Hostname: page-component-77c89778f8-sh8wx Total loading time: 0 Render date: 2024-07-24T22:14:08.178Z Has data issue: false hasContentIssue false

LEGAL TRANSPLANT AND UNDUE INFLUENCE: LOST IN TRANSLATION OR A WORKING MISUNDERSTANDING?

Published online by Cambridge University Press:  30 January 2013

Mindy Chen-Wishart*
Affiliation:
Merton College, Oxford University, National University of Singapore (fractional), mindy.chen-wishart@merton.ox.ac.uk.

Abstract

Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer owes less to grand theories than to a careful examination of the nature of the transplanted law and the relationship between the formal and informal legal orders of the originating and the recipient society raised by the particular transplant.

Type
Articles
Copyright
Copyright © British Institute of International and Comparative Law 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See generally, Watson, A, Legal Transplants: An Approach to Comparative Law (University of Georgia Press 1993)Google Scholar; Foster, N, ‘Transmigration and Transferability of Commercial Law in a Globalized World’ in Harding, AJ and Örücü, E (eds), Comparative Law in the 21st Century (Kluwer Law International 2002) 55Google Scholar; Graziadei, M, ‘Comparative Law as the Study of Transplants and Receptions’ in Reimann, M and Zimmerman, R., The Oxford Handbook of Comparative Law (OUP 2007)Google Scholar.

2 eg the Principles of European Contract Law (PECL); the Draft Common Frame of Reference (DCFR); the Common European Sales Law (CESL); the Principles of International Commercial Contracts (PICC); and the United Nations Convention on Contracts for the International Sale of Goods (CISG).

3 Legrand, P, ‘The Impossibility of “Legal Transplants”’ (1997) 4 Maastricht Journal of European Comparative Law 111CrossRefGoogle Scholar; see also Friedman, L, A History of American Law (2nd edn, Simon and Schuster 1985) 595Google Scholar; and numerous quotes in Watson, A, Society and Legal Change (Scottish Academic Press 1977) 34Google Scholar.

4 See the distinction between ‘strong Watson’ and ‘weak Watson’ in Ewald, W, ‘Comparative Jurisprudence (II): the Logic of Legal Transplants’ (1995) 43 AJCL 489CrossRefGoogle Scholar.

5 Some 20 books and 100 articles detailed in Ewald, ibid.

6 See eg Watson, A, ‘Comparative Law and Legal Change’ (1978) 37 CLJ 313CrossRefGoogle Scholar.

7 ibid 321.

8 Teubner, G, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergencies’ (1998) 61 MLR 15CrossRefGoogle Scholar.

9 A Watson, ‘Ius Communis Lecture on European Private Law 2’ (The Contribution of Mixed Legal Systems to European Private Law, Maastricht University, 18 May 2000).

10 Harding, A and Örücü, E, Comparative Law in the 21st Century (Kluwer Law International 2002)Google Scholar ch 4, 55.

11 An example of an excellent case study is Teubner (n 8).

12 ibid 12.

13 Örücü, E, ‘Law as Transposition’ (2002) 52 ICLQ 206–7Google Scholar. See also Langer, M, ‘From Legal Transplants to Legal Translations’ (2004) 45 HJIL 1Google Scholar, discussing post-transplant evolution in the context of plea bargaining in criminal trials.

14 See generally, Phang, ABL, The Development of Singapore Law (Butterworths 1990)Google Scholar.

15 (Cap 7A, 1994 Rev Ed).

16 One rare exception in the law of contract is the Singapore Court of Appeal decision in Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2; [2005] 1 SLR 502 which rejected the position in the English Court of Appeal decision on equity's jurisdiction in the case of unilateral mistake in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407, [2003] QB 679, [2002] 4 All ER 689. Another is the recent rejection of Lord Hoffmann's approach to remoteness of loss in The Achilleas [2008] UKHL 48; the Singapore Court of Appeal in MFM Restaurants Pte Ltd v. Fish & Co Restaurants Pte Ltd [2010] SGCA 36; [2011] 1 SLR 150, preferring the traditional approach set out in Hadley v Baxendale [1854] EWHC Exch J70.

