The Performance Interest in the Contract Laws of Asia

(projects funded by MOE Academic Research Fund and supported by Centre for Asian Legal Studies & Centre for Banking & Finance Law)
by Associate Professor Alexander LOKE & Associate Professor Burton ONG

Contract law is the backbone of commerce, making it an immensely important tool which facilitates all kinds of economic activity. Important practical problems emerge, particularly in globalised jurisdictions like Singapore, when commercial actors from countries with different legal systems transact and have different expectations of the remedies the legal system provides when the contracted performance falls short of the promises. This project is the first in a series of six proposed collections on the comparative contract laws of Asia, entitled "Studies in Asian Contract Law".* It promises to enhance the position of Singapore as a venue and catalyst for collaboration amongst legal scholars in Asia, and as the generator of the highest quality comparative law research commanding widespread international attention from East and West. While there is a long history of comparative law studies of the private law in European jurisdictions - such that there is a healthy body of such literature in the English language - there is a relative dearth of comparative studies of the contract laws of Asian jurisdictions. Such comparative law projects that exist tend to look to jurisdictions within their legal tradition. For example, China, Japan and Korea tend to look toward their continental cousins, and the international restatements like PECL, PICC and the DCFR. The lines of comparison have thus tended to flow toward the continental countries - in particular Germany. Moreover, contract law scholars in Asia (and in particular those in Civilian jurisdictions with Civil Codes) have tended to concentrate their scholarly inquiries on the doctrinal or textual rules, and their coherency within the jurisdictional framework.

By focusing on Asian countries as subjects of comparison, this project seeks to build bridges across the different traditions within Asia and to bridge the gap in the literature (and the gulf of ignorance in the 'West' about the contract laws in Asian jurisdictions). It is also timely given the clear interest in the rising power of Asia economies. In particular the proposal seeks to provide readers with an English language account of: (i) the law on different contract law topics in different Asian jurisdictions; (ii) the issues, policies and approaches of different Asian jurisdictions; (iii) an extensive bibliography to facilitate readers' further research, and (iv) an overview introductory essay which will, inter alia, identify similarities and differences in themes, value-preferences and theoretical underpinnings that run through the contract laws in Asia, and make some initial observations about how this relates to European contract law. The aim is to produce a series of books that will become the indispensable first stop for anyone interested in the contract laws of Asia.

The immediate project investigates the nature of the Performance Interest in the Contract Laws of Asia ("Performance Interest" Project). Where contracting parties fail to perform their obligations, the law might require the defaulting party to pay a sum to the aggrieved party, or order the defaulting party to perform her obligation (or the agreed remedy) for failure to do so, viz. specific remedies. While there might be common agreement that "contracts are made to be performed", legal systems differ in their readiness to order specific remedies. While the difference in legal traditions must play a part, so must the particular legal system's conception of the nature of the core contractual right - is it to receive the promised performance or merely monetary compensation for the losses suffered? The answer goes well beyond the 'specific remedies versus damages' debate and includes examination of the law's readiness to order specific performance or the remedies the parties have agreed in the contract, as well as the scope of 'loss' for which compensation may be awarded.

Conference Programme | Book Publication (forthcoming)