice of law rule applies to most issues that arise out of contractual claims or defenses, including the validity of the contract, the interpretation of the contract, the enforceability of the contract, whether or not certain terms can be incorporated into the contract, how that contract is going to be performed, rules on breach or consequences of non -performance, and\... third party rights or privity issues, they all tend to be governed by this same choice of law rule. But there are certain examples of issues which are not governed by this three -stage choice of law rule. And these issues tend to generally do with the formation of the contract because it becomes a bit circular to look at a law which the contract itself stipulates should govern the contract to determine whether or not that very contract was even formed in the first place. Because if the justification for for the choice of law rule is party\'s choice, where the question is whether or not parties have even made the choice to enter the contract in the first place, the justification is a bit moot. And so for issues of the formation of the contract, agency in relation to the representatives of parties in forming the contract, and the capacity of parties to enter into these contracts, the three -state choice of law rule doesn\'t really apply. I will not be talking about these issues of formation, agency, and capacity in this course, nor will you be examined on these issues. I just wanna flag these out because they important exceptions to the three states\' choice of law rule and practice. Now we\'re gonna move on to the taught choice of law Andrew Yip (14:04.44) Broadly speaking, the choice of law rule is what is called the double actionability rule. As the Court of Appeal emphasized in Rickshaw Investments, this rule consists of two limbs, right? A tort claim will only succeed before a Singapore court if it would succeed under the law of the forum, i.e. Singapore law in this case, because Singapore is the forum, and would also succeed under the law of the place of the tort or delict the Lex Lokaid Lek Tai. So what this means is that you get a double or nothing effect for tort claims or other specific torts that are brought before Singaporean courts. In order for you to succeed in tort in Singapore, you have to succeed both under the law of the place where the tort occurred and Singapore law, right? If you succeed under one or either, you get nothing. So you have to cross both hurdles to succeed. Andrew Yip (15:04.086) A key aspect of the double -actionability rule then is the test that determines what the Lex Lugai del Leccei is. This test is what you might call the substance of the tort test. The court will look back over the serious events which the claimant alleges constitutes the tort in question and ask where in substance did this cause of action which the claimant is relying on occur? In other words, In essence, what really is the claimant complaining about and where did that thing happen? Let\'s say I am a Singaporean, well, I am a Singaporean, but I\'m a Singaporean and I have bought a product which I now allege is negligently manufactured and has caused me loss in Singapore. Let\'s say the product was manufactured in Germany. So if I\'m alleging that the product was negligently manufactured, then the thing that I\'m basing my claim in negligence on happened Germany, the negligent manufacturer. And so the cause of action that I\'m relying on, the Lex Loka Delicti, will be German law. Note that the substance of the tort occurs in this sense. It does not occur where I suffered damage. So in this situation, I wouldn\'t have suffered damage. I\'ve suffered damage in Singapore because I may have used the negligently manufactured product in Singapore, but that\'s not the substance of what I\'m alleging. I\'m not alleging that the defendants caused me loss because loss alone does not give rise to a cause of action. I\'m alleging that the defendant\... acted negligently and the negligence happened in Germany. Still less am I entitled to say, well, I may be Singaporean, but I have a bank account in let\'s say the US or in the UK or in Japan. My claim is not going to be governed by US or UK or Japanese law simply because that\'s where I suffered financial loss, because that\'s where my bank account is. It will be governed where the negligence I alleged occurred, occurred, which in this case is Germany. Andrew Yip (17:07.094) It should be clear then that the Lexnoguy delicti test is a very fact -specific test that varies depending on the nature of the cause of action that the claimant relies on. It should also be apparent that, unlike contract law for example, tort law knows many