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Teaching More Civil Law at the National University of Singapore: A Necessity for Singapore as a Legal Hub for Asia

Published online by Cambridge University Press:  09 July 2019

Gary F BELL Open the ORCID record for Gary F BELL [Opens in a new window]
Gary F BELL*
Affiliation:
Faculty of Law, National University of Singapore, [email protected]
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Abstract

Singapore aims to be a legal service hub for its region and, therefore, aims to provide legal services to the civil law countries of Southeast and East Asia. One would therefore think that the teaching of at least the rudiments of the civil law (the law of obligations – contracts, delictual liability (tort), quasi-contracts – and property) would be a high priority. However, for all its talk of being ‘Asia's Global Law School’, the NUS Law School does not train its students to handle work from, or in, most of this region. The students are simply not required to learn the very foundations of the civil law tradition. The requirement that they take a course entitled ‘Legal Systems of Asia’ does not ensure that they know the very basics of the civil law. The fact that they must take a course on the law of a civil law country does not ensure that they learn about the civil law. This article suggests how the NUS Law School can make sure that it prepares its students, or at least some of its students, for regional work that includes civil law work.

Type
Article
Information
Asian Journal of Comparative Law , Volume 14 , Supplement S1 , October 2019 , pp. S173 - S193
Copyright
Copyright © National University of Singapore, 2019 

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Footnotes

*

Associate Professor, Director of the Asian Law Institute (ASLI), Faculty of Law, National University of Singapore. My thanks to Lance Ang and Chong Siew Men, Research Associates at the Centre for Asian Legal Studies (CALS), for their research assistance on this article. Any shortcomings or mistakes, and all opinions, are entirely mine. My thanks to the ASLI and CALS at the National University of Singapore (NUS) for supporting my participation at the conferences entitled ‘The State of Comparative Law in Asia’ and ‘Teaching Comparative Law in Asia’ on 27 and 28 September 2017, which led to this article and this special issue.

References

1. Most of Central Asia and West Asia (known as the Middle East in the West) are also governed by the civil law.

2. Elective courses are optional courses.

3. Conditions were imposed, including commitment on the part of the firm to grow their presence in Singapore. Incentives sometimes included tax breaks, for example when a firm increased its arbitration practice. For more details on the efforts of the government and the evolution of the regulations, see Bell, Gary F, ‘Global Lawyers for a Global City: Legal Education in Singapore’ in Jamin, Christophe and van Caenegem, William (eds), The Internationalisation of Legal Education (Springer 2016) 233–54CrossRefGoogle Scholar.

4. Qualifying Foreign Law Practice licences were given to Allen & Overy, Clifford Chance, Latham & Watkins, Norton Rose, White & Case, and Herbert Smith, which were all originally from common law jurisdictions; Singapore Ministry of Law, ‘Award of Qualifying Foreign Law Practice Licences’ (Singapore Ministry of Law 5 December 2008) <www.mlaw.gov.sg/news/press-releases/award-of-qualifying-foreign-law-practice-licences.html> accessed 21 May 2019.

5. Bell (n 3) 242–44. ‘The status most coveted by foreign firms is the Qualifying Foreign Law Practice (QFLP) as it allows the foreign firm to practice some aspects of Singapore law without having to enter into a joint venture or law alliance with a local firm.’: ibid 243.

6. The government took many measures favourable to arbitration, including allowing non-resident arbitrators and lawyers the right to practise Singapore law in an arbitration, and granting them tax exemption on their revenues while in Singapore. For more details, see Bell, Gary F, ‘Singapore: Commentary on the International Arbitration Law’ in Bergsten, Eric E (ed), International Commercial Arbitration, vol 6 (Oceana, Release 2012–2014, issued October 2012)Google Scholar (looseleaf). The government has also similarly and more recently promoted Singapore as a hub for international mediation. See Indranee Rajah, ‘Mediation Moves’ (Singapore Ministry of Law 31 January 2017) <www.mlaw.gov.sg/content/dam/minlaw/corp/News/Industry%20Newsletters/Note%20on%20Mediation%20Act.pdf> accessed 21 May 2019.