17 Phang (n 14) 6, 63, 84, 151.

18 Royal Bank of Scotland v Etridge [2001] UKHL 44, [2002] AC 773.

19 ibid [2].

20 ibid [6]–[7]; see also R v Attorney-General for England and Wales [2003] UKPC 22 [21].

21 Allcard v Skinner (1887) LR 36 Ch D 145, 171; See also Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 953 (BCCI v Aboody); Barclays Bank v O'Brien [1994] 1 AC 180 HL, 189–90.

22 Etridge (n 18) [13], [16], [17].

23 Allcard v Skinner, (n 21), (at 171) sets out two categories of undue influence, which, despite the refinements by Etridge, remain substantially intact. These categories are affirmed in BCCI v Aboody, (n 21), at 953 and Barclays Bank v O'Brien, (n 21) at 189–90. In class 1 cases the claimant can prove that the defendant's positive application of pressure induced his consent to the contract.

24 In class 2 cases undue influence is presumed from the claimant's proof that: (a) she was in a ‘relationship of trust and confidence’ with the defendant (Class 2A covers specified relationships where the influence is automatically presumed, class 2B describes relationships outside Class 2A where the existence of influence must be proved), and (b) the resulting transaction is manifestly disadvantageous to the claimant. It is then up to the defendant to rebut the presumption by proof that the claimant nevertheless entered the transaction freely (usually by evidence of the presence of independent advice).

25 eg Rajabali Jumabhoy & Ors v Ameerali R Jumabhoy & Ors [1997] 3 SLR 802; Overseas-Chinese Banking Corp Ltd v Chng Sock Lee & Anor [2001] 4 SLR 370; Bank of India v Sujanani Thakur Rochiram & Ors [1999] SGHC 185; Standard Chartered Bank v Uniden Systems (S) Pte Ltd [2003] 2 SLR 385; Malayan Banking Bhd v Hwang Rose and others [1997] SGCA 10; ING Bank NV v Inselatu Co Pte Ltd & Ors [2000] SGHC 81; Susilawati v American Express Bank Ltd [2008] 1 SLR 237, [2007] SGHC 179; Oversea-Chinese Banking Corp Ltd v Tan Teck Khong and Another (Committee of the Estate of Pang Jong Wan, Mentally Disordered) and Others [2005] 2 SLR 694; [2005] SGHC 61; Bank of East Asia v Mody Sonal M [2004] 4 SLR 113.

26 Barclays Bank v O'Brien (n 21).

27 ING Bank NV v Inselatu Co Pte Ltd (n 25), [21].

28 Allcard (n 21).

29 Reported in Etridge (n 18), [4], [90], [123], [130], [282]–[293].

30 ibid [130], [284], [291].

31 ibid [284].

32 ibid [291].

33 Reported in Etridge (n 18) [4], [90], [97], [123], [131], [310]–[351].

34 Etridge [312].

35 BCCI v Aboody (n 21); the court declined relief because it found that the wife would have agreed even if the husband had insured that she fully understood the risks. The flaw in this reasoning is that it obstructs the finding of undue influence in the cases where it is most needed. See (n 578) below.

36 The bank insisted on offering the wife independent advice in the absence of her husband. While this was happening, the husband burst into the room in a high state of excitement and said, ‘Why the hell don't you get on with what you are paid to do and witness her signature?’ There followed a scene which reduced the wife to tears. The advisor certified that the wife understood the transaction, but added: ‘Husband is a bully. Under pressure and she wants peace.’ A further attendance note read: ‘Both our proposals were rejected out of hand by your husband … Your husband very rude and overbearing but you seemed to be quite content to submit and expressed your confidence in the business.’

37 Oversea-Chinese Banking Corp v Chng Sock Lee & Anor (n 25).

38 ibid [14].

39 ibid.

40 ibid [16].

41 ibid [15].

42 ibid [15], [17].

43 Bank of East Asia v Mody Sonal M (n 25); see also Gan Cheng Chan v Gan Meng Hui.

44 Bank of East Asia v Mody Sonal M [18].

45 ibid [12].