different kinds of causes of action. What this means is that the Lexnoguy delicti will look very different depending on what the cause of action the claimant relies on in the proceedings before the court is. So we\'re gonna go through some examples here, which are non -exhaustive course and practice, but which are exhaustive for the purposes of this course about how Singaporean courts will identify the lex nocai delicti depending on the cause of action the claimant relies on. When the claimant pleads negligence, the lex nocai delicti will be where the negligent conduct allegedly occurred. When the claimant pleads misrepresentation, the misrepresentation will be taken to have occurred where it was received and acted upon by the claimant. And when, well, claimant relies on the thought of conspiracy, the court will consider a bunch of factors, including the identity, importance of location of conspirators, the locations where any of the agreements giving rise to conspiracy took place, where the acts constituting the conspiracy took place, where the claimant is located, and where the claimant suffered losses. So conspiracy involves a very complex multi -factorial test, in large part because conspiracy is a complex thought. So we\'re not gonna go through any further examples because there are as many different examples as there are thoughts out there. But in general, when a court is asked, when one is trying to find out what the lex noca delicti for a particular thought claim is, one should ask generally, where in essence, that the wrong that the claimant is alleging occur. And more specifically, if there is a specific case in Singapore where it says, for negligence, well, the cause of action is taken to have risen where the allegedly negligent conduct occurred, then we will apply that rule. But if we don\'t have a specific rule for the cause of action in question, we rely on the general statement of the court. Where in essence did the cause of action arise? Andrew Yip (19:28.014) So the tort choice of law of rule is unique because it has two limbs. It has the lex fori limb and the lex loca delicti limb. The claimant must pass both to succeed. But it\'s also unique because it has this thing called the flexible exception. And it operates thusly. The double actionability rule is a default limb. And exceptionally, the court can set it aside. And this exception truly operates in a very flexible manner in that it can lead the court to disapply the Lex Forai Limb of the Double Actionability Rule and find that the entire tort is governed simply by the Lex Toca Delicti. Alternatively, it can disapply the Lex Toca Delicti Rule so that the entire tort is simply governed by the Lex Forai Singapore Law. Or it can apply, disapply both limbs of the rule and find that the entire tort is governed by the law of a third state. Andrew Yip (20:22.872) But the flexible exception, no matter how flexible, remains an exception. In other words, in the vast majority of cases, it will not apply. It applies only under very strict criteria. The law that is being dis -applied must be purely fortuitous. In other words, if the tort claim is only going to be governed by the Lex fory, it must mean the Lex loci delicti was only there by pure coincidence. If, on the other hand, it\'s supposed to dis -apply the Lex fory, it must be pure coincidence that the defendant for example is being sued before the Singapore courts. And if it\'s going to disapply both the Lex Friar and the Lex Tocadilicti and apply the law of a third state, it must mean that both the Lex Friar and the Lex Tocadilicti are purely fortuitous as well. In other words, the flexible exception will only operate in favor of choosing a governing law and indeed it can operate only in favor of one law when all the relevant facts surrounding that thought parties, identities, parties, places of residence, the nature of the transaction, where the loss occurred, even maybe whether the claimant suffered financial loss, all of these things all occur in one jurisdiction, such that that jurisdiction has such an overwhelming influence over the entirety of the tort that regardless of whether it is only Lex Forai or only Lex Oka Ligtai or neither of those two, common sense tells us that well, the law of this jurisdiction should govern the tort, simply because everything about this tort. is linked only to this one jurisdiction. And only in that situation will the flexible exception truly apply. In other situations, we\'ll stick with the double -actionability rule. And so the Court of Appeals said in the Vic Shaw Investments, in order that the exception might not overwhelm the rule, in order that it might stay truly an exception, it