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law involve public policy issues which can be “resolved only by the legislature”.131 Codification also prevents this critical obligation from turning into “something of a shibboleth”.132 There are two critical flaws in leaving the existence and scope of this duty subject to the common law of contractual implied terms. First, this duty may be excluded by express terms,133 even if customers do not expressly consent to the disclosure. This undesirably prejudices their rights to determine how their information is protected or disseminated. Second, third parties will not be subject to the obligation due to the principle of privity.134 These arguments support the proposal for an unambiguous statutory duty of confidentiality. For instance, the Singapore Parliament recognised the strong public interest arguments for legislating on the duty of confidentiality.135 This is imposed by s 47 of the Banking Act (“BA”),136 which aims at “maintaining the confidence of customers in [Singapore’s] banking system”.137 However, the Singapore Government also recognised the pre-2001 regime “impeded banks wanting to take advantage of potential operational benefits and savings”.138 The BA was amended to include exceptions to the statutory duty139 in the Third Schedule.140 qualifications have a “statute-like quality”: See, e.g. Hood (n 3) para 2.17. 131 Treitel (n 16), para 6-046; See also, Reid v Rush & Tompkins Group Plc (n 17); Scally (n 21); Crossley v Faithful & Gould Holdings Ltd (n 28), per Dyson LJ, at [46]; Jack Committee Report (n 6), para 5-48. 132 O’Donovan and Priskich (n 2) para 3.140. 133 Stanton (n 3) 343; See also Primary Group (UK) Ltd v The Royal Bank of Scotland plc (“Primary Group”) [2014] EWHC 1082 (Ch). 134 Stanton (n 3) 343; Primary Group (n 133). 135 See generally A Yeo and J Tan, “Chapter 33: Singapore”, in Neate and Godfrey (n 3). 136 Singapore Banking Act (Cap 19, 2008 Rev Ed), as amended by the Banking (Amendment) Bill 2001. 137 Parliament of Singapore 16 May 2001, Vol 73, Col 1689 (BG Lee Hsien Loong (then Deputy Prime Minister)). 138 Ibid.; Note that this is not a problem under the Tournier exceptions because disclosures in the lenders’ interests can never justify making a profit or operational benefits in general: See Hood, at fn 51. 139 Neate and Godfrey (n 3) para 33.7. 140 BA, Third Schedule.
This allows for disclosures when made for a “lawful purpose” to a “lawful recipient” only when the prescribed “conditions” are complied with.141 This author submits this approach is doctrinally sound and pragmatic and therefore should be implemented in English law. However, the Singapore courts had to grapple with the interaction between the statute and the Tournier decision. VK Rajah JA in Susilawati v American Express Bank Ltd (Susilawati)142 held s 47 sets out an exclusive regime governing the duty of confidentiality and Tournier no longer applies.143 This was based on a plain reading of s 47(1), which provides, “[c]ustomer information shall not … be disclosed … except as expressly provided in this Act”.144 This author respectfully disagrees with the ratio of the Susilawati judgment. When tabling the 2001 amendments, BG Lee Hsien Loong said in Parliament:145 “[A]ll banks will provide a basic level of customer confidentiality to all their customers. Beyond this legal minimum, individual banks and customers may reach their own contractual arrangements offering higher standards of confidentiality.” Section 47 does not hinder the imposition of a higher express or implied contractual duty under common law by the parties. It does, however, impose a statutory de minimis duty which banks must abide by. Having consulted Hansard, this was the intention of the Singapore Parliament in introducing these amendments. In this author’s view, the Singapore Parliament did not, and cannot be seen to have, intended for Section 47 of the BA to govern all other contractual agreements which bind the banks to a duty to provide higher levels of confidentiality. These 141 ibid.; Neate and Godfrey (n 3) para 33.9. 142 Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737, per VK Rajah JA, at [66]-[67] (Court of Appeal, Singapore). 143 Neate and Godfrey (n 3) para 33.23. 144 BA, s 47(1) (emphasis added). 145 Parliament of Singapore 16 May 2001, Vol 73, Col 1690 (BG Lee Hsien Loong (then Deputy Prime Minister)) (emphasis added in italics and underline).
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