Singapore II: Private Law and Case Law — a part of the book Digital Assets Law in Singapore and Switzerland by Dr Alexander Ressos.
Singapore II: Private Law and Case Law: a part of the book Digital Assets Law in Singapore and Switzerland by Dr Alexander Ressos.
This part belongs to Digital Assets Law in Singapore and Switzerland by Dr Alexander Ressos, published here in full, section by section.
Singapore II: Private Law and Case Law
Singapore has no statute that tells a court what a crypto asset is. The Payment Services Act 2019 defines a digital payment token for licensing purposes. Read more Singapore · Private LawWhy the property question matters
Whether a crypto asset is property is the question on which every other private-law consequence depends. Read more Singapore · Private LawThe four decisions
The first Singapore cryptocurrency trial arose from a malfunction on the Quoine exchange on 19 April 2017. Read more Singapore · Private LawWhat "thing in action" means for custody, trusts and insolvency
The practitioner should resist reading ByBit as a technical footnote, because the classification has consequences. A thing in action is the archetypal subject matter of an express trust. Read more Singapore · Private LawThe Law Commission's third category and whether Singapore follows
The Law Commission of England and Wales published its final report on digital assets on 28 June 2023 and a supplemental report with a draft Bill on 30 July 2024. Read more Singapore · Private LawA table of the Singapore authorities
The table shows the shape of the law: not one of the property holdings was reached after contested argument between represented parties on the specific point, and the Court of Appeal has still not… Read more Singapore · Private LawConsequences for particular assets
Bitcoin, ether and fiat-referenced stablecoins are all property on the authorities above. Stablecoins raise the additional question whether the holder also has a contractual claim against the issuer. Read more Singapore · Private LawThe opposing view and its limits
Two lines of criticism of the Singapore position deserve mention. Read more Singapore · Private LawThe trust as Singapore's answer to custody risk
Singapore has no statutory segregation rule for crypto assets in insolvency. Read more Singapore · Private LawExpress trusts and the three certainties
An express trust arises only where the settlor manifests an intention that the trustee hold property for the benefit of another. No particular words are needed. Read more Singapore · Private LawThe Quistclose trust
A Quistclose trust arises where money or other property is transferred for a specified purpose on terms that it is not at the free disposal of the recipient. Read more Singapore · Private LawThe custodian as trustee
Until 2024 whether a Singapore crypto custodian was a trustee depended entirely on its terms. Read more Singapore · Private LawThe Trustees Act 1967 and the trustee's duties
A trustee of a Singapore-law trust has the general power of investment conferred by s 4 of the Trustees Act 1967, which allows the trustee to make any investment that an absolute owner could make,… Read more Singapore · Private LawThe Trust Companies Act 2005
Carrying on trust business in Singapore requires a licence under the Trust Companies Act 2005 unless an exemption applies. Read more Singapore · Private LawConstructive and resulting trusts
Trusts arising by operation of law are the subject of Chapter IV, where they appear as remedies for fraud and mistake. One point belongs here. Read more Singapore · Private LawTrusts across the border
Singapore is not a party to the Hague Trusts Convention of 1 July 1985. Read more Singapore · Private LawPitfalls and opposing views
Three recurring errors deserve a warning. The first is the belief that calling an arrangement "custody" makes it a trust. It does not. The word describes a service. Read more Singapore · Private LawThe contract as the customer's real protection
Most of what a customer of a Singapore crypto platform can expect is written in the platform's terms of service. The property analysis of Chapter I tells the customer that tokens can be owned. Read more Singapore · Private LawTerms of service: formation and incorporation
A customer who ticks a box marked "I agree to the Terms" when opening an account has assented to those terms under ordinary principles of offer and acceptance. Read more Singapore · Private LawUnilateral mistake and algorithmic trading
Singapore's law of unilateral mistake is set by Chwee Kin Keong v Digilandmall. Read more Singapore · Private LawSmart contracts and the Electronic Transactions Act 2010