7. ‘The five most preferred and widely used seats are London, Paris, Hong Kong, Singapore and Geneva. … Respondents expressed the view that the most improved arbitral seat (taken over the past five years) is Singapore, followed by Hong Kong.’: Queen Mary University of London, ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’ (Queen Mary University of London, Centre for Commercial Law Studies, School of International Arbitration 2015), 2 <www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf> accessed 21 May 2019. In 2018, the SIAC alone had 402 new arbitration cases, which was more than the 317 new cases handled by the London Court of International Arbitration (LCIA) in the same year. See SIAC, ‘SIAC Annual Report 2018’ (SIAC 2018), 14 <www.siac.org.sg/images/stories/articles/annual_report/SIAC_AR2018-Complete-Web.pdf> accessed 21 May 2019 (SIAC Annual Report 2018). See also LCIA, ‘LCIA 2018 Annual Casework Report’ (LCIA 2018) <www.lcia.org/media/download.aspx?MediaId=772> accessed 21 May 2019.

8. It is impossible to obtain statistics on the governing law for all arbitrations seated in Singapore – there are no such statistics because ad hoc arbitrations and institutions, such as the LCIA and ICC, do not keep statistics on choice of law specifically for those cases seated in Singapore. The statistics of the SIAC on the governing law for cases it has administered will give us a good idea of how few cases seated in Singapore are governed by the civil law. It should also be noted however that some SIAC arbitrations may have their seat outside of Singapore. The SIAC statistics are therefore indicative but not conclusive of the percentage of cases seated in Singapore which are governed by the civil law.

9. SIAC (n 7) 21.

10. From the list of parties found in the SIAC Annual Report 2018 (n 7), I counted 372 parties (33%) from civil law jurisdictions, 709 parties (63%) from common law jurisdictions, and 36 parties (3%) from mixed jurisdictions for a total of 1,117 parties. Notwithstanding the fact that 33% of parties come from civil law jurisdictions, probably much less than 13% of contracts in dispute are governed by the civil law, as was mentioned above.

11. That is, they choose an arbitration under the Rules of Arbitration of the ICC: ICC, ‘Rules of Arbitration of the International Chamber of Commerce’ (ICC 1 March 2017) <https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/> accessed 21 May 2019.

12. It should be pointed out that as of May 2019, the SIAC has on its panel of arbitrators 159 jurists residing in civil law jurisdictions who may be presumed to know the civil law in addition to numerous jurists residing in common law jurisdictions who may have been trained in the civil law, and therefore the SIAC can appoint tribunals with expertise in civil law. See SIAC, ‘SIAC Panel’ (SIAC) <www.siac.org.sg/our-arbitrators/siac-panel> accessed 21 May 2019. Perhaps the perception that the SIAC and Singapore are too common law oriented is due to the fact that in the past, the impression was given that SIAC would sometimes appoint common law lawyers for a matter governed by the civil law. This may no longer be the case.

13. ‘The laws of England and USA States remained the most frequent choices, followed by French and Swiss law.’: ICC, ICC Dispute Resolution Bulletin 2018, Issue 2 (ICC Services July 2018), 61 <https://iccwbo.org/content/uploads/sites/3/2018/07/2017-icc-dispute-resolution-statistics.pdf> accessed 21 May 2019.

14. HKIAC, ‘Annual Report 2017 Reflections’ (HKIAC 2017), 9 <www.hkiac.org/sites/default/files/annual_report/2017%20HKIAC%20Annual%20Report%203469-5010-8172%20v.1.pdf> accessed 21 May 2019.

15. In normal common law proceedings, a foreign law is a fact that needs to be proven by expert witnesses on the foreign law. On the application of a party, however, the SICC may order that foreign law be determined on the basis of submissions by lawyers rather than through expert opinion. This would allow counsel to proceed as one could in an international arbitration – the lawyers can plead the foreign law without having to call expert witnesses on that law. See Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), s 18L (Singapore). See also Rules of Court (2014 Rev Ed), O 110, r 25 (Singapore).

16. As of September 2018, the judges from civil law jurisdictions are Justice Dominique T Hascher from France and Justice Yasuhei Taniguchi from Japan. SICC, ‘Judges’ (SICC, 10 January 2019) <www.sicc.gov.sg/about-the-sicc/judges> accessed 21 May 2019.

17. Singapore Ministry of Law, ‘Speech by Senior Minister of State for Law, Indranee Rajah, at the Regional Insolvency Conference 2014’ (Singapore Ministry of Law 25 August 2014) <www.mlaw.gov.sg/content/minlaw/en/news/speeches/speech-by-sms-at-regional-insolvency-conf-2014.html> accessed 21 May 2019.

18. The Singapore Academy of Law has the Promotion of Singapore Law Committee chaired by Justice Vinodh Coomaraswamy, on which I sat in the past. See Singapore Academy of Law, ‘Senate & Committees’ (Singapore Academy of Law) <www.sal.org.sg/About-Us/Senate-Committees/Legal-Development-Cluster> accessed 21 May 2019.

