This paper examines the development and application of the ‘unconscionability’ exception to the principle of autonomy of abstract payment undertakings in the jurisdiction of Singapore. It establishes that the development of this exception in Singapore has been due to the failure of the Singapore courts to clearly mark the parameters of the ‘fraud in the transaction’ defence in earlier cases, which arguably justified the application of the ‘fraud as no bona fide belief’ defence. However, this was later re-interpreted as establishing an overly broad ‘unconscionability’ exception in relation to granting an injunction, due to the fact that the courts examined the underlying contract in order to reach their decision. Nonetheless, this paper clearly demonstrates that although the ‘unconscionability’ exception could be said to be quite well entrenched in Singaporean jurisprudence now, as it has been expressly recognised as a separate defence in relation to granting an injunction under performance bonds in Singapore case law, it would not be wrong to say that in the majority of these cases similar conclusions could have been reached by applying the wider ‘fraud as no bona fide belief’ exception. Thus, what is termed ‘unconscionability’ in Singapore is not very different from the wider ‘fraud in the transaction’ exception, as demonstrated in this paper.
|Number of pages||24|
|Journal||Lloyd's Maritime and Commercial Law Quarterly|
|Publication status||Published - Aug 2016|
- letters of credit
- performance bonds
- fraud exception