Ernest Lim, ‘Concentrated Ownership, State-Owned Enterprises and Corporate Governance’

Concentrated ownership companies are increasing worldwide, a significant percentage of which are state-owned enterprises (SOEs), whose controller is the government. Government owners are the world’s second largest type of shareholder. Despite extensive literature on SOEs, there is little analysis of how corporate governance can be undermined by the state as the controller of SOEs or how it can be deployed by the government to serve its own ends. This article critically examines how the conflict of interest between the government as the controller of SOEs on the one hand and the minority shareholders and stakeholders on the other, as well as the conflict of interest between the government as the controller on the one hand and the government as the regulator on the other, can affect three corporate governance regimes, namely, sustainability (environmental, social and governance) reporting; directors’ duty to act in the best interests of the company; and stewardship code.

Ernest W K Lim, Concentrated Ownership, State-Owned Enterprises and Corporate Governance, Oxford Journal of Legal Studies, Published: 17 January 2021.

‘Treating Cognitive Harms in Contract Seriously’

Jeffrey L Harrison, Duress and Undue Influence in Contract Law as Cognitive Trespass, 98 Nebraska Law Review 970 (2020). In this article, Jeffrey Harrison addresses the very real problem of contract law’s capacity to control wrongful conduct that deprives individuals of a meaningful ability to withhold consent. Specifically, for certain types of duress and undue influence, the remedies available under contract incentivize wrongful conduct against an apparently weaker party. Professor Harrison provides an insightful analysis of the situations in which contract promotes such absurd results and makes a convincing argument in favor of treating certain types of duress and undue influence as an independent tort in order to access the deterrence value of punitive damages … (more)

[Daniel Barnhizer, JOTWELL, 22 January]

‘Parler’s Motion for a Temporary Restraining Order Against Amazon Denied’

“Nancy Kim posted last week about Parler’s lawsuit against Amazon Web Services (AWS) for, among other things, breach of contract. Nancy’s prediction was that Parler’s chance of winning on its breach of contract claim didn’t look good. Yesterday, US District Court Judge Barbara Jacobs Rothstein agreed, denying Parler’s motion for a temporary restraining order. On the breach of contract claim, Judge Rothstein pretty much stuck to the Nancy Kim playbook …” (more)

[Jeremy Telman, ContractsProf Blog, 22 January]

‘Theodor Sternberg and the Closet of Conceptualism’

“Sometime in the mid-1930s, German jurist Theodor Sternberg (1878-1950) concluded that law and love were incompatible. In one of his ‘erotosophical’ fragments, he claimed that affective bonds thrived under anarchy. Love, for Sternberg had to be free from egoism and compulsion, eschew both duty and obligation. ‘Coitus’, especially, was divine in origin – God’s love for the world incarnate – and just like God’s love was limitless, sexuality knew no law. Sternberg wrote his fragment in Japan, where he lived as an independent scholar for almost forty years …” (more)

[Katharina Isabel Schmidt, History | Sexuality | Law, 19 January]

Victoria Barnes, ‘What Were Shareholder Rights In The Wake Of The American Revolution?’

This Article investigates the common law rights of shareholders in the wake of the American Revolution. It analyzes the rights and powers that shareholders relied on in litigation about corporate governance disputes, in England in the late eighteenth and early nineteenth centuries. The relevant rules were imported into the literature of Anglo-American commercial law and linked to the later development of fiduciary duties and the business judgment rule. This Article shows that, at this point in history, these doctrines did not exist, as such, in the fiber of Anglo-American corporate law. The analysis demonstrates that shareholders had strong powers which could be exercised through litigation. These powers included the ability to dissolve the company, remove management, and stop further use of the corporate name. This discussion of shareholder rights at the time of the foundation of the United States is of particular importance to those states that still have a strong equitable jurisdiction.

Victoria Barnes, What Were Shareholder Rights In The Wake Of The American Revolution? (2020) 19 FSU Business Review 131.

David Tan and Samuel Lim, ‘All The World’s A Stage, But What is A Dramatic Work?’

Modern conceptions of dramatic entertainment have expanded to include diverse and previously inconceivable forms. The elements of apparent spontaneity in popular television shows like MasterChef, The Amazing Race and The Voice appear to be at odds with the traditional requirements of a predetermined script – which is commonly understood to be necessary for copyright protection of a ‘dramatic work’. Other forms of performances such as improvisation theatre, animal acts, fireworks and synchronised drones only add to a cacophonous collection that do not fit into our current state of copyright law that demands categorical recognition of works. This article explores, through a comparative analysis of developments in a number of Commonwealth common law jurisdictions, what may and should qualify as a dramatic work in Singapore in the 21st century.

