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- Latest cases, legislation and regulation updates and commentaries
Tan Ruo Yu from the Commercial Litigation Practice wrote a case note on Then Khek Koon v Arjun Permanand Samtani [2014] 1 SLR 245 titled "Causation in Equitable Compensation - The Brickenden Rule in Singapore", in the recent issue of the Singapore Academy of Law Journal.
The controversial rule in Brickenden v London Loan & Savings Company of Canada [1934] 3 DLR 465 ("Brickenden") was recently introduced into the local jurisprudence on equitable compensation for breach of fiduciary duty. In Then Khek Koon v Arjun Permanand Samtani [2014] 1 SLR 245 ("Then Khek Koon"), the Singapore High Court accepted Brickenden as authority for the proposition that if a fiduciary is in one of the well-established categories of fiduciaries and has committed a culpable breach of his core duties of honesty and fidelity, he is liable to pay equitable compensation even if but-for causation cannot be proved.
The article argues that the importation of Brickenden into Singapore law and the formulation of the Brickenden rule in Then Khek Koon should, with respect, be reconsidered. Across the commonwealth jurisdictions, the soundness of the judgment in Brickenden has been seriously questioned by judges and academics. Furthermore, the formulation of the Brickenden rule in Then Khek Koon raises some conceptual and practical difficulties.
Ruo Yu wrapped up his article with a note that given the uncertainty of the law on equitable compensation in Singapore for some years, it is hoped that the Court of Appeal will provide an authoritative re-examination of this area of law. The appeal against the decision in Then Khek Koon was heard and dismissed by the Court of Appeal on 28 May 2014; a written judgment has not yet been issued.
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Kala Anandarajah, the head of the firm's Competition & Antitrust and Trade Practice, and Tanya Tang, the Principal Economist of the Practice Group, wrote an article titled "Competition Law in Asia – Protecting (Against) Competition?" published in the October 2014 (2) issue of the Competition Policy International (CPI) Antitrust Chronicle.
The article discusses the issue of whether competition law in Asia has been enforced in line with their stated objectives of protecting the competitive process and encouraging market entry and efficiency for the benefit of consumers, or whether they have been used as a veil for protectionism against foreign firm. The authors looked at the track record of competition authorities in Asia, including China and India, and observe that there is no clear evidence that foreign firms have been unfairly and more heavily targeted by competition authorities in Asia. It is noted that there could be objective justifications as to why foreign firms are more likely to find themselves the subject of antitrust investigations and infringement decisions.
Competition Policy International is a peer-reviewed academic journal that provides comprehensive resources and continuing education for the global antitrust and competition policy community. The Antitrust Chronicle is an online-only bimonthly magazine that produces papers on topical competitive policy topics.
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Kala Anandarajah, the head of the firm's Competition & Antitrust and Trade Practice, was featured in the 29 September 2014 issue of The Straits Times. The article recounts how Kala, a Public Service Medal awardee at this year's National Day Awards, worked in a variety of practice areas such as litigation, corporate, environmental law and corporate governance, before finding her niche in competition law. She has since been cited by legal journals such as The Legal 500 Asia-Pacific as a leading authority in compliance and competition issues on account of her involvement in major cartel / dominance investigations and several merger and other voluntary notifications and leniency applications. She is also named one of the top 100 women in the antitrust world by the Global Competition Review in 2013.
The article reports that Kala is also coordinating growth of the firm's practice in the Asean region.
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