A smart contract is a program on a blockchain that executes predetermined actions when specified conditions are met. Read more Singapore · Private LawExclusion clauses and the Unfair Contract Terms Act 1977
Platform terms contain extensive exclusions and limitations of liability. Singapore's Unfair Contract Terms Act 1977, a re-enactment of the English statute, controls them in three ways. Read more Singapore · Private LawConsumer protection
The Consumer Protection (Fair Trading) Act 2003 gives consumers remedies against suppliers who engage in unfair practices, including misleading representations, taking advantage of a consumer's… Read more Singapore · Private LawPlatform-specific clauses and how courts read them
The last row deserves comment. Read more Singapore · Private LawContract law and platforms: Comparison with Switzerland
Swiss contract law reaches many of the same results by different means. The Code of Obligations does not know a general reasonableness test for exclusion clauses. Read more Singapore · Private LawThe problem and the Singapore response
A blockchain transfer cannot be reversed by the sender, by the recipient's bank or by a court. Read more Singapore · Private LawCauses of action
Where a fiduciary misappropriates assets entrusted to her, the assets are held on constructive trust for the principal from the moment of the misappropriation. Read more Singapore · Private LawInterim remedies
A proprietary injunction restrains the defendant from dealing with specific assets to which the claimant asserts title. Read more Singapore · Private LawTracing
Tracing is the process of identifying the asset into which the claimant's original asset has been converted. Following is the process of identifying the same asset as it moves from hand to hand. Read more Singapore · Private LawFinal remedies
At trial or on summary judgment the victim seeks four things: a declaration of constructive trust, an order for transfer of the assets still held, an account and a tracing order for assets that have… Read more Singapore · Private LawInteraction with the criminal process
Victims of crypto fraud in Singapore almost always report to the police. Read more Singapore · Private LawMistaken and fraudulent transfers: Comparison with Switzerland
Switzerland's civil remedies are weaker and its criminal remedies stronger. A Swiss civil attachment (Arrest) under Art. 271 ff. DEBA requires assets located in Switzerland. Read more Singapore · Private LawThe 2022 failures and the Singapore courts
The collapse of the Terra ecosystem in May 2022 and of Three Arrows Capital in June 2022 produced a chain of failures among lending platforms and exchanges with Singapore connections. Read more Singapore · Private LawThe Insolvency, Restructuring and Dissolution Act 2018
The Act, in force since 30 July 2020, consolidated Singapore's corporate and personal insolvency law and incorporated the restructuring reforms of 2017 that were designed to make Singapore a… Read more Singapore · Private LawInsolvency and the customer's claim: the cases
Zipmex operated a retail exchange from Singapore with licensed subsidiaries in Thailand and Indonesia and a customer base of close to 70,000. Read more Singapore · Private LawBeneficiary or unsecured creditor?
Whether a customer of a failed platform recovers in specie or receives a dividend depends on the characterisation of the relationship in the terms. The analysis has three stages. Read more Singapore · Private LawValuation and conversion of crypto claims
A creditor's claim in a Singapore liquidation is valued as at the commencement of the winding up and expressed in Singapore dollars for the purposes of proof and dividend. Read more Singapore · Private LawSet-off, netting and avoidance
Insolvency set-off applies in Singapore liquidations through the IRDA's incorporation of the bankruptcy rules on mutual credits and mutual dealings. Read more Singapore · Private LawCross-border recognition
Singapore's adoption of the Model Law allows foreign liquidators and administrators to obtain recognition and relief in Singapore. Read more Singapore · Private LawPitfalls and the opposing view
The recurring error of platform operators is to treat the moratorium as a solution. It is a stay. It buys time to propose a scheme. Read more Singapore · Private LawWhere contract ends
Contract governs the relationship between a platform and its customer. Chapter III has shown how far the terms decide what the customer may expect. Tort matters where contract does not reach. Read more Singapore · Private LawThe Singapore framework for a duty of care
Singapore applies a single test for the existence of a duty of care in negligence, set by the Court of Appeal in Spandeck Engineering v Defence Science and Technology Agency. Read more Singapore · Private LawCustodians and exchanges