46 ibid [19].

47 ibid [17]; see also Orix Capital Ltd v Personal Representative(s) of the Estate of Lim Chor Pee (deceased) [2009] SGHC 201, [2009] 4 SLR 1062, [81]–[85].

48 ibid [12].

49 Standard Chartered Bank v Uniden Systems (S) Pte Ltd (n 25).

50 ibid [72].

51 ibid [68].

52 ibid [70]–[71], [73].

53 ibid [74].

54 ibid [69].

55 Despite frequent use of words like ‘impropriety’, ‘abuse’, ‘betrayal’, ‘wrong-doing’, ‘reprehensible’, ‘fault’ Arden LJ has confirmed in Jennings v Cairns, In the Estate of Davidge [2003] EWCA Civ 1935 (at [40]) that ‘the fact that the conduct of the person exercising influence is unimpeachable is not by itself an answer to a claim in undue influence’.

56 Etridge (n 18) [20]; however, the court also said, obiter, at [159], that a wife's support is the ‘natural and admirable consequence of the relationship of a mutually loyal married couple’, it is readily explicable in terms of her normal trust and confidence in her husband. In Allcard v Skinner, (n 21), the nun knew what was expected of her before she joined the sisterhood (her mother and barrister brother had opposed her action). The judges recognized that everything she did came out of her own willing submission and enthusiastic devotion to the life and work of the sisterhood. Nevertheless, the doctrine protects her.

57 Credit Lyonnais Bank Nederland v Burch [1997] 1 All ER 144 CA.

58 Bank of Montreal v Stuart [1911] AC 120, 137.

59 OBrien (n 21).

60 Etridge (n 18) [48]–[49].

61 Harding, A, ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”’ in Nelken, D and Feest, J (eds), Adapting Legal Cultures (Hart 2001) 199Google Scholar.

62 Harding, A, ‘Global Doctrine and Local Knowledge Law in South East Asia’ (2002) 51 ICLQ 51–2CrossRefGoogle Scholar; Watson, ‘Comparative Law and Legal Change’ (n 6) 327.

63 Berkowitz, D, Pistor, K and Richard, JF, ‘The Transplant Effect’ (2003) 51 AJCL 164CrossRefGoogle Scholar; see also Örücü (n 13) 214. According to The Singapore Academy of Law overview of the Singapore legal system (at section 1.3.1): ‘Singapore has inherited the English common law tradition and thus enjoys the attendant benefits of stability, certainty and internationalisation inherent in the British system (particularly in the commercial sphere).’ See Singapore Academy of Law, ‘Overview’ in The Laws of Singapore (2012) <http://www.singaporelaw.sg/content/LegalSyst1.html#Section3> accessed 23 March 2012.

64 Watson, Society and Legal Change (n 3) 98ff.

65 Glanert, SSpeaking Language to Law: The Case of Europe’ (2008) 28 Legal Studies 161CrossRefGoogle Scholar emphasizes the importance of common language, but also of local character and legal experience, for any uniformization (harmonization) of laws.

66 Phang (n 14) 66–71, 118–60.

67 See Glenn, P, ‘A Concept of Legal Tradition’ (2008) 34 Queen's Law Journal 427Google Scholar.

68 Teubner (n 8) 16.

69 Watson, Society and Legal Change (n 3) 8; see also Watson, ‘Comparative Law and Legal Change’ (n 6) 315; Ewald (n 4) 499–500.

70 See Khan-Freund, O, ‘On Uses and Misuses of Comparative Law’ in Khan-Freund, (ed), Selected Writings (Stevens 1978)Google Scholar 298ff. He distinguishes between legal institutions that are effectively insulated from culture and society (‘mechanical’) and those that are culturally deeply embedded (‘organic’).

71 Teubner (n 8) 18.

72 Coleman, JS, Foundations of Social Theory (Harvard University Press 1990) 243Google Scholar; Sunstein, C, ‘Social Norms and Social Roles’ (1996) 96 ColumbLRev 903Google Scholar.

