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CIArb Promotional Talk
- 1. The Chartered Institute of Arbitrators East Asia Branch Young Members Group 21th March 2018 CIArb (EAB) YMG Alternative Dispute Resolution Seminar and Promotional talk for Gammon Construction Limited
- 2. Alternative Dispute Resolution Seminar Construction Adjudication by Ir Albert Yeu
- 3. Construction Adjudication CIArb celebrated its Centenary throughout 2015. Contractual vs Statutory Adjudication 3 ■Dispute Resolution Clause ■Security of Payment Legislation (SOPL)
- 4. Construction Adjudication CIArb celebrated its Centenary throughout 2015. SOPL Background 4 ■Other jurisdiction UK(1996), New Zealand(2002), Singapore(2004), Malaysia(2012), Australia(2002,2004,2009), Ireland(2013)... ■Hong Kong(2018??) ■2011 detailed industry wide survey ■2012 survey on payment practice in the industry ■June 2015 consultation document ■April 2016 report on public consultation ■LegCo
- 5. Construction Adjudication CIArb celebrated its Centenary throughout 2015. Features 5 ■Fast, less expensive ■Temporarily binding ■Defined jurisdiction ■Independence and impartiality ■Enforcement ■Document-only proceedings ■Pay-when-paid provision ■Statutory right of suspension
- 6. Construction Adjudication CIArb celebrated its Centenary throughout 2015. Procedure 6 ■Payment Claim and Payment Response ■Notification of Adjudication ■Appointment of Adjudicator ■Adjudication Claim and Adjudication Response ■Oral Hearing ■Adjudication Decision ■Challenge
- 7. Construction Adjudication CIArb celebrated its Centenary throughout 2015. Recent Case 7 ■Bauer (Malaysia) Sdn Bhd (Appellant) v Jack-In Pile (M) Sdn Bhd(Respondent) (2017, Court of Appeal Malaysia) ■Contract – Supply and installation of Spun Piles ■Appellant – main contractor, Respondent – Sub-contractor ■2012 – Employer wound up ■2013 – Appellant lodged its proof of debt with the liquidator of Employer ■August 2016 – Respondent commenced adjudication
- 8. Construction Adjudication CIArb celebrated its Centenary throughout 2015. 8 Pay when paid clause “Progress Payment All payments shall be made within 7 days from the date the Specialist Contractor received their related progress payment and subjected to 5% retention…”
- 9. Construction Adjudication CIArb celebrated its Centenary throughout 2015. 9 Security of Payment Legislation (Malaysia) “Prohibition of Conditional Payment 1) Any conditional payment provision in a construction contract in relation to payment under the construction contract is void. 2) … it is a conditional payment provision when: a) The obligation of one party to make payment is conditional upon that party having received payment from a third party; or b) The obligation of one party to make payment is conditional upon the availability of funds of drawdown of financing facilities of that party.”
- 10. Construction Adjudication CIArb celebrated its Centenary throughout 2015. 10 Question Can main contractor rely on the pay when paid clause and refuse payment to sub-contractor? Issue Applicability of SOPL to construction contract existed prior to the enactment of the SOPL in 2014 Adjudicator Pay when paid clause is void, right of progress payment kicks in, i.e. retrospective effect.
- 11. Construction Adjudication CIArb celebrated its Centenary throughout 2015. 11 High Court 1. “… has retrospective effect, unless there is clear contrary intention in the statue itself…” 2. “[The statue] which provides adjudication as an alternative forum for payment dispute resolution as opposed to resorting to the court and arbitration, a liberal and purposive interpretation must be adopted in relation to [the statue].” 3. “… the choice of an additional forum of resolution should surely be offered to all unless there is clear provision that it is not.”
- 12. Construction Adjudication CIArb celebrated its Centenary throughout 2015. 12 Court of Appeal 1. “… a retrospective operation is not to be given to a statue so as to impair an existing right or obligation… unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.” – Maxwell’s Interpretation of Statues, 12th Edition 2. “Unless there are clear words in the legislation to the contrary, any legislation affecting substantive rights must be given a prospective effect. Similarly, if the legislation is procedural in nature, that legislation must be given a retrospective effect unless clear words in the same show to the contrary.” – NS Bindra’s Interpretation of Statute, 8th Edition
- 13. Construction Adjudication CIArb celebrated its Centenary throughout 2015. Tips for contractor 13 ■Select the techno-legal adjudicator ■Realize the requirements of payment response ■Retrospective effect on existing construction contracts?