Many professionals, especially from the legal fraternity, had written about this matter but more importantly, what is the sentiment of an architect with regards to this matter? As mentioned, it is call the ‘battle[i]’ of the standard forms of building contract[ii] and as to why it is indeed, a battle, has a long stories date back to the late sixties.
As a former colonized country of the colonial British Empire, we had adopted many of the common law jurisdictions and our construction law is built upon such as its core foundation. In UK, “under the sanction of the RIBA and in agreement with the Institute of Builders and the National Federation of Building Trades Employers of Great Britain and Northern Ireland”, in the 1903 the standard form of building contract was produced[iii]. In the late 60s, the Pertubuhan Arkitek Malaysia (PAM) came together with the Institution of Surveyor (ISM) formalized the first standard forms of building contract, called PAM-ISM Form 69 closely modeled on the UK Joint Contract Tribunal (JCT) Form 63 edition. It has its fair share of backlash from the industries due to its ‘farrago of obscurities’ legal draftsmanship[iv], tested in court and throughout the years for the next 30 years withstand the storms and set many precedents in the construction law of the country. It was so widely used in the private construction sectors[v], almost everyone knows this ‘devil’, practically inside out. As being an architect, administering this ‘devil’ has been our daily jobs and without fail, one must admit, this ‘devil’ has given the architect enormous power via its archaic ‘farrago of obscurities’ terminologies, one being the personal favorite, ‘to the satisfaction of the architect’. Honestly, nobody appreciate this phrase better than the architect and if you were to rephrase it, ‘how to satisfy the architect?’ such question opens a floodgate of legal entanglements that the current legal maxim such as ejusdem-generis could not well explained such! While the government or the public sector adopted the Public Work Department (PWD) or commonly also known as the Jabatan Kerja Raya (JKR) 203A Form. Architects who has worked in the public sector projects would have known well the intricacies of this JKR 203A Form. The construction of this form was largely contributed from the RIBA form of Building Contract 1931 Edition. By the same token, the Institution of Engineers (IEM) standard forms of contract called the IEM Form are mainly used for engineering matters. In all purpose, most of the IEM standard forms modified from the International Federation of Consulting Engineers (FIDIC) contract[vi]. At this time, various forms were tailor suit for their purposes and failure to adopt or to advise the correct use of these standard forms will ultimately result in costly, if not ‘painful’ legal disputes. Bombarded with the onslaughts of mounting pressures from the contractors, developers, the legal fraternities, end users and notably the government, PAM for the very first time, after 30 years, decided to make revision to its PAM 69 Form just to make it ‘relevant’ in view of its popularity among the industry players. In hope that the ‘devil’ becomes much of a lesser ‘evil’, the PAM council at that time, commissioned[vii] its own sole council member at his own personal capacity, to redraft the PAM Form. As a result, the PAM 98 Form was born. In substance, the PAM 98 Form was an improvement to the PAM 69 Form with less ‘farrago of obscurities’ in legal draftsmanship, however, it was view as a unilateral revision (drafted by one person) without participation from the stakeholders of the construction industries and to a larger degree, ‘pro-employers’[viii]. In forms, the first issuance of the PAM 98 Form was ‘technically challenged’ and a re-launch was made in 1998. The PAM 98 Form being a relatively new form, was yet to be tested in court, but like the saying goes, is better to be with ‘the devil you know than the devil you don’t know[ix]’, through time the industry took it stock load and barrel. The Construction Industry Development Board (CIDB) took the opportunity to make its presence felt. Collaborated with the other stakeholders (for all-inclusive policy, it was a strange sight to notice that PAM was not represented in the drafting committee) in the industry and through their newly minted Procurement Policy Committee, they came out with their very own version of standard forms called CIDB 2000 Form[x]. Differ from PAM 98 Form, any of the allied professionals such as engineers or quantity surveyors could be the named contract administrator or commonly known as the Superintendent Officer (SO). The most peculiar point of this form is the risk allocation that has been shifted to the employer, meaning, it is ‘extremely pro-contractors’. CIDB 2000 Form, conceived as the ‘knight in shiny armors’ was rarely employed in the private sector. To many of the allied professionals, especially the architects, it has since faded into oblivion[xi]. The PAM 98 Form has since continued to be the ‘preferred choice’ among the industrial players. As approaching 2006, the PAM 98 Form has since been tested in court, deliberated at length and constructively criticized by the stakeholders of the construction industries. It has come to a point that PAM needs to re-look into the PAM form again, to make it ‘watertight’. Instead of a sole member’s commissioned work, a committee was set up to undertake the revision. The new PAM 2006 Form was born with a more ‘regimented’ approach where ‘time is of the essence’ is given to almost every specific performance, failing to comply may amount to a breach. Gone were the days of archaic ‘farrago of obscurities’, such as ‘to the satisfaction of the architect’. More documentation work and liabilities were placed onto the shoulders of the architect as contract administrator. Legal implication with regards to ‘conditions precedents’ and ‘specific performance’ were introduced, almost making the architect’s ‘freedom to administer’, almost non-existence. The so called ‘devil’ was beyond recognition, making contract administration a ‘full time and painful job’ fit for a ‘keyboard administrator’ architect. Very pitiful with regards to its remuneration against the quantum of liabilities vested upon it[xii]. Strangely, recognizing the fact that failure to adopt or to advise the correct use of these standard forms will ultimately result in costly, if not ‘painful’ legal disputes, the act of omission was now, transferred to someone else probably liked the ‘poor’ architect as there was an exclusion clause finely printed in the PAM 2006 Form that read, ‘all parties must rely upon their own skill and judgement … when using this document and PAM assumes no liability to any user … in connection with such use’[xiii], classic indeed. Came 2012, the year of reckoning with the Construction Industry Payment and Adjudication Act 2012 (CIPAA), spearheaded by the Asian International Arbitration Centre (AIAC), the construction industries were thrown to its tipping point, welcomed by the contractors, sub-contractors and to a far degree, consultants too[xiv] and shunned by some employers notably developers, any claims put forth by the claimant, in CIPAA, will stand an 80% chances of winning due to its ‘rough justice stance’ with no ‘finality’. ‘I will CIPAA you[xv]’, became the common phrase in town. No doubt that the pendulum of wining, has since shifted to the respondents post the ‘View Esteem Case[xvi]’, adjudication decisions had been making rounds in the court of law without consistent and predictable outcomes. In the matter of the PAM 2006 Form, the ‘commercial agreement to any conditional payment’ has been made void as in the ‘Econpile Case[xvii]’. Now, the newly minted, PAM 2006 Form, with regard to its clause 25.4(d) on conditional payment upon determination, has been made completely unenforceable. In 2018, the PAM Committee that has since went into overdrive while waiting for the Federal Court’s decision on ‘Econpile Case’ did not see any light at the end of the tunnel, proceeded to account for such a decision, came with a minor revision, with complicated rewording of its clause 25.4(d) and called it the PAM 2018 Form. The content of the PAM 2006 Form, no doubt, were intact and fortified with numeral annotation rearrangement, however, more documentation work and liabilities were placed onto the shoulders of the architect as contract administrator such as having the architect to certify such breach so to allow the employer to cash the performance bond as in clause 39.5 and having the architect spelt out what were the outstanding works while issuing its CNC, almost suggesting to the contractor that ‘they don’t even know what is their work, and has to be reminded by the architect’. As the architect, one feels it is liken to use a ‘sledgehammer to nail a nail’. The story didn’t quite end here. In the same year 2018, the Asian International Arbitration Centre (AIAC) took the PAM 2006 Form, almost word by word and adopted the same as their AIAC 2018 Form of building contract. Needless to say ‘dispute’ arise on matter of copyright and subsequently a revise AIAC 2019 Form[xviii] of building contract with a total revamp has been introduced. In this AIAC 2019 Form anyone can be the contract administrator including anyone from the legal fraternity. Without prejudice, what would you think when anyone from the legal fraternity without technically trained, administer the contract? Often one may asked, how would anyone from the legal fraternity acquire his 7 years’ experience in the construction industry? Doing litigation works on behalf of the contractors or employers accounts for such including reading up construction case laws? When someone[xix] pointed that in 2016, as published by the AIAC (there was no such breakdown analysis anymore), there were 363 CIPAA adjudicators and out of these, 177 were lawyers, 59 were Engineers while QS made up 51 and others accounted for 65. Architects, only 11! Does it means to say that architects were so incompetent to even pass the adjudication examination let alone competent enough to administer a construction contract? I overheard someone is telling that majority of the arbitration awards that were thrown out of court were written by ‘non-legal trained’ arbitrators. Frankly, as an architect, one cannot, not ask, as to these 177 lawyers seating as CIPAA adjudicators, where do they obtain their 7 years’ experiences in the construction industries as a fundamental prerequisite to be a CIPAA adjudicator? As an architect, one may view that having the AIAC 2019 Form, it is an avenue for the legal fraternity to acquire their 7 years’ experience in the construction industries as a fundamental prerequisite to be a CIPAA adjudicator. Not long thereafter, there could also be many from the legal fraternity, claiming to be expert in architecture, construction, engineering and so forth. In 2017, other forms of contract such as the New Engineering Contract (NEC-4)[xx] were also making its round in the market, just a ‘keyboard button’ away that may set you back RM4,000.00[xxi] poorer. In essence NEC-4 fundamental principles of risk and costs collaborations[xxii] between the contractor and the employer was only popular in HongKong Government’s Public Funded Projects. While penning this personal reflection of an architect’s sentiment on the forms of the building contract (now, they fashionably called it suite) the construction industries are in disarray with regards to the less predictability of the Court’s decision on CIPAA, damages such as LD and the multitudes of pitfalls contractors and employers come to face maneuvering the intricate nexus of the conditions of contract that may not necessarily reflects the parties true intentions. Contract administrators such as the architects now having to perform multiple roles that they themselves were not familiar with including the ‘devil’s advocate’ just to make sure that the building is built according to his design and intention. Why so difficult? [i] ‘Battles of the Forms’ is a legal term for the common situation in which one business firm makes an offer in the form of a pre-printed form contract and the offeree responds with its own form contract, see www.fenwickelliott.com/research-insight/annual-review/2011/battle-forms. At common law, any discrepancy between the forms would prevent the offeree's response from operating as an acceptance. However, for the purpose of this article, it takes the literal meaning of the standard forms of building contract one ‘outdoing’ one another to garner a larger acceptance in the building industry. [ii] Standard Form Contracts are agreements that employ standardised, non-negotiated provisions, usually in pre-printed forms; retrieved from www.designingbuildings.co.uk/wiki/Standard_form_of_contract [iii] History of the JCT, retrieve from www.corporate.jctltd.co.uk/about-us/our-history [iv] Powell-Smith, Vincent, “The Malaysian standard form of building contract (PAM/ ISM 69)”, Malayan Law Journal, (1990). [v] It is estimated that 90 per cent of the building contracts in the private sector are based on the PAM form (Sundra, 2010), Zarabizan bin Zakaria, Syuhaida binti Ismail and Aminah binti Md Yusof ; “An