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Comparative Theory, Judges and Legal Transplants – A Practical Lesson from Singapore and its Relevance to Transnational Convergence

Basil C Bitas

(2014) 26 SAcLJ 50

Legal evolution in a hyper-connected world will increasingly come through, or otherwise be informed by, legal borrowing and transplants from without whether in the form of laws, techniques, concepts or simple inspiration. The pressures of globalisation and the resulting need for some form of operational, transnational convergence and harmonisation will require diverse legal systems to seek out the best rules and approaches regardless of provenance to address the demands of the modern legal and commercial environment. Judges, particularly in common law jurisdictions, will be at the forefront of this process of transnational legal selection fraught with both promise and peril. A “judiciously ecumenical” approach will be required to ensure that the best approaches are adopted while preserving the existing systemic balance of the “recipient” system. Comparative theory has a role to play in enlightening policymakers as to how best to proceed before the fact or, alternatively, in defining and explaining the parameters of the process in a post hoc manner. One such case in Singapore, Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193, provides a backdrop for examining the link between theory and practice.