The highest courts in Singapore, Australia and the UK cannot agree on a uniform approach to determining if a contractual provision is unenforceable as a penalty. This has significance for the choice of governing law. As a broad summary:
- More provisions are likely to be a penalty under Singaporean law than under Australian or English law
- More provisions are likely to be a penalty under Australian law than under English law
The leading decisions for each jurisdiction are:
- Singapore: Denka Advantech Pte Ltd v Seraya Energy Pte Ltd  SGCA 119
- UK: Cavendish Square Holding BV v Makdessi  AC 1172
- Australia: Paciocco v Australia and New Zealand Banking Group Ltd  HCA 28 and Andrews v Australia and New Zealand Banking Group Ltd  HCA 30
There are two aspects to the scope of the penalty rule – the test and the types of obligations to which it applies. Singapore applies a less stringent test to only one type of provision; Australia applies a more stringent test to more types of provisions; and the UK applies a more stringent test to only one type of provision, with the result that a smaller group of sanctions are more likely to be a penalty.