Overview of Comparison between Construction Contracts in Malaysia: The Roles and Responsibilities of Contract Administrator in Achieving Final Account Closing Success”, Proceedings of the 2013 International Conference on Education and Educational Technologies (2013), retrieved from http://www.inase.org/library/2013/rhodes/bypaper/EET/EET-02.pdf [vi] Oon CheeKeng, “Standard Construction Contracts in Malaysia Issues and Challenges”, retrieve from www.academia.edu/5722671/STANDARD_CONSTRUCTION_CONTRACTS_IN_MALAYSIA_Issues_and_Challenges_CK_OON_and_CO._Advocates_and_Solicitors_STANDARD_CONSTRUCTION_CONTRACTS_IN_MALAYSIA_Issues_and_Challenges_BY [vii] P Kasi reported that Sundra Rajoo has offered his services in his personal capacity to complete the task of revising the PAM Formof Contract from where the late KC Cheang had left off… Council accepted Sundra Rajoo’s offer to complete the revision … for a fee of RM 30,000.00; disclosed by Ezumi, PAM Council Minute of Meeting. [viii] … aspiration to produce a fair and balanced form of contract that would satisfy the role and to respond positively to the feedback from the industries…extract from the Background, “PAM Contract Drafting Committee, Handbook for PAM Contract 2006”, Pertubuhan Arkitek Malaysia, KL (2010). [ix] used to say that it is better to deal with a difficult person or situation one knows than with a new person or situation that could be worse, retrieved from www.merriam-webster.com/dictionary/better%20the%20devil%20you%20know%20than%20the%20devil%20you%20don't [x] Ong SeeLian and team; “Guide on the CIDB Standard Form of Contract for Building Work”, CIDB (2000). Retrieved from cidb.gov.my/images/content/pdf/p2p/guide-on-cidb-standard-form-of-contract-for-building-work.pdf [xi] Although it appears that CIDB’s intention is to make the use of their forms commonplace, the question as to whether these CIDB Standard Forms will ultimately replace the existing JKR Standard Forms for the moment at least begets no precise answer, Sundra Rajoo, “Standard Forms of Contract – The Malaysian Position”, IBA Tokyo (2014). Retrieved from www.aiac.world/news/82/IBA-Tokyo-:-Standard-Forms-of-Contract-–-The-Malaysian-Position-by-Datuk-Professor-Sundra-Rajoo [xii] The fees do not commensurate with the work done, response taken from an interview between the Edgeprop and Zulhamlee (former PAM President), “Why Malaysian architecture doesn't have to suffer from the Gucci syndrome”, EdgeProperty Lifestyle Edition (2015), retrieved from www.edgeprop.my/content/why-malaysian-architecture-doesnt-have-suffer-gucci-syndrome [xiii] Sundra Rajoo, WSW Davidson and Harban Singh, “The PAM 2006 Standard Form of Building Contract”, Lexis Nexis Malaysia Sdn Bhd (2010). [xiv] Consultants can claim for unpaid fees via CIPAA with reference to the judgement in Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd [2016] MLJU 1827 [xv] Sounded liked ‘I will slap you’ in the Malay language – ‘sepak’ means slap. [xvi] View Esteem Sdn Bhd v Bina Puri Holdings Berhad, read www.lh-ag.com/wp-content/uploads/2017/11/DR-e-Alert-LHAG-update-20171113.pdf [xvii] Econpile (M) Sdn Bhd v IRDK Ventures Sdn Bhd and anor [2017] 7 MLJ 732, also read christopherleeong.com/media/3011/clo_201804_cipaa.pdf [xviii] Read www.lexology.com/library/detail.aspx?g=98bd7c4b-8587-406b-8506-20ad2207a981 [xix] As pointed out by David Cheah in the Joint IEM MIArb RISM and PAM’s ADR course for Practitioners held in IEM on 1st Aug 2019. [xx] See www.designingbuildings.co.uk/wiki/NEC4#Confidentiality [xxi] Exchange rate to Ringgit Malaysia from Pound Stirling of 812.00 see https://www.neccontract.com/NEC4-Products/NEC4-Contracts/NEC4-June-2017-Edition-including-Alliance-Contract [xxii] Read www.fenwickelliott.com/research-insight/newsletters/insight/75
1 Comment
Reflecting on a Talk About Liquidated Damages post Cubic Electronics v. Mars Telecommunications4/26/2019 Postscript-3: UPDATES, it was interesting to note that in this case[1], the FC held among others, the LD clause in the standard HDA SPA Schedule H, although mirrored s.75, Contract Act 1950, need not necessarily follow the findings of Cubic Electronics v Mars Telecommunication[2], which referred to forfeiture of deposit; instead warrant proof of actual loss. This findings implied that the Cubic decision cannot be applied across the board, including those of the construction dispute. As it stands, this law is remained unsettled. -------------------------------------------------- [1] Chong Nge Wei & Ors v Kemajuan Masteron Sdn Bhd [2022] 1 LNS 581 [2] [2019] CLJ 723 Postscript-2 [Cubic’s Reversal of Burden of Proof is to be Applied Prospectively]: The Malaysian Federal Court has taken great length again, to contemplate the issue of damages versus penalty clause[1]; revisiting Cubic (supra)[2]; in determining that cases decided by the court of first instance, prior to Cubic (supra), will be taken as ‘prospective approach’[3]; and not ‘retrospective in nature’; to apply retrospectively[4], is to allow parties to prepare and argue their case based on the ‘burden of proof’ in the trial stage[5]. ------------------------------------------------- [1] Plenitude Drive (M) Sdn Bhd v Tekun Nasional [2021] Civ App. 02(f)-92-10/2018(W) [2] Para 38, Plenitude (Supra): Tekun must adduce evidence to prove that the damages claimed by Plenitude is unreasonable. [3] Ibid: Selva Kumar (supra) and Johor Coastal (supra) should not be applied […]; Para 33, Plenitude (Supra): Ling Peek Hoe v Ding Siew Ching [2017] 7CLJ641 [4] Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5MLJ1 [5] Para 32, Plenitude (Supra) Postscript: Many things had happened to the application of law pertaining to Liquidated Damages (‘LD’). I take the opportunity to share what has happened since in our local scene: Provision for late completion damages is common in the construction industry.[1] To avoid dispute on quantum and to allow an accurate estimates on cost, liquidated damages LD was adopted where the quantum is a genuine pre-estimate subject otherwise for court to ascertain.[2] It removes the need to proof ‘actual loss’ only if deemed ‘disproportionate’ it will be taken as penalty clause.[3] This evolves from the fact that penalty clauses are unenforceable.[4] On account that the ‘pre-estimated’ loss bear no relation to the loss that might have occurred. [5] Difference between LD and penalty clause may be straightforward in theory but difficult in application.[6] LD also puts a limit (cap) on damages that may be considered unfair under UCTA[7], under the UK’s provision as mentioned in obiter, OfirScheps. While the Cavendish Square decision was upheld in Malaysia via Cubic Electronics, Singapore’s departed from the Cavendish Square approach, in Leiman v Noble Resources[8] and another[9], the Appeal Court reaffirmed the principle set out in Dunlop Pneumatic Tyre v New Garage & Motor[10] that LD is not a penalty considering the contractual terms, if the amount of LD did not exceed greatest conceivable loss that arisen from the breach, in contrast to the Cavendish Square approach where the amount of LD exceeded the greatest conceivable loss that arisen from the breach, is still not a penalty clause. This is to protect the “legitimate interest” of the innocent party. The Singapore court viewed such term to be too vague for commercial interests. In a ‘nutshell’, a LD clauses can be considered a “genuine pre-estimate” of loss and not a penalty, if only the employer, during tender, could furnish actual calculations as to how the expected loss is computed, instead of leaving it out to the contractor to figure it, themselves, as implied in Malaysian’s Cubic Electronics approach. Another, is the question of whether LD clause which is void limits the contractor for general damages? The English court attempts to uphold pre-determined damages agreement between the parties but such LD clauses may tend to be voided under various circumstances such as ‘time at-large’. The question is, will ‘general damages’ also be capped at LD levels? In one-case[11], it was held that if the LD is void, it shall still act as the cap for general damages. In contrast, a Singapore case[12] a contractual LD cap will not constrain the recovery of general damages. The law on such is yet to be settled. Yet another case[13], the UK Supreme Court contemplated the issues, one, whether liquidated damages were payable under this clause in respect of work which had not been completed before the contract was terminated? Two, whether “negligence” in the exception means the tort of negligence or whether it includes breach of the contractual duty of skill and care? And three, whether liquidated damages are subject to a cap in the contract on the amount of recoverable damages? The court held that, for issue one, accrual of liquidated damages comes to an end on termination