73 Berkowitz, Pistor and Richard, ‘The Transplant Effect’ (n 63) 176.

74 Sunstein, C, ‘On the Expressive Function of Law’ (1996) 144 UPaLRev 2050Google Scholar.

75 Berkowitz, Pistor and Richard, ‘The Transplant Effect’ (n 63) 177; Seidman, A and RB, ‘Drafting Legislation for Development: Lessons from a Chinese Project’ (1996) 44 AJCL 1CrossRefGoogle Scholar.

76 Harding (n 61) 213; Phang (n 14) 93.

77 See Singapore's Women's Charter 1961, Ordinance No. 18 of 1961; now Cap. 353, 2009 Rev. Ed.

78 Harding (n 62) 49.

79 Englehart, N, ‘Rights and Culture in the Asian Values Argument: the Rise and Fall of Confucian Ethics in Singapore’ (2000) 22 HRQ 548CrossRefGoogle Scholar.

80 In 2009, the government census reports that 74.2 per cent of residents were of Chinese, 13.4 per cent of Malay, and 9.2 per cent of Indian descent, ‘Population Trends 2009’; see Singapore Department of Statistics, ‘Census of population 2010: Statistical Release 1 on Demographic Characteristics, Education, Language and Religion’ (Press Release, 12 January 2011).

81 Buddhists comprise 33 per cent, 17 per cent have no religion, 13 per cent Christians, 15 per cent are Muslims, 11 per cent are Taoists, 5.1 per cent are Hindus and 0.9 per cent are other beliefs; ibid.

82 First language speakers are 50 per cent Chinese, 32.3 per cent English, 12.2 per cent Malay and 3.3 per cent Tamil. English is the first language of the nation and is the language of business, government and medium of instruction in schools. The Singapore constitution and all laws are written in English. Of Singaporeans 80 per cent are literate in English as either their first or second language; ibid.

83 Wei-Ming Tu, ‘Confucius and Confucianism’ in Slote, WH and DeVos, GA (eds), Confucianism and the Family (State University of New York Press 1998)Google Scholar

84 Its focus includes virtuous character traits necessary for living a good life and particular modes of ethical reasoning.

85 Wei-Ming Tu (n 83) 3.

86 WH Slote, ‘Psychocultural Dynamics within the Confucian Family’ in Slote and DeVos (n 83) 38.

87 EC Kuo, ‘Confucianism and the Chinese Family in Singapore: Continuities and Changes’ in Slote and DeVos (n 83) 244–6.

88 Hence the widely accepted idea of the social contract as the basis of political authority, famously found in Hobbes' Leviathan (1651), Locke's Second Treatise on Government (1689) and Rousseau's Du Contrat Social (1762); and more recently, Rawls' idea of what can be agreed from the original position behind the veil of ignorance in Theory of Justice (Belknap Press 1971).

89 Where you are in the hierarchy is expressed in an elaborate terminology of titles and honorifics that ensures everyone knows exactly where they stand in relation to everyone else.

90 Traditionally Chinese women are expected to obey their fathers before marriage, their husbands after marriage, and their sons after their husbands die.

91 Kuo, ‘Confucianism and the Chinese Family in Singapore: Continuities and Changes’ (n 87) 231.

92 Hamilton, GG, ‘Patriarchy, Patrimonialism, and Filial Piety: A Comparison of China and Western Europe’ (1990) 41 British Journal of Sociology 77CrossRefGoogle Scholar.

93 It is the fifth of the Ten Commandments in Christianity, Exodus 20:1–21, and Deuteronomy 5:1–23.

94 The Analects 2.6 says to give parents no cause for anxiety; 2.7, emphasizes the need for the material support of parents to be carried out in a respectful manner; 2.8 emphasizes that it is the expression on one's face that is filial and not just taking on the burden of work or letting elders partake of the wine and food before others.

95 If the child believes that parents are wrong and their wishes run contrary to what is right or good, Analects 4.18 says that one should remonstrate with them gently. Most translations have Confucius concluding that if parents are not persuaded, one should not oppose them (eg Dim Cheuk Lau (Penguin 1979); Edward Slingerland (Hackett 2003); Arthur Waley (MacMillan 1938)).

