The larger issue seems to be connected with one’s reputation in this life. In “Abandoning Old Banks and Brooking New Streams: A Case for the Reformation and Statutory Codification of the English Law on A Bank’s Duty of Confidentiality”, Filbert Lam, University of Edinburgh discusses banking confidentiality under the principles laid down in the well-known decision of Tournier9 which held a banker has an implied duty of confidentiality arising from the banker-customer relationship. This duty is subject to four qualifications: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer. As Tournier is a common law authority, it is always subject to statutory modification for the purpose of combatting financial crime, such as money-laundering via banks. Filbert questions the coherence of Tournier in the light of recent English decisions, which he suggests has revealed important lacunae in the law, and that they support the case for the clarification of this duty in a statute. Singapore did away with Tournier in 1970 when it enacted the Banking Act to create a statutory framework for developing Singapore into a financial centre - s47 provided that “[c]ustomer information shall not … be disclosed … except as expressly provided in this Act”. However, Filbert has misunderstood the Court of Appeal’s decision in Susilawati v American Express Bank Ltd10 that s47 has set out an exclusive regime that prevents parties from entering into express agreements to regulate banking confidentiality on a contractual basis. In “Divergent Paths: The Doctrine on Equivalents in Singapore and the United Kingdom”, Joel Sherard Chow, King’s College London discusses the difference between Singapore law and UK law following Lee Tat Cheng v Maka GPS Technologies Pte Ltd11 where the Singapore Court of Appeal favoured a purposive approach and rejected the decision of the UK Supreme Court in Actavis UK Ltd v Eli Lilly12 which adopted the doctrine of equivalents. In evaluating the delicate balance between ensuring adequate patentee protection and certainty for third parties in constructing claims, Joel appears to favour the equivalents doctrine as it would encourage innovation, research and development, particularly in developing areas of pharmaceutical products and technology and would not conflict Singapore’s statutory regime. We will have to wait and see whether the Singapore Parliament agrees with Joel. In “Have the Rules Governing the Interpretation of Pari Passu Clauses in Sovereign Bonds Developed in Equal Step Under English and New York Law?”, Filbert Lam, University of Edinburgh discusses the different approaches of English courts and New York courts in interpreting pari passu clauses in sovereign bonds. Filbert says that until the 1990s, the pari passu clause provided for equal ranking of holders’ unsecured debt with other external debt of the same nature (“equal ranking simpliciter” interpretation), stemming from the “equal and fair” treatment assurances which governments provided to foreign creditors. However, since the early 1990s, some clauses contained an additional modifier which prima facie contained an equal ranking in the creditors’ right of payment (“equal payments” interpretation). This multiplicity of interpretations has introduced uncertainty in the sovereign bond markets and increased transactional costs and default risks for states. The US Second Circuit Court of Appeals held, in NML v Argentina (“NML”),13 if a pari passu clause contained both the equal ranking and payments elements, they conferred separate but related rights on the bondholders. Filbert concludes from his analysis of how the NY courts and the English courts view 9 10 11 12 13
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[1924] 1 KB 461 [2009] 2 SLR(R) 737 [2018] 1 SLR 856 [2017] UKSC 48 699 F3d 246 (2d Cir 2012)