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BSP1004 Lecture 1 - 2010 - INTRODUCTION TO LEGAL ...

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Unformatted text preview: INTRODUCTION TO LEGAL ENVIRONMENT OF BUSINESS LECTURES 1 & 2 INTRODUCTION TO LAW •  What is law? •  Why do you need laws? •  Is there a connecGon between law and business? •  If so – why not just leave it to lawyers? Why should the business know about the law? •  Which country’s laws will we be looking at? Law and Ethics •  What is ethics? •  (a) Can something which is illegal also be unethical? •  (b) Can something be legal but unethical? •  (c) Can something be illegal but ethical? •  (d) What is the implicaGon of (a) on a business? SOURCES OF LAW •  EssenGally, there are two sources of law: •  (a) Statutes/Acts/LegislaGon •  (b) Cases Statutes/Acts/LegislaGon •  Made by whom? - - •  Can statute law grow/change over Gme? •  How/where can you access them? - hYp://statutes.agc.gov.sg/ Cases •  Made by whom? •  Note: general doctrine of precedent (Why is there such a doctrine?) •  Note: case law, just like statute law can grow/ change over Gme. •  How/where can you access them? - lawnet.com.sg •  High Court – (2010) - Doctors in principle can be liable in negligence. •  Lower Court – (2011) - Doctor being sued in negligence – is the court bound by the 2010 HC decision? •  Lower Court – (2011) - Lawyer being sued in negligence – is the court bound by the 2010 HC decision? Statutes and Cases •  So the legal soluGon to any problem lies in looking at the relevant _____________. •  Would a typical business actually refer to statutes and cases? Statute Law Case Law US Yes Yes China Yes No India Yes Yes Indonesia Yes No Thailand Yes No Vietnam Yes No South Korea Yes No CRIMINAL AND CIVIL PROCEEDINGS •  Proceedings heard in court may be “criminal” or “civil” in nature. •  What are some examples of criminal maYers? •  When will the doing of something amount to a crime? •  Issues that affect the private rights and obligaGons of two parGes is civil maYer. •  What are some examples of civil maYers? Some differences (generally speaking) between criminal and civil proceedings Criminal Ac2on ParGes Aim Terminology Burden of Proof Civil Ac2on State v Defendant PlainGff v Defendant Criminal and Civil Proceedings: Other MaYers •  Is it possible that both civil and criminal proceedings arise out of the same set of facts? •  What are some examples? Criminal and Civil Proceedings: Other MaYers •  If the facts give rise to both a civil and criminal acGon – is there any connecGon between them: ie, are they generally heard by the same court/judge? •  Will a business, be more concerned with civil or criminal proceedings? InternaGonal Comparisons Criminal Ac2on Civil Ac2on US Yes Yes China Yes Yes India Yes Yes Indonesia Yes Yes Thailand Yes Yes Vietnam Yes Yes South Korea Yes Yes Civil Dispute ResoluGon •  If there is a legal wrong, would a business definitely want to resolve it through the avenues provided for seeking redress? If not – why not? •  If a business wants to resolve a legal dispute, these are some avenues open to it for seeking redress: •  NegoGaGon •  LiGgaGon •  ArbitraGon •  MediaGon •  Small Claims Tribunal LiGgaGon •  There are essenGally 2 levels of courts in Singapore: •  (a) Subordinate Courts - hYp://app.subcourts.gov.sg/ •  (b) Supreme Court – hYp://app.supremecourt.gov.sg •  Some disadvantages of liGgaGon: •  Must you get the consent of the other party to go for liGgaGon? LiGgaGon - Costs •  If you win a court case, would the losing party pay some, all or none of your legal fees? ArbitraGon •  ArbitraGon can be conducted can be conducted in various venues, including at the Singapore Interna2onal Arbitra2on Centre: hYp://www.siac.org.sg/ •  Advantages of arbitraGon at SIAC: -   It may be cheaper -   It is usually faster -   It can be more informal -   There is privacy -   Arbitrator can be someone with industry experience -   ArbitraGon awards are more internaGonally enforceable. •  Must you get the consent of the other party to go for arbitraGon? Model ArbitraGon Clause •  Any dispute arising out of or in connecGon with this contract, including any quesGon regarding its existence, validity or terminaGon, shall be referred to and finally resolved by arbitraGon at the Singapore InternaGonal ArbitraGon Centre in accordance with the