96 Analects 13.18, in which Confucius says that uprightness is found in sons and fathers covering up for each other. In this case, at least, loyalty to parents or to children takes precedence over loyalty to ruler or to public justice.

97 DK Jordan, ‘Filial Piety in Taiwanese Popular Thought’ in Slote and DeVos (n 83) 268.

98 Slote (n 86) 37.

99 Hamilton (n 92) 85.

100 Children could be prosecuted for being unfilial and, in the last dynasties, fathers would go unpunished if they killed their sons for being unfilial, even if they did so inhumanely. The same trend in legal severity is true for the husband's power over his wife, ibid 86–7.

101 ibid 92.

102 Analects 1.15 likens the project of cultivating one's character to crafting something fine from raw material: cutting bone, polishing or grinding a piece of jade. In this project, ritual plays a central part. This includes the ceremonies of ancestor worship, the burial of parents, and the rules governing respectful and appropriate behaviour between parents and children. All to be done with the right attitude, in the right manner and without internal conflict until it becomes second nature.

103 Ihara, CK, ‘Are Individual Rights Necessary? A Confucian Perspective’ in Shun, Kwong-loi and Wong, DB (eds), Confucian Ethics: A Comparative Study of Self, Autonomy, and Community (Cambridge University Press 2004) 11, 30Google Scholar.

104 Bellah, R, ‘Father and Son of Christianity and Confucianism’ in Bellah, R (ed), Beyond Belief (Harper and Row 1970) 76Google Scholar.

105 Hamilton (n 92) 96.

106 Bellah (n 104) 84.

107 Hamilton (n 92) 77, 94–6.

108 Bellah (n 104) 94.

109 From Cheng Hao (AD1032–1085) quoted in Hsu, Dau-lin, ‘The Myth of the “Five Human Relations” of Confucius’ (1970–71) 29 Monumenta Serica 27, 33Google Scholar.

110 Analects 1.2.

111 The Chinese have very elaborate kinship terminology system for properly addressing the person with whom they interact. All relatives have a specific title: Father's eldest brother, second maternal aunt, third younger paternal uncle's wife and so on.

112 Wei-Ming Tu (n 83) 3, 13.

113 Slote (n 86) 43–4. Hamilton makes the same point by comparing the straw in the haystack with a stone thrown in a lake causing ripples; see Hamilton (n 92) 98–9 citing Fei Xiaotong in a little-known and untranslated book on rural China: Xiangtu Zhongguo (Joint Publishing Company 1986).

114 Slote (n 86) 44.

115 David Wong, ‘Chinese Ethics’, The Stanford Encyclopedia of Philosophy (Fall edn, 2008) <http://plato.stanford.edu/archives/fall2008/entries/ethics-chinese/> accessed 11 February 2012.

116 Rosemont, H, ‘Kierkegaard and Confucius: On Finding the Way’ (1986) 36 Philosophy East and West 207CrossRefGoogle Scholar; H Rosemont, ‘Whose Democracy? Which Rights? A Confucian Critique of Modern Western Liberalism’ in Kwong-loi Shun and Wong (n 103) 49.

117 MacIntyre, A, After Virtue: A Study in Moral Theory (2nd edn, University of Notre Dame 1984)Google Scholar.

118 Walzer, M, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books 1983).Google Scholar

119 Tan, Wee-Liang and Fock, Siew Tong, ‘Coping with Growth Transitions: The Case of Chinese Family Businesses in Singapore’ (2001) 14 Family Business Review 124CrossRefGoogle Scholar. The ethnic Chinese share of market capitalization amounts to 81 per cent in Singapore: Tsui-Auch, Lai Si, ‘The Professionally Managed Family-Ruled Enterprise: Ethnic Chinese Business in Singapore’ (2004) 41 Journal of Management Studies 693CrossRefGoogle Scholar.