is imperative that it be strictly applied. Andrew Yip (22:09.73) The last thing we\'re going to touch on in this lecture is the limits that are sometimes placed on choice of law rules. Most of the time, once you allocate the relevant issue to the relevant choice of law rule and then to the relevant governing law, that\'s end of the story. But every once in a while, there are certain rules that apply which limit the impact of choice of law rules. And we\'re going to consider three such limits in this lecture. The first we will call the issue, the limit of procedural issues. The second is the limit imposed by foreign mandatory rules. and the third is the limit imposed by the public policy exception. Andrew Yip (22:47.608) First, we\'re gonna talk about procedural issues. As I mentioned, choice of law rules apply not to claims or defenses, but to substantive issues that arise out of claims of defenses, i.e. the validity of a contract, i.e. the actionability of a tort. By contrast, they don\'t apply to procedural issues, which are issues that don\'t relate to the substance of party\'s claim, but relate to, well, broadly speaking, how the court deals with all how the civil proceedings before the court are going to be carried out. so procedural issues are governed by a different choice of law rule, you might say. And this choice of law rule exclusively selects Singapore law as the next for right to govern procedural issues. So you can call this an exception to the choice of law process, or you can consider this different choice of law rule that selects Singapore law exclusively to govern all procedural issues arising out of parties, claims, and defenses. So what are some examples of procedural issues? Well, most procedural issues are those that don\'t determine whether the claimant has a claim, but how the Singapore Court should give effect to the claimant\'s claim, which is governed by Singapore law or foreign law. This is a pretty abstract statement and doesn\'t really help us much in practice, so I\'m just going to go through a few examples which, again, are not exhaustive, but you can take as exhaustive the purposes of this course. So most\... purely evidential issues are issues that are procedural in nature. Like if a question arises, it had to be as to whether or not a form of evidence can be emitted, what kind of weight should be given to it, whether or not a presumption should apply, given the claimant having proved a certain fact, whether the court should presume another fact exists. These are all issues which\... are governed by civil procedure law, by evidence law and therefore governed purely by Singapore law rather than the Lex Kao Zai or the governing law of the claim. The availability of certain remedies. was historically said that remedies, rights were governed by the Lex Kao Zai but remedies were governed by the Lex Forai. That no longer appears true, especially after Goh Swan Hee where the Court of Appeal strongly suggested Andrew Yip (25:01.464) While the quantification of damages or the availability of damages should also be an issue governed by the substantive law that governs the claim,.e. the Lex Causse. But there remain certain remedies, for example, certain kinds of injunctions which might be available under foreign law, which you couldn\'t plausibly conceive a Singapore court issuing, or which would be very inconvenient for a Singaporean court to issue. And these injunctions or orders, these remedies will\... The availability thereof will be governed by Singapore law, which means that in practice they will never be available before Singapore courts. But by and large, most remedies, whether or they\'re available or not, are questions for the governing law of the claim rather than Singapore law. Questions of whether or not a particular claim in contract or tort is time -limited or time -barred, this used to be a question that was governed exclusively by Singapore law\'s Lex Foray. Now, thanks to the Foreign Limitation Periods Act, this is also an issue which should be governed by the substantive law of the claim. There is an exception to this, which apply only in very specific situations, usually situations where the foreign limitation period is so onerous that the claimant\'s claim might be time barred even without the claimant having unduly delayed in bringing his claim. But this exception applies very, very, very rarely. Most of the time, foreign limitation, the foreign law claim will be governed by a foreign limitation period by virtue of the Foreign Limitation Periods Act. Andrew Yip (26:26.638) The second limitation on the choice of law process we\'re going to discuss are forum mandatory rules. Now these refer to