ArbitraGon Rules of the Centre ("SIAC Rules") for the Gme being in force. MediaGon •  MediaGon can be conducted at various avenues including at the Singapore Media2on Centre: hYp://www.mediaGon.com.sg •  What are the advantages of mediaGon at SMC: -   It is much cheaper -   It is much faster -   It is very informal -   There is privacy -   It aYempts to create a win- win situaGon -   The mediator may have industry experience •  But note: process of mediaGon is totally different from liGgaGon/ arbitraGon, ie: there is no judgment. •  Must the consent of the other party be obtained to go for mediaGon? Another Avenue for MediaGon: Primary Dispute Resolu2on Centre InternaGonal Comparisons Li2ga2on Arbitra2on Media2on US Yes Yes Yes China Yes Yes Yes India Yes Yes Yes Indonesia Yes Yes Yes Thailand Yes Yes Yes Vietnam Yes Yes Yes The Small Claims Tribunal •  The small claims tribunal hears small claims (ie $10,000 or less): hYp://www.subcourts.gov.sg/courts/sct/ •  However, if both parGes agree in wriGng, claims up to $20,000 can be heard. •  However, not all types of small claims can be heard at the small claims tribunal. •  The most common type of claim that can be heard: disputes relaGng to the sale of goods or services. •  A business can use the small claims tribunal to bring a claim against another business. •  No lawyers are involved in the small claims tribunal and you don’t need the consent of the other party to iniGate proceedings. SOME METHODS OF ENFORCING CIVIL JUDGMENTS •  What happens if a dispute is resolved – but the debtor does not pay? In such a case, the creditor has several opGons open to him to enforce payment, such as the following: •  (a) BANKRUPTCY: hYp://www.minlaw.gov.sg/ipto •  (b) WRIT OF SEIZURE AND SALE •  (c) GARNISHEE ORDER •  What if despite the use of one or more of such methods, the creditor is unable to recover all that is owed? What is the implicaGon of this on a business? Bankruptcy •  •  •  •  •  •  What is bankruptcy? What is the minimum amount that needs to be owing? When a person is made a bankrupt the public trustee or in some cases an accountant would step in to gather the assets of the bankrupt and distribute them to the creditors. What items cannot be gathered/seized? What are the consequences of bankruptcy? When does bankruptcy end? Writ of Seizure and Sale §༊  What is a writ of seizure and sale? §༊  Why would someone go for some other method of enforcement such as a WSS, instead of bankruptcy? Choosing Between the Different OpGons •  Debt: $20,000 •  Available Assets under Bankruptcy: $16,000 •  Cost of Bankruptcy: $3000 •  Creditor Will Get: •  Debt: $20,000 •  Available Assets under WSS: $14,500 •  Cost of WSS: $500 •  Creditor Will Get: Garnishee Order §༊ Refers to a court order allowing the seizure of amounts “owing and accruing” to debtor – eg: monies in bank accounts. Summary •  Law and business is interlinked and so is law and ethics. •  Law emanates from statutes and judge- made case law. •  Some legal maYers are criminal in nature, some are civil, some give rise to both. •  Where there is a civil dispute, there are several ways in which the dispute can be resolved. What would be the best method would depend on the circumstances and it may be beYer if the business considers this issue before the problem arises. •  There are several ways to enforce a judgment given in one’s favour. What would be the best method would depend on the circumstances. But a business must bear in mind that there is always a risk. Readings •  Reading: Chapter 1 of “IntroducGon to Business law in Singapore” (4th EdiGon) including porGon on “Obtaining Legal Advice”) and/or Chapter 1 and 2 of “Singapore Business Law” (5th EdiGon). •  Note: It will suffice to purchase any one of the above menGoned books. Course Related MaYers: IVLE • IVLE: Workbin; Announcement. Course Related MaYers: Assessment •  Group Assignment (20%) - there will be 1 group assignment and it will have 2 parts: -   1st part: structured: answering highlighted tutorial based quesGons. -   2nd part: unstructured: asking criGcal quesGons/giving comments (max: 5) or discussing an arGcle (max: 1000 words) - in relaGon to the topic being discussed. •  Class ParGcipaGon (20%) – involves answering/asking quesGons in class. •  Final ExaminaGon (60%) – will be an open- book examinaGon. ...
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