of the contract; issue two, English law “negligence” covers both the separate tort of failing to use due care and a breach of the contractual provision to exercise care [extra contractual obligation]. Parties must seek damages for breach of contract under the general law; and three, LD clause does not need to provide for it. --------------------------------------------------------- [1] Multiplex Constructions v Abragus(1993-94)33NSWLR504 [2] Cellulose Acetate Silk v Windes Foundry[1933] AC20 [3] Cavendish Square v Talal ElMakdessi and Parking Eye v Beavis[2015] UKSC67 [4] Dunlop Pneumatic Tyre v New Garage Motor[1915] AC79 [5] Johnson v Johnson[1989] 1WLR1026 [6] Alfred McAlpine v Tilebox[2005] EHWC541 [7] Unfair Contract Terms Act1977 [8] (2020)SGCA 52 [9] Denka Advantech v Seraya Energy (2020)SGCA119 [10] [1915]AC79 [11] Eco World – Ballymore Embassy Gardens v Dobler [2021]EWHC2207TCC [12] Crescendas Bionics v Jurong Primewide (2021)SGHC189 [13] Triple Point Technology, Inc v PTT Public Company Ltd [2019] EWCA Civ 230 Attended a talk by the Society of Construction Law, in AIAC, on the subject matter of Liquidated Damages post Cubic Electronics v Mars Telecommunications[1]. Speakers were mostly lawyers with one representing the contractor, MBAM. Wonder why Architects, QS and Engineers were excluded from giving their views?
Recent Federal Court position on Liquidated Damages (“LD”) clause, under Section 75 of the Contract Act 1950 “CA1950”, has been shifted from the position held in the Selvakumar Murugiah v. Thiagarajah Retnasamy[2], where the Employer would still have to prove loss to a more inclusive positions where the parties’ freedom of contract were mutually inclusive especially where parties have comparable bargaining power and are properly advised. The court has taken an approach similar to the UK Supreme Court position in Cavendish where proper credence to the parties’ own ability to assess their own commercial position and in doing so, allowing the damages clause to be used as a “permissible risk allocation tool” of the following features: -
Obviously these new sets of “tests” were taken as a purely legal point of view, such as the test of “legitimate interest”, “proportionality” and “reasonableness”. The construction industries, however, posed a different sets of complexities such as:
As at the end of the session, there is no obvious answer as to what constitute these new sets of “tests” of “legitimate interest”, “proportionality” and “reasonableness” for immediate use by the professionals in the construction industries. A passing remarks was made to PAM 2018 form with regard to Clause 22 but failed to deliberate further on Clause 22.2. A point to note, that Clause 22.2 was drafted to keep in mind that the LD stated in the Appendix is a genuine pre-estimate of loss and or damage which the employer will suffer in the event that the contractor is in breach… the parties agree that by entering into the contract, the contractor shall pay to the employer the said amount, if the same breaches due without the need for the employer to prove his loss and or damage unless the contrary is proven by the contractor. -------------------------------------------------------- [1] [2019] CLJ 723 [2] [1995] 1 MLJ 817 The recent completed CIArb Convention started with the opening address by the Hon Chief Justice stressing on the current amended Arbitration Act 2018, with particular to sec 42, on the removal of opt-in/out of UNCITRAL provision, that may posed new challenges to the bench, as more judges needed to be informed on these aspects of the Arbitration Act and the role of AIAC to see to it as a refreshing call. The recent case of View Esteem and Leap Modulation had to be given a new perspective that the bench needed to be given more role with emphasis on Court Assisted Arbitration, in one way, to curb the widening cartel of arbitrations and to deliver justice to the masses in an affordable way as arbitration has in these days an expensive affair. In contrary, the Director of the AIAC spoke at length on the roles that the centre has paved to speed up the arbitral process such as document only arbitration, Islamic arbitration, fast track arbitration and the sort at affordable costs and categorically denied the cartel role of the AIAC as reflected in the Appeal Court decision of Leap Modulation, citing contempt of court to anyone who would dare to cite such archaic