a certain class of Singaporean statutes. And they\'re relevant to us because choice of law rules, the ones we\'ve explored so far, are common law rules and all common law rules can be written by statute. And well, they can be overwritten in two ways. First, the statute itself can express the choice of law rule, in which case we just follow the statute, which is not the kind of situation we\'re concerned with here. Or second, the statute can say, regardless of the choice of law rule that will apply to this issue normally, the statute is gonna say, this issue is gonna be governed exclusively by Singapore law. And so that\'s why it\'s called a forum mandatory rule. It chooses the forum law mandatorily. So when does the statute qualify as a forum mandatory rule? Most obviously, if the statute itself expressly says for certain issues, Singapore law will apply, then it\'s an express forum mandatory rule or forum mandatory statute. But these are pretty rare. Most of the time, a foreign mandatory rule is found by implication. A statute is impliedly said to be a foreign mandatory rule. This is quite rare as well. And relevant for us is the test that courts use to determine whether or not a statute is an implied foreign mandatory statute or a foreign mandatory rule. So the test that is set up in GIO minerals is that if a rule forms a regulatory or protective function, i.e. it has a certain public interest flavour, then it\'s arguable that that rule is meant to apply as a forum mandatory rule to override what might otherwise be the applicable choice of law rule. By contrast, if the relevant statute, Singaporean statute, only has a supplementary effect that\'s meant to enhance or add on to existing private law rights, then it\'s said not to be a forum mandatory The test is pretty vague and there aren\'t many examples of it being applied clearly in practice, so I\'m not really going to focus on this course, much less in the exam itself, but just know that there is an important issue here as to whether or not a statute overrides expressly or impliedly a choice of law of and that this can arise in practice, so be aware of the relevance of this doctrine in practice. Andrew Yip (28:49.73) The last exception or limit to the choice of law process we\'re gonna talk about is the public policy exception. So when a Singaporean court applies a foreign law by virtue of a choice of law rule, it can ask whether or not a specific rule in the foreign legal system is so repugnant to Singaporean public policy that the Singapore court is just going to act as if it didn\'t exist at all when it\'s applying foreign law. So for example, let\'s say two parties have a contract between them and the contract is governed by the law of a foreign state. But the of the foreign state says that a contractual claim can only be brought by a person of a certain race, of a certain age, of a certain gender. The Singapore court is likely to find that that rule of foreign law is so racist or discriminatory that it\'s likely to, well, offend Singaporean fundamental public policies and so the Singapore court will act as if that foreign law rule which discriminates simply doesn\'t exist. when it\'s applying foreign law. The governing law still remains foreign law. It\'s just that that repugnant rule of foreign law simply will be taken not to exist. So the idea behind the public policy exception is that while choice of law rules are meant to make Singapore courts more open -minded about the kinds of rules that can apply, they won\'t always apply Singapore laws. There is a tension here because sometimes foreign law is so egregious and so contrary to Singapore sensibilities that it would bring while the Administration of Justice in Singapore ought to disrepute if a foreign law so odious were applied by a Singapore court. But there is a tension, and the tension is this. Singapore courts are meant to be open -minded, but not so open -minded. So the public policy exception cannot simply cut out every foreign law which a Singaporean court disagrees with, if not, then no foreign law would ever apply. Instead, the public policy exception can only apply when the foreign rule in question will violate a fundamental public policy of Singapore. as the Court of Appeal has put it in Burswick nominees, the foreign law rule in question must violate some fundamental principle of justice, some prevalent conception of good morals, some deep -rooted tradition of the common weal in Singapore for the public policy exception to apply to negate its existence before the Singapore Andrew Yip (31:10.862) What are some examples of foreign law rules which will violate fundamental public policies of Singapore? The example I