Published on:
28 Jun 2024
2
min read
On gaffes in governing law clauses.
Spotted on an online retailer's website, in its terms of service¹ (h/t to Theodore Goh for highlighting this):
"SECTION 18 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 420 NORTH BRIDGE ROAD, #06-27 SINGAPORE SG S188727."
I have so many questions.
1️⃣ Is 420 North Bridge Road a micronation?² If so, is it a federation,³ with each unit having the right to make its own laws? Or is it only unit #06-27 that has declared itself to be a micronation, and is surrounded by neighbours who accept the jurisdiction of the Republic of Singapore?
2️⃣ What are the laws of 420 North Bridge Road, #06-27 (the "Jurisdiction")? Do they mirror Singapore law? And in the context of the terms of service being those of an online store, do the laws of the Jurisdiction require offer, acceptance, and consideration?⁴ And is Chwee Kin Keong v Digilandmall.com Pte Ltd⁵ good law in the Jurisdiction?
3️⃣ Unfortunately, the terms of service do not contain any jurisdiction or arbitration clause.⁶ So would Singapore Courts be the appropriate forum for the resolution of any dispute?⁷ Who are the experts who can give evidence⁸ on the laws of the Jurisdiction?⁹ And would it be necessary to apply for such experts to give video-link evidence?¹⁰
Disclaimer:
The content of this article is intended for informational and educational purposes only and does not constitute legal advice.
NB: please do not take this post seriously. You have been warned.
¹ Online retailers usually try to use the Terms of service on their website to control the terms of any contract entered into between the retailer and the online browser / shopper.
² https://en.wikipedia.org/wiki/Micronation. The idea that a single office unit can form a micronation is not unprecedented (see https://www.straitstimes.com/asia/australianz/ruling-from-your-home-inside-australias-micronations-boom) - if a family home can form the territory of a micronation, why not an office unit? Although I suppose the subsequent termination of a lease might pose a practical issue.
³ Like the United States of America for example, whose states are separate sovereign with the right to make their own laws (or so I understand).
⁴ These are legal concepts that need to be fulfilled before a binding contract comes into existence under Singapore law.
⁵ [2005] SGCA 2. Probably the seminal case from the Singapore Courts on whether an online shopper can take advantage of a mistake in the price listed by an online retailer.
⁶ A governing law clause specifies the laws by which an agreement should be interpreted. But it does not specify where an aggrieved party should sue or commence arbitration - you would require a jurisdiction or arbitration clause to address that. A common gap, unfortunately.
⁷ If someone sues over the Terms of service in the Singapore Courts, the defendant could theoretically object to the Singapore Courts hearing the matter, on the basis that the Singapore Courts are not the most appropriate courts to hear this dispute. Practically, however...
⁸ A dispute governed by foreign law can be heard by the Singapore Courts, provided the Singapore Courts have jurisdiction, but issues of foreign law will need to be proven as a matter of fact and not just by way of legal submissions.
⁹ Does the Jurisdiction have a law school? Does it require its legal experts to be called to its Bar?
¹⁰ Assuming that such experts reside¹¹ in the Jurisdiction, and that they are not prepared to travel¹² out of the Jurisdiction to give evidence before the Singapore Court.
¹¹ Notwithstanding Singapore zoning laws on residing in commercial units. But wait, isn't that the entire point - that Singapore laws don't apply in the Jurisdiction?
¹² According to Google Maps, it's a 4 minute drive from the Jurisdiction to the Supreme Court, and a 10 minute drive from the Jurisdiction to the State Courts.
