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Practical Issues in Contract Law: Barriers to Cross-Border Business in Asia

ABLI and the Singapore Academy of Law held an event on Practical Issues in Contract Law: Barriers to Cross-Border Business in Asia on Tuesday, 14 March 2017.

The global financial crisis in 2008 and the Asian-led recovery has highlighted the importance of Asia to world economic growth. One of the major factors behind Asia’s rise—in this “the Asian Century”—has been Asia’s investment in infrastructure, particularly cross-border infrastructure investment.

In this climate, issues regarding the interpretation and enforceability of contracts in the region become pertinent. This is particularly so given the diversity of Asia’s legal environment—a region with diverse legal traditions (civil law, common law and mixed) and differing approaches to commercial issues.

The Asian Business Law Institute (ABLI) is thus examining issues which arise in commercial contracts in the Asian engineering and construction industries and the extent to which those issues present barriers to cross-border business in Asia.

During this event, Sir Bernard Rix gave a lecture on the interpretation of contracts under civil and common law. Sir Bernard’s lecture was followed by a panel discussion in which experts in the field discussed potential pitfalls when contracting in Asia, such as liquidated damages clauses, dual language contracts and termination rights.

 

Speaker

 

Sir Bernard Rix

Former Lord Justice of Appeal, Court of Appeal of England and Wales

Bernard Rix is a recently retired Lord Justice of Appeal with twenty years’ experience in the Commercial Court and the Court of Appeal, who now accepts appointments as an arbitrator and mediator. He is a member of the HKIAC Panel of Arbitrators, a member of the MOOGAS Panel of International Arbitrators and Mediators, has been appointed to the Cayman Islands Court of Appeal, and is an ADR Group accredited mediator. In addition, he has recently been appointed as Professor of International Commercial Law at Queen Mary, University of London. 

In 1993 he was appointed to the High Court and sat predominantly in the Commercial Court of which he was a judge in charge in 1998-99. In that year he was responsible for introducing to the Commercial Court the Woolf Reforms to civil procedure law (the CPR) and for redrafting the Commercial Court's Guide and Practice Directions. In 2000 he was appointed to the Court of Appeal, from which he retired in May 2013.

At the Bar, he specialised in international commercial and arbitral disputes as a barrister and latterly as an arbitrator, and also appeared in the courts of Singapore and Hong Kong.

As a member of the Court of Appeal, he has delivered a wide range of judgments on arbitration, aviation, banking, insurance and reinsurance, private and public international law, oil and gas, the sale of goods and shipping disputes.


 

Moderator

 

Associate Professor Goh Yihan

Associate Dean (Research) at School of Law, Singapore Management University and Project Leader, Asian Business Law Institute

Goh Yihan is an Associate Professor of Law and Associate Dean (Research) at the School of Law, Singapore Management University. His research focuses primarily on the law of contract and torts, with a secondary interest in the principles of statutory interpretation and the legal process. He maintains a deep interest in the development of Singapore law in general and also in his areas of specialisation in particular. He has published numerous books, chapters, and journal articles internationally and in Singapore, which has been cited by the Singapore courts. In recognition of his invaluable contributions to the development and advancement of Singapore law, he received the Singapore Academy of Law Singapore Law Merit Award in 2013.

 

 

Panellists

 

Associate Professor Gary Bell

Director, Asian Law Institute (ASLI), National University of Singapore

Gary Bell is an Associate Professor at the Faculty of Law of the National University of Singapore and Director of the Asian Law Institute (ASLI). He obtained degrees in both the common law (LLB) and the civil law (BCL.) at McGill University in Montreal and an LLM at Columbia University in New York City. He was Editor in Chief of the McGill Law Journal, clerked for Justice Stevenson of the Supreme Court of Canada and taught at McGill University. He teaches comparative law (Indonesian Law, Comparative Legal Traditions and International and Comparative Law of Sale) as well as arbitration. He does most of his research on Indonesian law and on the United Nations Convention on Contracts for the International Sale of Goods. Gary has acted as an arbitrator, in particular in many civil law matters.