earlier is one. Another example might be a foreign law rule violating a fundamental common law principle, like the principle of separately good personality. law rule which made the debtors of a company liable for all its debts, sorry, shareholders of a company liable for all its debts, then I\'m, or the directors of a company liable for all its debts, then I suspect that the Singaporean court would ignore the existence of that rule for the purpose of applying foreign law because it seems so fundamental and so essential to the idea of company law in Singapore. Finally, we have this category of statutory policies. And it\'s a bit of an ambiguous question as to what these are and whether or not these do indeed amount to fundamental public policies. In Desert Palace, it was said that there was a statutory public policy against unregulated gambling in Singapore and that this therefore trumped every choice of law rule out there because choice of law rules are common law rules, fundamental public policies are common law policies, and statutes being higher than common law should mean\... that statutory policies are higher than common law rules and higher than other common law fundamental public policies. In other words, any public policy that comes from a statute is of the highest importance. I\'m not sure this is exactly true because statutes might trump common law rules, but statutory policies are perforce not contained in the statutes themselves. If not, those would be foreign mandatory rules, which we just talked about earlier. So it\'s an open question as to what statutory policies are as compared to foreign mandatory rules. and why these should trump choice of law rules, but there\'s this category recognized in Singapore law in Desert Palace and which remains open for the purposes of Singapore law. Conflict of Laws - Lecture 2: Choice of Law - A. Contract - The **[3-stage]** choice of law rule - Principles - Pacific Recreation Pte Ltd v S Y Technology Inc \[2008\] 2 SLR(R) 491 (SGCA), \[35\]-\[50\] / **[Overseas Union Insurance]** - Factors for objective and implied stage - The conclusiveness of express choices of law - **[the choice of law must be bona fide and legal]** - Peh Teck Quee v Bayerische Landesbank Girozentrale \[1999\] 3 SLR(R) 842 (SGCA), \[12\]-\[18\] - The importance of the **[place of performance]** - First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd \[2013\] 2 HKC 459 (HKCFA), \[53\]-\[56\] - Formation and agency are not covered by the 3-stage rule - B. Tort - The "double actionability" rule and the "flexible exception" - **[the Double actionability rule is the general rule, unless the flexible exception applies.]** - Rickshaw Investments Ltd v Nicolai Baron von Uexkull \[2007\] 1 SLR(R) 377 (SGCA), \[52\]-\[73\] - **[Double actionability rule does not apply where it is a local tort / Double actionability rule should only be applued to achieve justice.]** - What are the \'connecting factors\' / Limits - **[The disapplied law must be purely fortuitous (Rickshaw)]** - The lex loci delicti -- general and specific (i.e. law of the place of the tort) - MAN Diesel & Turbo SE v IM Skaugen SE \[2020\] 1 SLR 327 (SGCA), \[107\]-\[109\] - **[Where the tort was absence of communication then the action arose within the jurisdiction (i.e. where the negligent conduct occured)]** - JIO Minerals FZC v Mineral Enterprises Ltd \[2011\] 1 SLR 391 (SGCA), \[90\]-\[95\] - **[where the misrepresentation was received and acted upon]** - Raffles Education Corporation Ltd v Shantanu Prakash \[2020\] SGHC 83, \[49\]-\[51\], \[58\]-\[67\] **[- Where the fraudulent misrepresentation took place.]** - EFT Holdings - **[Where the conspiracy was most concern]** - C. **[Exceptions]** to the choice of law rules - \[1\] Procedural issues - Goh Suan Hee v Teo Cher Teck \[2010\] 1 SLR 367 (SGCA), \[16\]-\[22\] - **[e.g. injunctions that are available foreign law may be inconvenient to for the Singapore court to issue; Where the flexible exception does not operate, the lex causae is the lex loci delicti.]** - Foreign Limitation Periods Act 2012 ss 3-4 - **[law of Singapore relating to the limitatio does not apply]** - \[2\] Forum mandatory rules - JIO Minerals FZC v Mineral Enterprises Ltd \[2011\] 1 SLR 391 (SGCA), \[97\]-\[105\] - **[was it Parliament\'s intention that the statute apply outside the territory of Singapore?]** - \[3\] Public policy - **[Would enforcemnt of a rule contravene Singapore public policy?]** - Liao Eng Kiat v Burswood Nominees Ltd \[2004\] 4 SLR(R) 690 (SGCA), \[26\]-\[32\], \[41\]-\[46\] - Oppenheimer v Cattermole \[1976\] AC 249 (UKHL), 281-284 Poh Soon Kiat v Desert Palace Inc \[2010\] 1 SLR 1129 (SGCA), \[111\]-\[113\]