19. Bell (n 3).

20. Zweigert, Konrad and Kötz, Hein, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 21–22Google Scholar. For a short but detailed review of the aims of comparative law, see Glenn, H Patrick, ‘Aims of Comparative Law’ in Smits, Jan M (ed), Elgar Encyclopedia of Comparative Law (Edward Elgar 2006) 57Google Scholar.

21. Please note that this map only indicates whether a jurisdiction's law has been influenced by the civil law or the common law, or both. It does not indicate the numerous other legal traditions present in Asia such as Islamic law for example. The map also does not make the claim that the civil law or the common law is necessarily the main influence on a national legal system – for example there has been some influence of the civil law in Saudi Arabia, but it is very limited (mainly with respect to legislative style) and Islamic law is truly the main, dominant, and prevalent law. This map was created by this author using mapchart.net: <https://mapchart.net/feedback.html> accessed 21 May 2019. Any mistake is the author's.

22. Cambodia, Indonesia, Laos, the Philippines, Thailand, and Vietnam.

23. Badan Koordinasi Penanaman Modal (BKPM) [Indonesia Investment Coordinating Board], ‘Domestic and Foreign Direct Investment Realization in Quarter IV and January – December 2016’ (BKPM 25 January 2017) <www.bkpm.go.id/images/uploads/investasi_indonesia/file/Bahan_Paparan_-_Eng_-_TW_IV_2016-250117_FINAL.pdf> accessed on 21 May 2019. In that year, Singapore was the source of 27.4% of investments in Indonesia, while China and Japan brought in 14.3% and 12% of investments respectively. Even if we put Mainland China and Hong Kong together, they were the source of 23.5% of investments, still less than those from Singapore.

24. ‘In 2016, Singapore was the third largest source of FDI into Vietnam, accounting for 9.9 percent at US$2.41 billion.’: Andrea Bottega, ‘Vietnam – Singapore Trade and Investment Relations’ (Vietnam Briefing, Dezan Shira & Associates 25 August 2017) <www.vietnam-briefing.com/news/vietnam-singapore-trade-and-investment-relations.html/> accessed 21 May 2019.

25. ‘In 2017, total bilateral trade between Singapore and China reached S$137.1 billion. In 2016, Singapore's cumulative investment in China amounted to S$123.5 billion while China's cumulative investment in Singapore amounted to S$24 billion. China is Singapore's largest trading partner while Singapore is China's largest foreign investor since 2013.’: Singapore Ministry of Trade and Industry, ‘China and Singapore Sign Upgraded Agreement’ (Press Release, Singapore Ministry of Trade and Industry 12 November 2018) <www.mti.gov.sg/-/media/MTI/Newsroom/Press-Releases/2018/11/Press-Release---China-and-Singapore-Sign-Upgraded-Agreement_12-Nov.pdf> accessed 21 May 2019.

26. This can in part be addressed by forging alliances with local firms in the region, but that would not be as efficient in my view as having lawyers and partners familiar with the civil law within the firm.

27. Bell (n 3) 245 (emphasis added).

28. ibid 252.

29. Peking University School of Transnational Law <http://stl.pku.edu.cn> accessed 21 May 2019.

30. Soochow University School of Law <https://web-en.scu.edu.tw/lex> accessed 21 May 2019.

31. Universitas Internasional Batam, ‘Ilmu Hukum [Legal Studies]’ <www.uib.ac.id/id/hukum/> accessed 21 May 2019.

32. For the reader unfamiliar with Singapore and Batam, from Singapore, one can reach the Indonesian island southeast of Singapore by ferry within an hour.

33. I should disclose that, as a law student, I was trained in both civil (BCL) and common law (LL.B.) at McGill University through what was then called the national programme. Later, I also taught as an Assistant Professor in that programme at McGill University for three years before leaving McGill University to join NUS. I was a member of the committee that started the discussions on the proposed new ‘McGill Programme’ which was eventually adopted, and which integrates the teaching of civil and common law in all core courses.

34. United Nations Convention on Contracts for the International Sale of Goods (adopted 11 April 1980, entered into force 1 January 1988) 1489 UNTS 3.

35. Professor Kevin Tan authorized me to mention his name as co-author of this proposal.

36. Academic Affairs Review Committee, ‘Compulsory Core Law Curriculum’ (Report, Academic Affairs Review Committee 4 January 2002) (on file with author).