120 Tsui-Auch, ibid, 696.

121 See eg Redding, G, The Spirit of Chinese Capitalsim (de Gruyter 1990)CrossRefGoogle Scholar; Fukuyama, F, ‘Social Capital and Global Economy’ (1995) 74 Foreign Affairs 89CrossRefGoogle Scholar; Weidenbaum, M, ‘The Chinese Family Business Enterprise’ (1996) 38 California Management Review 141CrossRefGoogle Scholar; Seow Wah, Heh, ‘Chinese Cultural Values and Their Implication to Chinese Management’ (2001) 23 Singapore Management Review 75Google Scholar.

122 For example, a shift towards the professionalization of operational management in large firms while retaining control over strategic decision-making within the family patriarchal structure; the demographic trend towards smaller-nuclear families means a decline of large extended business families and an increasing willingness to absorb female members and outsiders into the upper echelon; Tsui-Auch (n 119) 718–19.

123 eg ibid 695–6; Bond, MH and Hwang, KK, ‘The Social Psychology of the Chinese people’ in Redding, SG, Wong, GYY and Bond, MH (eds), The Psychology of The Chinese People (Oxford University Press 1986)Google Scholar; Orrú, M, Biggart, NW and Hamilton, GG (eds), The Economic Organization of East Asian Capitalism (Sage 1997)Google Scholar; Yan, Jun and Sorenson, RL, ‘The Influence of Confucian Ideology on Conflict in Chinese Family Business’ (2004) 4 International Journal of Cross-Cultural Management 5Google Scholar.

124 Snell, RS, ‘Obedience to Authority and Ethical Dilemmas in Hong Kong Companies’ (1999) 9 Business Ethics Quarterly 523CrossRefGoogle Scholar.

125 Interpersonal relationships (guanxi) are regarded as a long-term investment for future help and support when conducting business or other affairs. Such personal loyalties and commitments take precedence over all others except family; see Scarborough, J, ‘Comparing Chinese and Western Cultural Roots: Why East is East and …’ (1998) 41 Business Horizons 15CrossRefGoogle Scholar.

126 Yan and Sorenson (n 123) 5–6.

127 ibid 11.

128 Tan and Fock (n 119) 125.

129 Snell (n 124) 509, 521.

130 Shenka, O and Ronen, S, ‘The Cultural Context of Negotiations: the Implications of Chinese Interpersonal Norms’ (1987) 23 Journal of Applied Behavioural Science 266Google Scholar.

131 Tsui-Auch (n 119) 717.

132 Credit Lyonnais Bank Nederland v Burch (n 57)

133 She had sometimes baby-sat and visited his family in London and Italy.

134 Credit Lyonnais Bank Nederland v Burch (n 57) 152.

135 ibid 154–55.

136 Hong Leong Finance Ltd v Tay Keow Neo and Another [1992] 1 SLR 205.

137 ibid 218.

138 See Kuo, Eddie, ‘Confucianism as Political Discourse in Singapore: The Case of an Incomplete Revitalization Movement’ in Wei-ming, Tu (ed), Confucian Tradition in East Asian Modernity (Harvard University Press 1996) 294Google Scholar.

139 Englehart, NARights and Culture in the Asian Values Argument: the Rise and Fall of Confucian Ethics in Singapore’ (2000) 22 HR 555Google Scholar.

140 Kuo, ‘Confucianism as Political Discourse in Singapore: The Case of an Incomplete Revitalization Movement’ (n 138) 305–6, Phang (n 14) 146–7.

141 ibid 295.

142 See eg, Kim Dae Jung, ‘Is Culture Destiny?’ 73 Foreign Affairs 189; see also Englehart (n 139).

143 The White Paper Shared Values (Singapore National Printers, Cmd 1 of 1991) was presented to Parliament on 5 January 1991. A nationwide debate followed as well as in Parliament; the House adopted the five statements as the nation's Shared Values on 15 January 1991.

144 Prime Minister Lee Hsien Lung, '2012 Chinese New Year Message’ (15 Jan 2012) <http://www.pmo.gov.sg/content/pmosite/mediacentre/speechesninterviews/primeminister/2012/January/prime_minister_2012_chinesenewyearmessage.html> accessed on 23 March 2012.