 

 

 

Ms. Kathryn Ho

Senior Managing Counsel (Downstream & Chemicals Law – Asia, Europe, Middle East & Africa) at Chevron International Pte. Ltd.

Kathryn Ho is the Senior Managing Counsel within Downstream & Chemicals Law at Chevron International Pte. Ltd. In her current role, she is responsible for the management of legal services for Chevron’s Downstream & Chemicals businesses in Asia, Europe, Middle East & Africa, which include products marketing and distribution, manufacturing, lubricants, and additives business operations. Prior to this role, she provided and supervised the legal support for Chevron’s International Products businesses in Asia, Africa, and the Middle East, while continuing to support special projects and commercial matters. Kathryn has been with Chevron for over 10 years.

Prior to joining Chevron, Kathryn practised as a solicitor in London, United Kingdom and as an advocate & solicitor in Singapore, specializing in mergers and acquisition and corporate and commercial law. Kathryn has an L.L.M. (Corporate and Commercial Law) from King’s College, University of London and an L.L.B. (Honours) from the National University of Singapore.

 

 

 

Mr. Nandakumar Ponniya

Principal, Baker & McKenzie Wong & Leow

Nandakumar (Kumar) Ponniya is a principal in the Dispute Resolution Practice Group. He is listed as a leading dispute resolution lawyer in Singapore, with Chambers Asia Pacific noting that he “stands out for his quickness and perspicacity” and has “a full and comprehensive knowledge of international arbitration and good analytical skill in dealing with cross-border commercial disputes”. Chambers Global has described him as “extremely technically proficient and commercially savvy” and he has also been listed in the Guide to the World's Leading Experts in Commercial Arbitration. Benchmark Asia Pacific has recognized him as a “leading disputes star” and “leading litigation star” in Singapore.

Kumar is a seasoned practitioner with a broad focus on dispute resolution and has particular expertise in international arbitration, commercial litigation, and corporate restructuring and insolvency. With close to 20 years of experience, Kumar has an in-depth understanding of the legal and regulatory frameworks of the major Asian markets. He is very well-regarded for work relating to the areas of oil and gas, infrastructure and construction. He also advises on investment arbitration, particularly in relation to matters in Asia.

 

 

 

Mr. Soh Lip San

Head, Construction and Projects, Rajah & Tann Singapore LLP

Lip San has significant experience resolving disputes in arbitration, litigation in court as well as other forms of alternative dispute resolution. He has been involved in disputes governed by Singapore law as well as various systems of law (whether under common law or civil code). He is a Fellow of the Singapore Institute of Arbitrators and is an accredited adjudicator. Lip San’s practice has been consistently ranked Tier 1 and he has been recognised as a leading construction lawyer in Chambers as well as The International Who's Who of Construction Lawyers.

Representative transactions include an ICC arbitration relating to a high-speed rail project, UNCITRAL arbitration for a mining project, SIAC arbitration on a gas off-take agreement as well as a dispute over an EPC contract for a power plant. Lip San is also very experienced in risk assessment and mitigation for non-contentious work in landmark projects, particularly for concession / PPP agreements.

 

 

 

Ms. Shantini Sanmuganathan

Group General Counsel, Singtel Group

Shantini is Group General Counsel for the Singtel Group, responsible for all the legal affairs of the Group. Shantini started her legal career with a three-year stint in private practice handling general commercial work and civil litigation before leaving to join the in-house legal fraternity. Her first in-house legal role was in the real estate and franchising world with ERA before moving on to join the IT industry. She was the solo lawyer charged with the setup and running of the legal affairs of Aztech Systems Ltd and was there for over 5 years, involved with IT contracts (software licensing, distribution), procurement, and set up of factories overseas and supporting the sales operations of the company globally. After that, she joined Dell Computer Systems at its Asia Pacific headquarters in Singapore and in her 12 years in Dell, was the legal lead for its various business units including global sales, manufacturing, procurement, marketing, professional services and expansion of its Asia Pacific operations. Shantini is a Member of the Singapore International Arbitration Centre Users Council, Singapore.

 


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