decision that was soon to be expunged in the Federal Court. Further discussions centralized on the 3rd Party Funding TPF in arbitration that has taken root in other arbitral jurisdictions liked in Singapore and Hong Kong and may see the light in Malaysia in the near future. The forum seek to impart the mechanism of TPF: 1. TPF as a party in arbitration; 2. to the statutory disclosure of the funders; 3. funding through insurance; 4. the amendment to the legal profession to allow lawyers to be involved in such funding; 5. mitigation of such funding; 6. the funding agreement as opposed to insurance policy agreement; 7. risk in funding as in 3 times the return of investment; 8. Multi-tier due diligent processes and so forth… The objective of TPF is to allow access to the arbitral process to everyone making it financially manageable, in the rise of escalating commercial disputes in the road and belt initiatives and the opening of emerging markets where every arbitral regimes would want to have a lion shares on this. The Director of the AIAC is fast to ask if indeed such initiative liked the TPF would only opened more avenues for money launderings and what are the mechanism installed to manage such risk, the forum, was surprisingly, has very little answer to it but to cite for statutory disclosure of the funder and the source of the funding. Sharing the Hong Kong Arbitral regime’s experience, aside from the TPF, the process of mediation has taken a centre stage. Managed by the HK Mediation Council, the current Civil Justice Reform 2013 has brought about mediation as a compulsory pathway before litigation, very much liked the Court assisted Mediation and as the matter of fact, Arbitrators are allowed to be the mediator. Alongside with this mediation initiative, the special administrative region has also introduced the Apology Ordinance as to promote apology, notwithstanding rights of the party to remedy, to prevent dispute. Singapore has picked up such mediation processes in their Mediation Act 2017, allowing foreign lawyers as mediators and party’s representatives. The Singapore Government has also taken up mediation as in the recent SIDP – Singapore Infrastructure Management of Dispute Protocol allowing the setting up of Dispute Board DB as a proactive dispute avoidance initiative, comprises of the 3 neutrals of Architects, Engineers, QS and Lawyers, and sits regularly in meetings and at site, dishing out options for dispute managements. The floor however, has view such initiative as adding another layers into the ever complex route for dispute resolutions with escalating costs. In matter of the Trans-Pacific Partnership Agreement (TPPA), article 9.6 and the role of the arbitral regime post US led initiative, focused on the notion of overly biased support of trade versus the interest of the state. In any case, the state may be sued by the trading parties on matter of treatment standards that may be seen fair and equitable to the trading party but may not be the same to the state. In other words, there may be no protection to the state, unless otherwise the “umbrella clause” has been cast-in. The last order of the day, brought the question of dependency of expert witness into the centre stage where one speaker spoke with whim and fancy on the notion of “dirty” versus “clean” experts that eventually throw the pendulum off tangent. The apex of the discussion was a suggestion to eventually “hot tubbing” these experts, until an equitable decision could be narrowed down, with emphasis on the following notable conundrums; 1. “ships passing in the night”; 2. Address different question; 3. Assuming different facts; 4. Following different facts; 5. Inadequate explanations; 6. Unintelligent explanations, among others… As the closure, the discussions were centralized between tribunal appointed experts versus parties appointed experts and the needs for the conclave of experts with or without the presence of the lawyers that may risked making things even more complicated, before the expert report has been exchanged. |
DYA+CAuthorDYA+C is set up by Ar. DAVID YEK TAK WAI to undertake resolution of commercial disputes through ARBITRATION and ADJUDICATION, specializing in CONSTRUCTION PAYMENT DISPUTES. This is an educational blog. We do not guarantee, confirm nor warrant the accuracy of the information and facts stated therein. Read at your own 'risk'.
Archives
April 2024
Categories
All
|