Tan, David and Lim, Samuel, All The World’s A Stage, But What is A Dramatic Work?, Singapore Journal of Legal Studies, Septemebr 2020, pp 702–725.

‘Book review: Copyright and Fundamental Rights in the Digital Age

Copyright and Fundamental Rights in the Digital Age: A Comparative Analysis in Search of a Common Constitutional Ground, edited by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini, explores the relationship between copyright and fundamental rights in light of the digital single market strategy. It argues that the battle between copyright and copyright and freedom of expression is far from settled. In the introduction, by Oreste Pollicino, Giovanni Maria Riccio and Marco Bassini, it is recognised that whilst the internet offers new channels and opportunities for circulation of copyright, it nevertheless brings new threats for rightsholders. Furthermore, they state that it is no coincidence that the provisions on internet service provider liability are regarded as free speech rules …” (more)

[Hayleigh Bosher, The IPKat, 21 January]

Nicole Friedlander, ‘Escape From Plurality: Why the Best Interest of the Child is at Risk’

This note provides a comparative analysis between the United States’ and Canada’s laws regarding the non-traditional marital practice of polygamy. The note concludes by suggesting that the United States should adopt a law more similar to that of Canada, which provides greater protections to those leaving a polygamous relationship. In its current form, the United States’ stance on polygamy, that departing spouses are not entitled to the traditional rights of monogamous divorcing parties, leaves the best interest of the child at risk.

Friedlander, Nicole, Escape From Plurality: Why the Best Interest of the Child is at Risk (December 2020). 4 Cardozo International and Comparative Law Review, 321 (2020), Cardozo Legal Studies Research Paper forthcoming.

Benoliel and Becher, ‘Termination Without Explanation Contracts’

Firms routinely terminate their contractual relationship with consumers. During 2019-2020, for example, Facebook terminated 5.4 billion accounts that were supposedly fake; WhatsApp announced that it is terminating 2 million user accounts per month for apparently spreading fake news; and Discord, an online communication platform, terminated 5.2 million user accounts for allegedly publishing spam and exploitative content.

Terminating accounts that facilitate and promote fake profiles, fake news, spam, hatred, improper content or cheating makes sense. However, past incidents and consumer complaints indicate that firms often terminate their relationship with consumers without explanation, which is socially undesirable. First, if firms fail to explain to consumers the cause for termination, a hasty, unfounded, and erroneous termination is more likely to occur. Second, erroneous contract termination, fueled by lack of explanation, may generate significant costs to consumers. These may include the loss of sunk investments, emotional costs, and switching costs. Third, termination without explanation may be based on discriminatory, yet non-transparent factors. Such terminations may disproportionately target and harm vulnerable consumers, while eroding imperative societal values.

Given these risks and costs, this Article marks the first attempt to systematically and empirically study the phenomenon we dub ‘termination without explanation contracts’; ie, consumer agreements that allow firms to terminate their contract without disclosing the reason for termination. In doing so, the Article examines the contractual termination mechanisms of 500 sign-in-wrap contracts of the most popular websites in the United States. The results of our study show, inter alia, that the vast majority of these contracts are non-transparent termination without explanation contracts. We therefore propose to impose a duty to explain on firms. We also present a transparency index that captures key aggravating factors and can help tackle the issue from a holistic approach.

Benoliel, Uri and Becher, Shmuel I, Termination Without Explanation Contracts (December 2020).

Rennie W, ‘The Tainting Doctrine in Singapore Conflict of Laws’

In Singapore conflict of laws, the tainting doctrine applies where a contractual claim governed by Singapore law is not itself unenforceable for illegality or public policy, but is sufficiently connected to a transaction which is so unenforceable. However, the mechanism of this doctrine – as articulated in the English Court of Appeal decision of Euro-Diam Ltd v Bathurst Ltd – is today uncertain due to, inter alia, its use of domestic illegality principles which no longer apply. This paper suggests two areas of clarification. First, it explores whether the doctrine should be seen an application of the proper law of the contract or the law of the forum. Second, it introduces a possible approach as informed by the test in tainting by domestic illegality, which may be applied where the contract sought to be enforced is governed by Singapore law.

Rennie W, The Tainting Doctrine in Singapore Conflict of Laws, Singapore Journal of Legal Studies, September 2020, pp 726–747.