145 Mr Chan Chun Sing, ‘Foreword’ in National Family Council State of the Family Report (2011) <http://www.nfc.org.sg/pdf/Requestor_SOFR%202011%20Cicada%20v8%20Final.pdf> accessed on 23 March 2012.

146 White Paper on Singapore's Shared Values (n 143) 8.

147 Straits Times, 24 April 1990, 3.

148 Thio, L-A, ‘Lex Rex or Rex Lex? Competing Conceptions of the Rule of Law in Singapore’, (2002) 20 UCLA Pacific Basin Law Journal 1, 22, 2426CrossRefGoogle Scholar; Thio, L-A, ‘Rule of Law within a Non-Liberal “Communitarian” Democracy: The Singapore Experience’ in Peerenboom, R (ed), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (Routledge 2004) 192–3Google Scholar.

149 Kuan Yew, Lee, From Third World to First, The Singapore Story: 1965–2000 (2000), 49Google Scholar; see also Tan, E K-B, ‘“We” v. “I”: Communitarian Legalism in Singapore’, (2002) 4 Australian Journal of Asian Law 1118Google Scholar; Li-Ann Thio ‘Lex Rex or Rex Lex’, ibid, 27.

150 Kuan Yew, Lee, First Prime Minister of the Republic of Singapore, ‘Speech at the Opening of the Singapore Academy of Law’ (31 Aug 1990), (1990) 2 Singapore Academy of Law Journal 155Google Scholar.

151 See generally Sim, C, ‘The Singapore Chill: Political Defamation and the Normalization of Statist Rule of Law’ (2011) 20 Pacific Rim Law & Policy Journal Association 319Google Scholar.

152 Lee Kuan Yew v Vinocur [1995] SGHC 201, [1995] 3 SLR 491, [55].

153 Lee Kuan Yew v Seow Khee Leng [1988] SGHC 78, [1988] 2 SLR 252, [1989] 1 Malayan LJ 172, [25].

154 See Kuo, ‘Confucianism and the Chinese Family in Singapore : Continuities and Changes’ (n 87).

155 Kuo, ‘Confucianism as Political Discourse in Singapore: The Case of an Incomplete Revitalization Movement’ (n 140) 301.

156 See the discussion in Birks, P and Chin, NN, ‘On the Nature of Undue Influence’ in Beatson, J and Friedmann, D (eds), Good Faith and Fault in Contract Law (Clarendon Press 1995) 57Google Scholar.

157 ibid; Bigwood, R, ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation”16 OJLS 503CrossRefGoogle Scholar; Bigwood, R, ‘Contracts by Unfair Advantage: From Exploitation to Transactional Neglect’ (2005) 23 OJLS 65CrossRefGoogle Scholar.

158 Chen-Wishart, M, ‘Undue Influence: Beyond Impaired Consent and Wrong-Doing, Towards a Relational Analysis’ in Burrows, A and Rodger, A (eds), Mapping the Law: Essays in Memory of Peter Birks (Oxford University Press 2006) 201CrossRefGoogle Scholar; Chen-Wishart, M, ‘Undue Influence: Vindicating Relationships of Influence’ (2006) 59 Current Legal Problems 231CrossRefGoogle Scholar.

159 Allcard (n 21) 190.

160 Etridge (n 18) [9].

161 Teubner (n 8) 18.

162 Harding (n 61) 199; ‘South East Asia … [is] an ideal laboratory. The region has an abundance of legal traditions, practically all of them having been “received” in one sense or another, and encompassing all the world's major legal world-views and systems. If the crossroads of legal traditions are nodal points where comparatists are to be found, then one ought to be tripping over them in South East Asia.’

163 Harding (n 62) 12.

164 ibid 40.

165 Compare, for example, Invercargill City Council v Hamlin (1994) 3 NZLR 513, [1996] AC 264 where the Privy Council expressly allowed for the possibility that a House of Lords decision on the law of negligence may be adjusted to suit the general local pattern of socio-economic behaviour in New Zealand.

