Abstract:
The conflict of laws rules on foreign illegality are well established but mired in doctrinal controversy. This article is concerned with the rule in Foster v Driscoll [1929] 1 KB 470 (“Foster v Driscoll”) and the rule in Ralli Brothers v Compañia Naviera Sota y Aznar [1920] 2 KB 287 (“Ralli Brothers”). These rules are conceptually distinct from the domestic illegality framework outlined in Ochroid Trading Ltd v Chua Siok Lui [2018] 1 SLR 363 (“Ochroid Trading”) and Ting Siew May v Boon Lay Choo [2014] 3 SLR 609 (“Ting Siew May”). As a matter of Singapore law, this article argues that the proportionality test in Ting Siew May and Ochroid Trading should be applied to determine whether the rule in Foster v Driscoll is engaged to render the contract unenforceable. However, the principle of proportionality has no role to play for cases falling within the rule in Ralli Brothers, which this article argues is properly understood as an application of the doctrine of frustration by supervening illegality.