Now in its 9th year, this year SCL’s annual conference was held on 27 August 2014 at the M Hotel. A topical field of interest and concern in the construction industry, risk management was put under scrutiny by the morning speakers. The afternoon session then dealt with the latest developments in construction law.
The conference kicked off with opening remarks by the newly elected chairman of SCL(S), Mr Darren Benger. The morning session that followed, with the diversity of professions and experiences of the speakers, kept the participants exposed to the identification of risks and approaches of risk management in dealing with construction projects.
Speaking on the topic of “Transferring Risk – Current Challenges Facing the Construction Industry and Mitigating Risks in Projects”, Mr Stephen Cheong (Associate Director, Stamford Law Corporation) provided a legal insight from the aspect of insurance, as insurance plays a significant role in the management of construction risks. He discussed the key features and coverage of the Contractor’s All Risk (“CAR”) policy. The audience’s attention was particularly drawn to the operation of exclusion clauses and the issues to be considered when allocating risks and procuring a policy.
Mr Choy Wing Kwong (Regional Director, Construction-Asia JLT Specialty Pte Ltd) followed thereafter with a macro perspective of the limitations of the insurance market both locally and in the region and also areas of risk which are uninsurable and/or rarely covered on projects. Mr Choy’s rapid fire delivery was concise and well-delivered.
Mr Cheang Kok Kheong (CEO, Frasers Centrepoint Limited) and Mr Stephen Wong (Managing Director, Davis Langdon KPK) covered the topic of “Construction – A Risky Business?” speaking from the perspective of the developer and the quantity surveryor. Kok Kheong emphasised the importance of instilling a construction safety and health culture within an organisation which can be addressed at 3 levels; planning (design for safety), programme (process safety) and people (personal safety). Mr Cheang provided a realistic down to earth insight with his presentation amplified by many case examples. Stephen, on the other hand, whisked the audience through a systematic risk process involving risk identification, ownership of such risks and the ingredients of an effective risk management strategy. The templates provided in his slides were particularly valuable.
The last speaker of the morning session, Mr Vip Vyas (Managing Director, Alchimie Asia Ltd) provided the audience with not only a refreshing integrated and collaborative approach but also an entertainingly insightful take on managing risks on large and complex projects. Vip drew our attention through his humorous videos while laughter filled across the room.
The morning session concluded with a panel discussion comprising all speakers from the morning session, chaired by Darren. There was a lively discussion with practical answers to several concerns.
The afternoon session was moderated by Mr Paul Sandosham (Partner, Clifford Chance Asia). Mr Ho Chien Mien (Partner, Allen & Gledhill) commenced by reviewing recent decisions on the Security of Payment Act (“SOP”). The courts in these cases had to consider whether an adjudication response filed after 4.30pm on the last day of the seven-day allowed period should be treated as being filed out of time; the the issue of validity of a payment claim which was not supported by a quantity surveyor’s valuation under the SIA form of contract was considered and whether the termination provisions pursuant to clause 32(8)(a) of the SIA conditions is ultra vires the SOP Act; and whether the baseline for dispute settlement period should commence from the actual making of a payment response. He also covered the decision of CRW Joint Operation v PT Perusahaan Gas Negara involving the FIDIC Red Book. The Singapore Court of Appeal dismissed CRW’s application on the basis that the arbitral tribunal had exceeded their jurisdiction and breached the rules of natural justice by failing to review the merits of PGN’s defence and the Dispute Adjudication Board’s (“DAB”) decision.
Mr Richard Wilmot-Smith, a visiting Queens Counsel from 39 Essex Street from UK, led the delegates through issues relating to non-compliance with court timetables, measure of loss from defective works and the costs of non-compliance with court timetables. The paper centred on two major areas; procedural non-compliance with court timetables and orders and substantive non-compliance with contractual obligations in construction cases. The authorities in Mitchell v News Group Newspapers Ltd and Denton & Ors v TH White Ltd & Ors were evaluated and guidance given by the courts arising from these decisions was discussed. Mr Smith went on with his analysis of the decisions in Pearce & High Ltd v Baxter, Woodlands Oak Ltd v Conwell and Mul v Hutton Construction Ltd. The question of employer’s recourse to damages when the contractor had not been given an opportunity to remedy the defects, was also deliberated.
The last session of the day was on the topic of “Regulating Standard of Commercial Behaviour through Endeavour Clauses and Their Application and Potential Application in Construction Contracts – lessons from the Court of Appeal in KS Energy v BR Energy”. The decision of KS Energy v BR Energy was examined and aptly dealt with by Dr Philip Chan (Associate Professor, National University of Singapore). Noting that “all reasonable endeavours” obligation and “best endeavours” obligation are given equal standing, he went on to consider situations where endeavour clauses are applicable and principles as set out by the court for determining whether an endeavours obligation has been fulfilled.
Mr Alex Wong, Vice Chairman of SCL(S) made the conference closing remarks and expressed his thanks to all speakers. The conference was an overwhelming success, well-attended by delegates representing a wide cross-section of the construction industry. The conference concluded well into an evening of networking cocktails.
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