166 Geertz, C, ‘Local Knowledge: Fact and Law in Comparative Perspective’ (1983) 175 Local Knowledge: Further Essays in Interpretive Anthropology 215Google Scholar.

167 In Pek Nam Kee v Peh Lam Kong [1994] SGHC 163 D induced his step-siblings to sign a deed of family arrangement on their parents' death. D duped them out of their fair share by, inter alia, actual and presumed undue influence—some, and implied threats that division of the estate would be held up indefinitely and they would not receive the money they badly needed if they did not sign. In Che Som bte Yip and others v aha Pte Ltd and others [1989] SGHC 62 a man obtained a guarantee from his mentally unsound younger brother.

168 Tan Teck Khong and another v Tan Pian Meng [2002] SGHC 152 and Oversea-Chinese Banking Corp Ltd v Tan Teck Khong and another (committee of the estate of Pang Jong Wan, mentally disordered) and others [2005] SGHC 61, [2005] 2 SLR(R) 694. In contrast, no undue influence was found against the benefiting child in Hooi Cheng Kwong Michael and another v Hooi Cheng Cheong Paul [1980] SGHC 35 where the inequality was explicable; the mother's will merely corrected previous inequality (when the defendant obtained considerably less under the father's will). Nor in Susilawati v American Express Bank Ltd [2007] SGHC 179, [2008] 1 SLR 237, where the wealthy and independent claimant supported her son-in-law's borrowing in order to support her daughter; she only complained when her daughter's marriage foundered.

169 Mookka Pillai Rajagopal and another v Khushvinder Singh Chopra [1996] SGCA 58.

170 In Etridge (n 18) [34], Lord Nicholls points out that 95 per cent of all businesses in the UK are small businesses responsible for about one-third of all employment and their most important source of finance is bank loans raised by second mortgages on the domestic home.

171 Bank of India v Sujanani Thakur Rochiram & Ors [1999] SGHC 185.

172 ibid [13].

173 ibid [34].

174 See eg Bayly, S, Caste, Society and Politics in India from the Eighteenth Century to the Modern Age (Cambridge University Press 1999)CrossRefGoogle Scholar; Chowdhury, A, ‘Families in Bangladesh’ (1995) 26 Journal of Comparative Family Studies 27CrossRefGoogle Scholar; Dasgupta, S, ‘Gender Roles and Cultural Continuity in the Asian Indian Immigrant Community in the US’ (1998) 38 Sex Roles: A Journal of Research 953CrossRefGoogle Scholar; Gupta, GR, ‘The Family in India: The Joint Family’ in The Family in Asia Man Singh, Das and Bardis, (eds), (Allen and Unwin 1979) 72Google Scholar; Jithoo, S, ‘Indians in South Africa: Traditions vs Westernization’ (1991) 22 Journal of Comparative Family Studies 343CrossRefGoogle Scholar; Mullatti, L, ‘Families in India: Beliefs and Realities’ (1995) 26 Journal of Comparative Family Studies 11CrossRefGoogle Scholar; Uberoi, P (ed), Family, Kinship and Marriage in India (Oxford University Press 1993)Google Scholar; Sinha, R, Dynamics of Change in the Modern Hindu Family (South Asia Books 1993)Google Scholar; Dugsin, R, ‘Conflict and Healing in Family Experience of Second-Generation Emigrants from India Living in North America’ (2001) 40 Family Process 233CrossRefGoogle ScholarPubMed; Sahay, S and Walsham, GSocial Structure and Managerial Agency in India’ (1997) 18 Organization Studies 415CrossRefGoogle Scholar; Derne, S, Culture in Action: Family Life, Emotion, and Male Dominance in Banaras, India (State University of New York Press 1995)Google Scholar; Sinha, D and Tripathi, RC, ‘Individualism in a Collectivist Culture: A Case of Coexistence of Opposites’ in Kim, HC et al. (eds), Individualism and Collectivism: Theory, Method, and Applications. Cross-Cultural Research and Methodology Series, Book 18 (Sage 1994) 123Google Scholar. Analysis along the lines of Part D above is beyond the scope of this article.