A custodian owes its customer contractual duties under the custody agreement. Read more Singapore · Private LawDevelopers, validators and protocols
In Tulip Trading v van der Laan the English Court of Appeal held that it was seriously arguable that the developers who control the software of a bitcoin network owe fiduciary duties to the owners… Read more Singapore · Private LawProfessionals: auditors, oracles and advisers
A smart-contract auditor who certifies code as free of critical vulnerabilities, and whose report is published to attract users, is in the position of any professional who makes a statement knowing… Read more Singapore · Private LawVicarious liability and employee fraud
An employer is vicariously liable for the torts of an employee committed in the course of employment, including fraud, where the wrongful act is so closely connected with the employment that it is… Read more Singapore · Private LawTort and negligence: Comparison with Switzerland
An action in tort must be brought within six years of the accrual of the cause of action, which for negligence is the date of damage. Read more Singapore · Private LawTwo moments when control changes hands
Digital assets pass to other people at two predictable moments: divorce and death. Both expose the same structural feature of the asset class. Read more Singapore · Private LawDigital assets in divorce
On divorce the Family Justice Courts divide the matrimonial assets under s 112 of the Women's Charter 1961 in such proportions as the court thinks just and equitable. Read more Singapore · Private LawSuccession
A Singapore estate is administered under the Probate and Administration Act 1934. Where there is a will, the executor obtains a grant of probate. Read more Singapore · Private LawThe cross-border estate with Swiss elements
Singapore applies the common-law choice-of-law rules for succession. Succession to movables is governed by the law of the deceased's domicile at death. Read more Singapore · Private LawWhy the questions are harder for tokens
Every cross-border dispute raises three questions. Which court has jurisdiction? Which law applies? Will the resulting judgment be recognised where the assets or the defendant are? Read more Singapore · Private LawJurisdiction of the Singapore courts
A defendant who is present in Singapore or submits to the jurisdiction can be sued there. Read more Singapore · Private LawChoice of law
Singapore applies the common-law doctrine of the proper law of the contract. An express choice of law is given effect unless it is not bona fide or legal or is contrary to public policy. Read more Singapore · Private LawChoice-of-court agreements
The Choice of Court Agreements Act 2016 gives effect in Singapore to the Hague Convention on Choice of Court Agreements of 30 June 2005. Read more Singapore · Private LawRecognition and enforcement of judgments
Singapore has two statutory regimes for foreign judgments. Read more Singapore · Private LawArbitration
Most token purchase agreements, custody agreements between institutions and software licences in the crypto sector contain arbitration clauses. Read more Singapore · Private LawThe tension between a public ledger and a privacy statute
A public blockchain records every transaction permanently and makes the record available to anyone. Read more Singapore · Private LawThe Personal Data Protection Act 2012
The Act applies to every organisation that collects, uses or discloses personal data in Singapore. Public agencies and individuals acting in a personal capacity are excepted. Read more Singapore · Private LawWallet addresses and on-chain data as personal data
The Commission published a guide on data protection considerations for blockchain design in July 2022. It takes three central positions. Read more Singapore · Private LawCross-border transfers
An organisation may transfer personal data outside Singapore only if it takes appropriate steps to ensure that the recipient is bound by legally enforceable obligations to provide a standard of… Read more Singapore · Private LawThe Cybersecurity Act 2018 overlay
The Cybersecurity Act 2018 established the Cyber Security Agency and a regime for critical information infrastructure, under which designated owners of systems essential to the delivery of essential… Read more Singapore · Private LawPrivacy and the anti-money laundering duties
The sharpest conflict in practice is between the retention limitation and purpose limitation obligations on one side and the AML duties on the other. Read more Singapore · Private LawData protection: Comparison with Switzerland
The Swiss and Singapore regimes are close in structure and differ in enforcement. Switzerland has no administrative fines against organisations. Read more