37. NUS, ‘Search Modules’ (NUS) <https://inetapps.nus.edu.sg/bulletin/msearch.aspx?code=&title=Legal+Systems+of+Asia> accessed 21 May 2019.

38. NUS, ‘Search Modules’ (NUS) <https://inetapps.nus.edu.sg/bulletin/msearch.aspx?code=&title=Contract+and+Commercial+Law+in+Civil-Law+Asia> accessed 21 May 2019.

39. In academic year 2014–15, NUS offered the following elective courses on international, comparative, or Asian law: Arbitration of Investment Disputes; ASEAN Economic Community Law and Policy; Asian Legal Studies Colloquium; Aviation Law & Policy; China, India and International Law; Chinese Commercial Law; Chinese Contract Law; Chinese Corporate and Securities Law; Chinese Legal Tradition & Legal Chinese; Civil Law Tradition; Climate Change Law & Policy; Comparative Conflict of Laws; Comparative Constitutional Government; Comparative Constitutional Law; Comparative Corporate Governance; Comparative Environmental Law; Cross Border Mergers; Developing State in a Changing World Order; European Company Law; Globalization & International Law; Government Contracts: Int'l & Comparative Perspectives; Human Rights in Asia; Indian Business Law; Indonesian Law; International & Comparative Law of Sale in Asia; International and Comparative Oil and Gas Law; International Commercial Arbitration; International Commercial Litigation; International Economic Law & Globalisation; International Environmental Law & Policy; International Humanitarian Law; International Investment Law; International Law and Asia; International Legal Process; International Legal Protection of Investment Flows; International Projects Law and Practice; International Tax Law; Islamic Law; Law & Politics in South Asia; Law, Economics, Development, and Geography; Law, Governance & Development in Asia; Law, Institutions, and Business in Greater China; Maritime Conflict of Laws; Ocean Law & Policy in Asia; Public International Law; The Contemporary Indian Legal System; The EU and its Law; The Law of Treaties; The Use of Force in International Law; Topics In The Civil Law Tradition (A): EU Harmonisation, Trade Remedy Law & Practice; United Nations Law and Practice; and World Trade Law.

40. As mentioned above, none was offered in the past five academic years.

41. Bell (n 3) 245 (emphases added).

42. NUS Law School, ‘NUS Curriculum Review Discussion Paper’ (Curriculum Review Committee, 19 November 2012), 6 <https://law.nus.edu.sg/about_us/curriculum_review/CRC_Discussion_Paper_2012.pdf> accessed 21 May 2019.

43. Only one local colleague has a master's degree in civil law.

44. NUS Law School (n 42) 6

45. We have such programmes with NYU, Boston University, Erasmus University (Rotterdam), King's College London, University of Melbourne, and University of Toronto: NUS Law School, ‘Undergraduate Programmes’ (NUS) <https://law.nus.edu.sg/admissions/llb_prog.html> accessed 21 May 2019. Erasmus University (Rotterdam) is a civil law law school, but the courses offered in English that the NUS students would take do not cover the core of the civil law. This can be seen by consulting the courses offered in the three master's programmes covered by the exchange. The Erasmus LL.M. programme in Commercial and Company Law does not offer any core civil law courses, see Erasmus School of Law, ‘Commercial and Company Law’ (Erasmus School of Law) <www.eur.nl/en/esl/master/commercial-and-company-law/study-programme> accessed 21 May 2019. The Erasmus European Master in Law and Economics also does not offer any core civil law courses, see Erasmus School of Law, ‘Master in Law and Economics’ (Erasmus School of Law) <www.eur.nl/en/esl/post-master/european-master-law-and-economics/study-programme> accessed 21 May 2019. The same is true of the Erasmus programme ‘Maritime and Transport Law’, a specialization of the LL.M. in Commercial Law, see Erasmus School of Law, ‘Maritime and Transport Law’ (Erasmus School of Law) <www.eur.nl/en/esl/master/maritime-transport-law/study-programme> accessed 21 May 2019.

46. The other 200 students would continue to be taught only the common law core courses as they are currently taught, ie either in four sections of 50 students or in lectures and tutorials for all 200 students.

47. Blackett, Adelle, ‘Globalization and its Ambiguities: Implications for Law School Curricular Reform’ (1998) 37 Columbia Journal of Transnational Law 57Google Scholar; Jutras, Daniel, ‘Énoncer l'indicible: le droit entre langues et traditions [To State the Inexpressible: Law between Languages and Traditions]’ (2000) 52 Revue internationale de droit comparé [International Comparative Law Review] 781CrossRefGoogle Scholar; Bédard, Julie, ‘Transsystemic Teaching of Law at McGill: “Radical Changes, Old and New Hats”’ (2001) 27 Queen's Law Journal 237Google Scholar; Morissette, Yves-Marie, ‘McGill's Integrated Civil and Common Law Program’ (2002) 52 Journal of Legal Education 12Google Scholar; Kasirer, Nicholas, ‘Bijuralism in Law's Empire and in Law's Cosmos’ (2002) 52 Journal of Legal Education 29Google Scholar; Kasirer, Nicholas, ‘Legal Education as Métissage’ (2003) 78 Tulane Law Review 481Google Scholar; Mestral, Armand de, ‘Bisystemic Law Teaching – The McGill Programme and The Concept of Law in the EU’ (2003) 40 Common Market Law Review 799Google Scholar; Janda, Richard, ‘Toward Cosmopolitan Law’ (2005) 50 McGill Law Journal 967Google Scholar; Glenn, H Patrick, ‘Doin’ the Transsystemic: Legal Systems and Legal Traditions’ (2005) 50 McGill Law Journal 863Google Scholar; Praagh, Shauna van, ‘Navigating the Transsystemic: A Course Syllabus’ (2005) 50 McGill Law Journal 701Google Scholar; Jukier, Rosalie, ‘Where Law and Pedagogy Meet in the Transsystemic Contracts Classroom’ (2005) 50 McGill Law Journal 789Google Scholar; Arthurs, Harry, ‘Madly Off in One Direction: McGill's New Integrated, Polyjural, Transsystemic Law Programme’ (2005) 50 McGill Law Journal 707Google Scholar; Macdonald, Roderick A and MacLean, Jason, ‘No Toilets in Park’ (2005) 50 McGill Law Journal 721Google Scholar; Strauss, Peter L, ‘Transsystemia – Are We Approaching a New Legal Langdellian Moment? – Is McGill Leading the Way?’ (2006) 24 Penn State International Law Review 763Google Scholar; Jukier, Rosalie, ‘Transnationalizing the Legal Curriculum: How to Teach What We Live’ (2006) 56 Journal of Legal Education 172Google Scholar; Rosalie Jukier, ‘How to Introduce Similarities and Differences and Discuss Common Problems in the Classroom’ (International Association of Law Schools Conference, Suzhou, 17–19 October 2007); Dedek, Helge and de Mestral, Armand, ‘Born to be Wild: The “Trans-Systemic” Programme at McGill and the De-Nationalization of Legal Education’ (2009) 10 German Law Journal 889CrossRefGoogle Scholar; Arthurs, Harry W, ‘Law and Learning in an Era of Globalization’ (2009) 10 German Law Journal 629CrossRefGoogle Scholar; V Forray, ‘Enseigner le droit complexe, redéfinir le droit en compétence, à propos d'une analyse américaine du programme transsystémique de l'Université McGill [Teaching Complex Law, Redefining the Law as Expertise, about a US Analysis of the Transsystemic Programme at McGill University]’ [2010] Jurisprudence – Revue Critique [Case Law – Critical Review] 267; Van Praagh, Shauna, ‘Palsgraf as ‘Transsystemic' Tort Law’ (2011) 6(2) Journal of Comparative Law 243Google Scholar; Ancel, Pascal, ‘Dénationaliser l'enseignement du droit civil? Réflexions autour d'une expérience québécoise [Denationalizing the Teaching of Civil Law? Reflections on a Quebec Experience]’ (2011) 4 Revue Trimestrielle de Droit Civil [Civil Law Quarterly Review] 701Google Scholar.

48. New York University, ‘Global Faculty’ (New York University) <www.law.nyu.edu/global/globalfaculty> accessed 21 May 2019.

49. In Singapore, SAP schools are schools that train an elite group of students to be completely fluent in both Chinese and English by teaching some core subjects (mathematics, biology, etc) in English, and some in Chinese. In normal schools, all core subjects, except the mother tongue, are taught in English. For more on SAP schools, see Cheryl Sim, ‘Special Assistance Plan Schools’, Singapore Infopedia (21 July 2016) <http://eresources.nlb.gov.sg/infopedia/articles/SIP_2016-07-21_154021.html> accessed 21 May 2019.

50. Capable of practising law in two languages.

51. Capable of practising law in only one language. This programme would not help much in making Singaporeans juridically bilingual unless they go on exchange in a law school that teaches in Chinese or Indonesian, for example.