29 November 2018
On 23 October 2018, the Ministry of Law (“MinLaw”) launched the “Singapore Infrastructure Dispute-Management Protocol” (“Protocol”). The Protocol aims to help parties involved in mega infrastructure projects proactively manage differences and minimise the risks of time and costs overruns.
The Protocol sets out a carefully-tailored procedure for the appointment and involvement of a Dispute Board (“DB”) to assist in the effective management of differences or disputes that may arise in the context of mega construction or infrastructure projects. It is stated in the preamble to the Protocol that it is designed and recommended for construction or infrastructure projects of more than S$500 million in value.
Under the Protocol, parties will from the start of the project and depending on the complexity and needs of the project, appoint a Dispute Board (“DB”) comprising up to three neutral professionals who are experts in relevant fields such as engineering, quantity surveying and law. The DB will follow the project from start to finish and help the parties anticipate and manage any issues that may arise.
The members of the DB can be selected by agreement of the parties or failing such agreement, they may be appointed by the Authorised Appointing Body, which is defined in the Protocol to be the Singapore International Mediation Centre (“SIMC”) or Singapore Mediation Centre (“SMC”).
The Protocol contains the following features tailored to address challenges that infrastructure projects face:
- Proactive dispute resolution approach: The DB is appointed at the outset, rather than after disputes have arisen. This allows issues to be anticipated and prevents differences from escalating into a protracted and costly full-blown dispute (e.g. complex litigation).
- Greater range of dispute resolution options: The Protocol provides for a range of dispute resolution options. Disputes may be resolved by mediation with the DB members acting as mediators, by the DB rendering an opinion on the matter, or by formal determination.
- Professional and institutional support: The DBs are established under an institutional framework. Parties can access full professional and administrative support (including meeting, escrow and other administrative services) through the SIMC or the SMC.
Under the Protocol, the DB is empowered to:
- require the Parties to produce any documents or materials that the DB deems relevant in relation to the discharge of any of its functions;
- order the taking of measures for protecting trade secrets and confidential information;
- convene preparatory meetings, DB meetings, site visits and hearings;
- decide on all procedural matters arising during any meeting, site visit or hearing;
- examine the parties, their representatives and any witnesses who may be called by the parties, in any sequence or manner it determines appropriate;
- appoint one or more experts, with the agreement of the parties;
- issue any procedural direction, opinion or determination even if a party fails to comply with any provision of the Protocol or request of the DB;
- determine any application for interim or provisional relief in respect of any matters relating to the contract; and
- take any measures necessary to fulfil its function as a DB.
The Protocol does not preclude parties from making an adjudication application under the Building and Construction Industry Security of Payment Act (“SOPA”). Parties may still pursue their rights under the SOPA while concurrently initiating action or taking steps to pursue the dispute avoidance or resolution routes provided in the Protocol, subject to the provisions of the SOPA.
Parties who wish to use the Protocol may consider the standard clause set out in the Appendix to the Protocol.
The following materials are available on the MinLaw website www.mlaw.gov.sg: