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Singapore courts have always been in favour of parties settling their dispute through various modes of alternative or amicable resolution, such as mediation. Starting from 1 April 2022, new procedures for conducting civil cases will take effect, and amongst a key feature of the Rules of Court 2021 (“ROC21”) is to further encourage – some might even say redirect – parties to settle their disputes through other means rather than in litigation. In particular, there is a whole new Order 5 devoted to this issue, which creates a more extensive duty to attempt amicable resolution.

Amicable resolution as the first step

The claimant is now required to “make an offer of amicable resolution before commencing” the suit. This is an express step that now extends to all civil suits before the suit starts, compared to the different regimes in the different courts where sometimes, parties are required to exchange offers to settle during the course of the suit. So now the defendant has an opportunity to avoid litigation, instead of hoping that the claimant will agree to mediation partway through the proceedings, and the claimant also does not have to worry about appearing weak by offering an olive branch so soon.

Does that mean that claimants hands are tied, especially if it needs to urgently obtain court orders to protect its interests (such as a freezing order to prevent the defendant from dissipating its assets)? Arguably not – the exception of “reasonable grounds” may be wide enough to include situations which would lead the claimant to apply for such orders without notifying the other party. It remains to be seen on whether this argument may be abused by parties or counsel who wish to leverage on the state’s resources to strong-arm the other party.

Offers and rejections must be in writing

In addition, an offer of amicable resolution (“OAR”) must be in written form, and be open for at least 14 days subject to parties agreement. In turn, the rejection must also be communicated in writing. This has several important implications for parties conducting civil cases:

1. The offering party cannot use a short-lived offer to put pressure on his opponent.
2. The recipient has to take a clear position in writing, which would have cost consequences if his response is unreasonable.
3. Parties would now have a bit more time to consider their options, and also to muster or redirect their resources towards amicable resolution.

The Court’s power to compel amicable resolution

The previous judicial policy, although pro-mediation and pro-settlement, drew the line at facilitating such alternative dispute resolution methods. However under the new ROC2021, the court now has the power to order parties to attempt an amicable resolution process. Even if a party continues to refuse, the court has the power to order that party to submit a sealed document containing the reasons for refusal, which then can be opened at the conclusion of court proceedings to determine if the refusal at that time was a reasonable one.

Not only is this relevant in terms of legal costs, but it would also force parties to evaluate their positions and measure it against their business interests. It would also prevent parties from making afterthought submissions to justify their previous refusal, especially since the sealed document would be a contemporaneous record of the position. This would certainly deter parties or even counsel from making a cavalier refusal of any attempt to settle the dispute out of court.

Clearer cost consequences of refusing amicable resolution

At the conclusion of the trial, the court will now consider the refusal to attempt the process of amicable resolution as a relevant factor in ordering costs, since it is now listed expressly in the ROC2021.

A successful party can be penalised for not making any effort at amicable resolution, which would upset the traditional cost-benefit analysis of going to trial with a strong case. Even though such situations may be rare – for example, where the claimant is awarded only nominal damages despite having multiple heads of claim, which implies that the suit was not economically justifiable (but also raises questions of whether such cost-benefit analyses should be applied on hindsight) – the possibility remains open.

In additon, an unsuccessful party may be ordered to pay more costs for his refusal to attempt amicable resolution, even though it is not clear at the moment how this higher amount would be calculated. The possibility of higher costs should at least create a financial incentive to attempt amicable resolution.

A new landscape for mediation?

Looking at the new ROC2021, court users can now expect to be diverted out of the legal system to settle their disputes in more economically rational ways. Therefore, it is important to seek advice from counsel who are trained and experienced in mediation so as to maximise the opportunity to efficiently resolve business disputes.

Seeking advice on how to bring parties involved to mediation in order to resolve a dispute sooner? Email me or send a LinkedIn message to Boon Gan Ng.

新加坡法院一项来鼓励各方庭外解决纠纷，2022年4月1日起将实行关于庭外和解的规矩，扩大庭外和解的规范。

以庭外和解为先

起诉方在起诉之前，必须向对方提供庭外和解的建议。被告自然有机会避免审讯，不需等到起诉半途中才庭外和解，起诉方也无需担心显得弱懦。

虽然起诉方有此义务作为起诉的前提，但在紧急状况当下（例如需要获得冻结令，以防止对方消散资产）可直接开启法律程序。当然，法院很可能会尽量防范滥用此例外的起诉方。

书面的建议、拒绝信

 庭外和解建议不但必须以书面转送，也必须有至少14天的有效期（除非双方设定不同的有效期）。对方若要拒绝，也必须以书面沟通。从中可见：

1. 法院不允许起诉方缩短有效期对被告施压。
2. 被告不可无理拒绝，而法院可参考拒绝的原因，可能会惩罚无理拒绝的被告。
3. 有了至少14天的有效期，能让双方做好庭外和解的准备。

法院可命令双方尝试庭外和解

之前法院通过管理案件的方式尽量鼓励双方庭外和解，但在2021法院规矩之下，法院酱油命令双方尝试庭外和解的权力。法院也可命令拒绝和解的一方交上封密的理由信，在审讯结束后参考拒绝放是否有拒绝和解的根据，在适当的情况下令赔偿对方的法律费用。这将使双方慎重考虑尝试庭外和解，防范在无理拒绝后捏造原因。

无理拒绝庭外和解的后果

法院不但能以更高的法律费用赔偿数额惩罚无理拒绝庭外和解的被告，也能惩罚无理否决庭外和解的起诉方，即使起诉方成功地起诉被告。虽然类似状况可能是例外（例如起诉方只受到名义上的损失），但除了成功的机率，起诉方也该考虑起诉的紧急效应。可见，法院希望双方在衡量纠纷解决方案当时倾向庭外和解。

庭外和解的新天地

由于新法院程序对双方尝试庭外和解的要求有所提高、加深，各方在寻求法律咨询时应当注重律师对庭外和解的意识、经验，才能避免法院的制裁。

需要通过庭外和解或其他非对抗性方式解决纠纷？不如通过电邮或 LinkedIn 寻求咨询。

Before talking about how mediation benefits your business, lets briefly describe what mediation is.

Mediation usually means a confidential meeting between disputing parties with the assistance of a neutral third party, and this third party (who is also known as the mediator) will not be involved in later court proceedings. The mediator's job is to facilitate the meeting and help to craft the settlement agreement if parties can broadly agree on the terms. Parties can jointly choose a mediator, or let an administrative organisation like Singapore Mediation Centre choose one for them. Whatever is said in mediation cannot be disclosed to the court, so that everyone can speak freely in trying to arrive at a solution which benefits all sides.

So why am I happy to recommend mediation to my clients?

1. You pay much less than you would for bringing the suit to trial. A conservative estimate would be a difference by a factor of at least 5. Of course, this depends on the complexity of your case and the lawyers you chose to hire.
2. You spend much less time and effort on the dispute on the whole. This also means less stress of having to create a better case for trial by sorting out your documents and finding reliable witnesses, and also waiting to find out whether the judge will rule in your favour. It also frees up time and mental space for you to do what actually matters to you – including running and expanding your business.
3. You have the opportunity to create an agreement that addresses other issues and concerns, and to create an outcome which the court may not have the power to order. It is more than just compromise or meeting each other in the middle. For example, the court can't order someone to apologise to you for making defamatory remarks, but mediation gives you the opportunity to raise such concerns and find a way for the other party to recognise that your feelings have been hurt.

And of course, the next thing my clients ask me is "what about the cost?"

Usually, parties will share the cost of a private mediation session, or pay a small fixed fee (in the range of low hundreds) if the mediation is conducted in the court. The cost includes the mediator's fees, as well as rental fees for the meeting room. For private mediation, the cost is usually in the mid 4-digits for a single-day session. (Do note that lawyers charge their fees separately for preparation and attendance.)

"That sounds expensive for a one-day event!" you might say. But consider the alternative of going to trial:

1. You have to spend time with your lawyer to help him or her understand the background facts, and dig up the necessary documents, and gather your witnesses. This is going to be an extended effort because your lawyer very likely needs more information from you as your case progresses. If you are the suing party (also known as the plaintiff), then you have to prepare everything first before your claim is filed. When your claim is filed, your lawyer may have to answer to the defence and a possible counterclaim. This process can take at least 3 months, depending on the complexity of your case.
2. It is then time to exchange relevant documents. If one party wants more documents to be disclosed, then the lawyers may have to argue for and against such disclosure in court. This discovery process can take another 3 months or more, and the cost highly depends on how hotly contested the relevance of the documents are.
3. Your witnesses then need to submit written and sworn statements (unlike television shows, the Singaporean court system is all about the paperwork). Another 2 months or so passes by while you pay your lawyer again.
4. Finally it is time to come to trial! But let the judge check his calendar first, since other suits have come before yours and queuing up is a necessity. If you're lucky, you may get your trial within 6 months. And the cost of the trial is going to be directly proportionate to the number of days it will take.

So if you are lucky enough to have efficient lawyers who know their work and can give you upfront fixed fees, you might finally get to trial about 18 months later, after paying anywhere from the mid 5-digits to the low 6-digits over time (instead of receiving a huge invoice after all that work is done).

Therefore we encourage clients to seriously consider mediation and to spend substantial time to prepare to negotiate at mediation, because we think it better serves the economic interests of a business (as well as its other stakeholders, such as its managers and employees) compared to going for trial in the majority of cases.

If you need help preparing and strategising before a mediation session, contact me via email ([email protected]) or send a LinkedIn message to Boon Gan Ng.

庭外和解会议通常依赖中立的和解员协助双方与律师达成化解纠纷的协议。和解员可由双方或和解中心指定，更加保定和解员的中立性。此会议的内容将严格保密，好让大家都能放心地谈判。如果双方能达成共识，和解员可以提供草稿协议条例、细节的意见。

在一般情况，我会推荐当事人尝试和解，即使胜算不错。

1. 如果纠纷能以和解终止，当事人的法律费用当然比较少，甚至比上庭审讯少5倍。纠纷越复杂，聘请的律师越多，上庭的费用自然往上涨。
2. 能在一天之内化解纠纷，当然胜于花最少1年的时间准备文件，等待法官的判定。同时，当事人也能减轻精神上的压力，把精力集中于经营或扩张生意。
3. 法官的裁定权有限，能下判的结果不一定能满足当事人根深蒂固的需求，例如在毁谤纠纷，法庭是无法强制被告向原告道歉。和解程序的优点就在于灵活性和宽阔性，协议的条例不限制于法律所设定的结果。

心的费用。虽然一天和解会议的总共费用是4位数的数目，但和起诉、审讯的费用比起来简直是小巫见大巫：

1. 准备起诉的工作，不仅须要向当事人了解纠纷的来龙去脉，还须要参考文件，与证人进行面试。如果当事人是原告，那么必须承担更多的准备工作，以防起诉过后才发现方案的破绽。作为被告，就必须谨慎地考虑反驳、反告的可能性、可实施性。这第一阶段的工作通常会持续至少3月。
2. 双方表明立场之后，再交换有关文件。如果文件不完整、不充实，对方可向法庭申请文件透露令。在纠纷复杂、文件泛滥的情况下，这阶段可能耗上超过1年的时间。
3. 新加坡诉讼程序要求所有证人递交宣誓书，再上庭让对方律师拷问。律师不仅需要准备宣誓书，还须让证人做好被拷问的心理准备。这阶段又须要1或2月。
4. 律师完成了准备工作，还需要法官安排审讯的日期。虽然新加坡法院效率较高，但法院资源有限，加上审讯可能需要好几天，甚至好几个星期，审讯很可能是最少半年过后才能进行。

总共算起，起诉到审讯须要至少18月，花费很容易达到5位数，甚至6位数。相比之下，和解更省时省事。以当事人的经济利益为先的律师，自然会鼓励当事人慎重考虑参与和解会议。

参加和解会议之前，须要和解咨询、策略服务的网友们，不妨通过电邮 ([email protected]) 或 LinkedIn (Boon Gan Ng)询问。

At some point we all encounter someone who refuses to pay up, even after you cajole, annoy or threaten them. You're at your wits end, and you're ready to fire the nuclear salvo of bringing the debtor into court. But just before you press the button, you want to fire one last warning shot by issuing a letter of demand, complete with a law firm's letter head to scare the living daylights out of the other party.

Unfortunately letters of demand do not have the same impact as most people would expect. There are some situations where sending a letter of demand will not produce any substantive result:

1. Some people ask me if letters of demand have any "legal effect". The truth is that it has very little bearing on how the case proceeds, unless the other party flips and flops on his position. Yes, getting the debtor into this situation will help paint him as an unreliable character. But even then you would not be able to leverage on this lack of reliability until trial, because the court does not want to make a premature judgment.
2. If the other party is used to getting letters of demand, there is not much shock and awe value in a law firm's letterhead. Of course, certain firms have a certain reputation for aggression, but you have to be prepared to follow up with proceedings if you are ignored, or it just creates a situation where you cried wolf and your later actions are not going to have any effect.
3. If the other party is simply insolvent, how can you scare more money out of him?

So sometimes I might even advise a client to skip straight to starting court proceedings, especially when time is running and there is a chance that the debtor will skip town.

Having said that, letters of demand are good for certain things:

1. Confirming that the other side can indeed be contacted at the address: very important if you need to sue him later, since you have to serve court documents on him personally. (Though different considerations would apply if you thought he might abscond!)

2. Knowing whether the other side will be fighting (represented or otherwise): if a strong response comes back, that gives you a good gauge of whether you have to spend more time and money to fight the other side in order ot get what you want. Some clients may take the view that the other side has a weak case, but that is not enough to immediately get judgment. However, that would be useful in settlement discussions, especially if there is a mediator to provide a reality check.

3. Knowing what the other side's position will likely be: the response to the letter of demand gives us lawyers some material to figure out what issues to avoid and what documents or evidence we want to rely on, if we have to fight all the way. This may help with generating time and cost estimates of having to push the case to trial for both sides, and presenting mediation as a less costly alternative.

In all, letters of demand are not necessary, nor are they sufficient. They are only one of the options available when a dispute occurs, and like any method, they must be judged by the desired outcome.

Considering sending a letter of demand? Send your questions and concerns to [email protected] or LinkedIn Message to Boon Gan Ng.

当无论你如何催促、威胁，对方迟迟不肯付款时，在觉得无可奈何的情况下，你会考虑起诉他。但踏上这一步之前，为了避免付出昂贵的律师费，当事人通常会要求律师楼先发出一封要求信，向对方示威。

但是，律师要求信并不一定有恫吓的效应，反而多此一举：

1. 严格来说，要求信很少会直接影响法院审讯的过程或结果。即使一方想依赖对方对要求信和诉讼书的回复不一致，而让对方显得不可靠，也必须等到上庭审讯才能向法官投诉。法官也通常会避免提早做出这类的判定，于是不建议为了抹黑对方而尝试用要求信设下圈套。
2. 如果对方不是首次与律师解除，要求信未必会有恫吓的效果。当人，某些律师楼享有的专业名誉不可否定，但很少人会马上被律师信打垮，最终还是需要当事人决定开始起诉。如果向对方做出起诉的威胁但过后缺乏实际的行动，只会让对方看轻，负面影响当事人的尊严。
3. 石头逼不出水，口袋空的人自然付不了钱。如果对方确实缺钱，律师信不会有什么实际的影响。

所以，在适当的情况，不如直接起诉，例如在本地无归宿，有可能逃之夭夭的债务人。

但是，要求信毕竟还有适当的用处：

1. 确定对方的地址，保证起诉时能把法庭文件转送给他。但如果对方有可能逃之夭夭，就必须避免打草惊蛇。

2. 对方的回复会显示他是否有律师代表，或打算反抗。这意味着起诉将会耗费时间、金钱。无论你认为对方的立场不踏实或毫无胜算，不代表能提早得到判书，只能在庭外和解时依赖这因素打算盘。

3. 对方的回复也多少会透露对方的立场，律师就能提前了解纠纷的关键所在，准备相关文件、证人。了解准备工作的范围之后，才能提供准确的预算，同时鼓励对方以庭外和解的方式解决纠纷。

总而言之，要求信不是万能之物，也万万不能轻易发出。要求信的适当性必须以当事人的目的衡量。

出要求信？若有疑问，不妨同过电邮（[email protected]）或LinkedIn （Boon Gan Ng）联系我。

The default assumption when a business dispute occurs is that if parties cannot resolve their differences through private negotiations, the matter will eventually go to court. Some, especially from countries with a strong legal culture like the UK, will ask if there is a point including an alternative dispute resolution clause ("ADR clause") in their contracts when the litigation process is tried and tested. Of course, business owners are free to insist on their strict legal rights, but there are other reasons to consider when you have a business dispute in your hands:

Time

For some, the only experience they have of court is through popular media, which inflates the dramatic aspects of litigation and downplays the amount of time required to prepare a dispute of trial. It's more than simply putting the relevant witnesses and documents before the judge - there are at least 4 stages to litigation in Singapore, and each of them can easily take 3 months. The best case scenario is that the judge will hear your case in 18 months because he or she has other cases waiting in line before you.

So ask yourself - could you do better than wait at least 18 months (or in my personal experience - up to 7 years) for a final outcome?

What if you could

1. Get parties into mediation within 60 days of the dispute occuring?
2. Get your case heard before a private tribunal without having to be placed on the judicial calendar?

These are just some of the possibilities if you could bind each other to an alternative mode of dispute resolution before the dispute happens, at a time when the stakes are lower and parties (and lawyers) are unlike to make decisions calculated to tilt the playing field in their favour.

Cost

Litigation is expensive. There is no way to deny it, because it is a result of different systemic factors:

1. Litigation is increasingly paper-based, especially at a time when remote and asynchronous (meaning parties are "heard" by way of written submissions in turn and not verbally in one session) hearings are becoming more prevalent.
2. Some lawyers still persist in charging for time spent. Multiply that with the amount of time spent preparing the matter for trial, and having to put that preparation on paper rather than being able to solely rely on oral arguments. That's how the cost starts ballooning.
3. Some clients like to use lawyers for insurance when things go south. So some lawyers do additional work to cover as many alternatives as possible to avoid accusations of professional negligence or malpractice.

However, not all forms of ADR result in immediate cost savings. Lawyers would have to consider where the risk of the dispute lies and what the potential stakes are before recommending a particular form or variation of ADR to be locked into the agreement.

Publicity

It is easy to forget that court proceedings are public because the preparation usually happens behind the closed doors of law firms and court chambers. Not everyone can withstand the glare of the public eye while being cross-examined by the opposing lawyer. More importantly, some companies might wish to avoid having to confront allegations that would be damaging to their corporate identity or reputation.

In Singapore, lending institutions keep track of litigation proceedings because they see it as a repayment risk. Sometimes, becoming a defendant on court records is enough to stifle lending, which can be a huge risk for smaller companies which depend on loaned liquidity. Therefore, being able to resolve the dispute through ADR, rather than being dragged into court, would prevent a reduction of their credit rating.

Of course, with a pro-ADR judicial policy in most levels of Singapore courts, one could hope to settle the dispute before it moves towards trial. However, it is a much safer bet to secure agreement to ADR before the dispute arises, since there aren't any direct penalties for refusing to attempt ADR in the middle of litigation. As far as I'm aware of, there is no decision where a refusal to go to mediation or arbitration, in the absence of a prior agreement, actually lead to adverse cost consequences for the refusing party even if they won. So take the opportunity to secure a more efficient way of resolving your business disputes.

Entering into a deal with a new customer or supplier, and looking to avoid being dragged into a costly lawsuit? Contact me via email ([email protected]) or LinkedIn message (Boon Gan Ng) me to find out how you can avert such a situation.

许多商家认为，商业纠纷若谈不妥，就必须上庭由法官处理，特别是倾向法制的国家（例如英国）。他们对法院与普通法系统充满信心，觉得上庭不但自然，而直接了当。有些甚至认为，合约除了指定管制法律、管辖法庭已足够，指定额外解决纠纷模式是多此一举。但是，您是否有考虑到起诉程序对生意的影响？

时间

大众同过媒体认识的法律程序，通常是个肤浅的观点。审讯之前的准备工作，可以分为3大阶段，而且每个阶段平均需要3个月完成，过了至少一年半才能把案件呈现给法官。即使能迅速地完成准备工作，还需要法官找适当的日期，所以等待的时间可能不知一年半。我本身甚至经验过长达7年的案子。

但双方可以依赖其他纠纷解决模式，避免漫长的等待：

1. 双方可同意纠纷引起的60日之内，申请庭外和解，或
2. 通过仲裁中心，委任私人仲裁团解决纠纷。

当然，在纠纷引起之前就是得到双方同意的最佳时刻。纠纷一引起，双方律师会尽量让各自的当事人占优势，而不注重如何以最短的时间解决纠纷。

费用

通过法律程序解决纠纷，费用难免昂贵。

1. 审讯之前，律师必须准备各种文件。尤其在冠状病毒繁衍的情况下，许多审讯转成书面程序，律师不得花更多时间做好文件准备工作。
2. 如果律师以时间作为费用的根据，那么准备工作越多，费用自然只有增长的趋势。
3. 律师对当事人的专业义务繁重，为了庇护自己，有些律师不得不多做点准备工作，以防当事人指责律师疏忽。

但是，不是每一种纠纷解决模式一定能降低费用，必须考虑纠纷的范围与重要性才能指定适当的模式。

公开性

让法庭审讯的纠纷最终会公开，特别是上庭时大众有权利坐在法庭里观察程序与法官、律师、证人之间的关系。作为证人，不但需要做出被拷问的心理准备，也必须能容忍陌生人对一举一动指指点点。有些大公司为了避免家丑往外扬而选择其他的纠纷解决模式，以防在公众面前伤害了商业名誉。

况且，银行会注意它们的客户是否卷入法律程序，被起诉的商家因此被视为信用风险。对时常依赖贷款持续生意的商家，法律程序威胁到生意的稳定性，所以通过其他纠纷解决模式能避免此类的金融风险。

虽然新加坡法院鼓励双方尝试其他纠纷解决模式，但先得双方提前同意还是最佳选择。况且，虽然法院指定双方不得不合理拒绝尝试其他模式，但至今还未见到任何因拒绝和解而失败的一方被法院制裁。总而言之，双方在签署合约前应当考虑如何以省钱省事的模式解决商业纠纷。

遇到新顾客或供应商，而想避免昂贵的法律程序吗？通过电邮 ([email protected]) 或 LinkedIn message (Boon Gan Ng) 咨询。

Settlement usually requires parties to compromise in the sense of moving towards the other party and away from his initial position. However it is not necessary that parties only compromise on the amount to be paid, and it is not necessary that parties must meet in the middle of their initial positions.

For example, lets say A and B want to divide an orange. The normal meeting-in-the-middle approach means that each person gets half an orange because it is "fair". But that assumes that both parties want both the skin and the pulp of the orange - what if A wanted only the peel to make marmalade, and what if B only wanted the pulp to make juice? By splitting the difference, A and B got less than what was optimal for themselves,.

In order to avoid the loss of benefit from a simple splitting approach, it is important for parties to be able to explain their motivations to each other. That's why mediation and private negotiations are more likely to produce settlements, because simple letters of offer rarely explain the underlying rationale for offering certain terms. In order to maximise your gain, you need to create the opportunity to move the conversation away from a simple sliding scale or spectrum.

Here is a case in point:

1. A client who provided warehousing services had a customer who suddenly vacated the premises without paying the bills for the last 6 months.
2. After an aborted attempt to stop the proceedings, the customer simply offered a flat figure to settle the dispute. This offer was less than a third of the amount which we had claimed on our client's behalf.
3. The client was obviously not happy, and simply instructed me to counter-offer to have the full amount paid in several instalments.
4. Surprisingly, the customer's reply was that if client was not willing to accept a lower amount, then it was not a real compromise. However, the customer was willing to pay for one particular type of service rendered.

From the exchange, I could see that instead of bargaining on the total amount, starting the discussion with the types of services that the customers would be willing to pay for would be more effective in obtaining the settlement. If the customer showed resistance towards paying for certain types of services, we could then address the specific objections.

In the end, we managed to obtain a mediated settlement for about 80% of the claimed amount (even after setting off the customer's counterclaim). Indeed, there were specific objections such as not knowing how much the client had sub-contracted and paid third parties for certain services, but being willing to pay client on a reimbursement basis, so we provided additional documents to prove client's expenses (and ironically the customer got worn out examining those documents!), which lead to the customer conceding certain categories, and offering a higher global amount on the rest. Best of all, client saved 5-digits in further legal fees to bring the dispute to trial, exceeding the 20% and costs incurred which client appeared to have given up as part of settlement.

So when someone appears to be lowballing or meeting in the middle of brackets, resist the temptation to get upset at an unbalancing attempt. Keeping the conversation going, by asking clarifying questions or making counter-offers, creates the opportunity to better understand what is up for negotiation, and a way out of the rut of splitting the price difference.

Receiving unproductive or insincere offers to settle? Contact me at [email protected] or message me on LinkedIn (Boon Gan Ng) to find out how to obtain a better settlement.

在和解的过程，双方通常必须让步，不能坚持原本的立场。但是，让步不一定限制于赔偿金的数额，也不一定要在双方立场的中间达成协议。

举个例子：甲、乙决定分割一粒橘子。如果双方以“同等”的原则而选择一人一半，双方会获得同样分量的果肉、果皮。但甲、乙两人要橘子的原因不一定相同：如果甲需要橘子皮制造果酱，而乙希望利用果肉榨汁，那么甲、乙在这一人一半的协议下无法充分地满足各自的需求。

为了避免类似的失利，双方在谈判、和解时应当透露自己的利益与推动力，才能达到满足双方的协议。简单的来信经常无法完全表达一方的思路，所以必须通过谈话了解对方，才能打破僵局。

举个亲身体验的例子：

1. 一位提供货舱服务的当事人有一位客户，不但欠了六个月费用，还突然隔夜把货舱掏空，于是起诉了客户。
2. 客户尝试终止诉讼不成功，过后建议以赔偿和解纠纷，但赔偿金不到当事人要求的三分之一。
3. 当事人自然不满意，指示我回复建议客户以分期付款的形式还清全数。
4. 客户回信，当事人应当接收较低的数目，才体现让步的精神。但是，客户愿意完全付清一项的服务费。

这样来回，显示与其以总数目讨价还价，不如以服务的分类与个别价格作为和解的启发点。如果客户对某些分类发出异见，当事人就可以针对该事项进行商谈。

最终，双方和解协议造成客户赔偿当事人所要求的百分之八十左右，尽管客户对当事人讨其他方面的赔偿。在和解过程当中，客户要求当事人透露哪些事项经过承包，当事人的承包费多少，作为赔偿的根据。料不到，当当事人提供有关证据时，客户拒绝仔细过目，并提高赔偿数目。虽然当事人牺牲了一部分的收据，但省了五位数的法律费用，也迅速地解决此纠纷。

当对方的建议显得缺乏诚信，不用生气，以免中对方的套圈。如果能保持耐心，掘出对方愿意商谈的事项，就能逃出中点分割的结局。

无法通过来信解决纠纷？不如以电邮（[email protected]）或 LinkedIn (Boon Gan Ng) 联系我，寻求有效的和解方案。

The world has been globalised for a very long time, and at some point businesses can expect to cross borders. In the course of negotiations, businesses may find that they cannot agree which court will have jurisdiction over any dispute between them for a variety of reasons - for example, one side may have little knowledge of or confidence in the legal system of the proposed court. One common solution proposed is to have any disputes be resolved by arbitration, but does it suit you?

Arbitration is essentially private court proceedings, with parties' consent as the fundamental basis. That means parties are free to choose the seat of the arbitration, the substantive and procedural law, the language of the arbitrator and even who the arbitrator will be. Many Commonwealth jurisdictions such as Singapore have a fairly arbitration-friendly policy, where the court will be slow to declare an arbitration clause in a contract invalid just because it had some defects or pointed to a non-existent arbitration institution, so parties can have confidence that the other side will not be allowed to back out of arbitration easily.

Many large and listed companies also prefer arbitration because the proceedings are confidential. Unlike a court trial which is usually open to the public and the media, arbitration proceedings usually have to be kept behind closed doors, and this provides the added benefit of managing public perception, by preventing one side from airing dirty laundry in public or allowing third parties to witness the proceedings.

Further, countries which are party to New York Convention usually have limits on appealing against the arbitrator's award. This allows parties to be sure that the arbitrator's decision will likely be final, unless there were some fundamental errors such as failing to hear both sides, and prevents a disgruntled party from attempting a second bite at the cherry by going to court.

Despite these features, there are 2 areas where arbitration may be undesirable:

I. Cost

Arbitration tends to be costly because on top of the professional fees payable to your lawyers, you would need to pay the institution to administer the arbitration, as well as the arbitrator as well. Some institutions charge a percentage of your claim, and if the other party mounts a counterclaim, that increases the administration fees as well. If you pick an arbitrator for his knowledge and experience in a highly technical field, that naturally leads to a higher fee. So the ability to tailor the proceedings to suit your preferences will come at a higher cost.

A common procedural principle is that the losing party will pay the legal costs of the winning party. Courts usually have greater control on cost recovery, but in arbitration the losing party will usually pay a much higher sum in legal costs for the same amount in dispute, at least by a factor of 3. This makes arbitration risky, especially for disputes which are not clear-cut.

On top of that, while litigation and arbitration proceedings require similar types of preparatory work before the tribunal hears the matter, in arbitration the initial stages of pleadings (the parties' factual positions) and discovery (the disclosure of documents relevant to either party's factual positions) tend to be compressed into a single stage. That means that the lawyers are asked to do the same work in a shorter period of time, and naturally they will seek higher compensation, especially in cases where the documents are voluminous.

II. Adversarial nature

Since arbitration is largely litigation made private, it retains the adversarial nature of litigation. Both sides have to make their positions clear, are allowed to compel each other for disclosure of documents relevant to their own case and have the opportunity to question and discredit the other party's witnesses. In such proceedings, one can expect the relationship to sour, if it is not already stale.

One way to mitigate the problem is to also include a mediation or arb-med-arb clause in the agreement to allow for parties to take a step back at agreed junctures to attempt an amicable resolution through mediation. This will soften the tone of the dispute, and also give both sides an opportunity to assess whether they are better off settling the dispute before it goes for hearing before the tribunal.

It is important to know what contractual commitments you have gotten into, before you sign it. Arbitration can be a huge commitment and requires a careful consideration of the time, cost and relationship with the other party. One man's meat is another man's poison, so be careful that arbitration does not compromise your business interests.

Considering inserting an arbitration clause into your contract but have reservations? Contact me via email ([email protected]) or LinkedIn (Boon Gan Ng) to get some help.

在商业界全球化的过程当中，双方会碰到纠纷管辖权的问题。无论对某个法律系统不熟悉，或步信任某国家的法院，会使双方无法同意纠纷解决的地点。一个常见的方案就是以仲裁作为纠纷解决方式，但必须考虑各方的需求、状况。

仲裁简单说就是私人诉讼程序，以双方许可作为基本原则，双方能通过合约定下仲裁地、管制法律、程序规则，甚至能委任仲裁员。许多联邦国家，例如新加坡，已立下维护仲裁的法律，法院也不会轻易判仲裁条例因某些细节不妥（例如双方指定不存在的仲裁团体）而仲裁条例无效。这样，双方都能保证对方不能轻易推出或拒绝仲裁程序。

许多大型、上市公司为了保密而选择仲裁。与公开的法院程序、审讯相比，仲裁的程序必须严格保密，这能避免家丑往外杨，阻止任何一方把纠纷的细节透露给大众或媒体。同时，签署纽约公约的国家会有限制上诉仲裁判书的法律。除非仲裁员触犯了基本原则（例如不周全地考虑一方的证据），纠纷将最终以仲裁解决。

虽然仲裁的利益不少，但有些方面可能对一方不利：

I. 费用

虽然仲裁能比较迅速地解决纠纷，但总共的费用会比较昂贵。不仅是律师费，双方还必须共同承担仲裁团体的行政费用，也必须支付仲裁员的专业费用。有些仲裁团体以双方的赔偿数目作为根据而收费，而且对方的反告赔偿数目也另外算。要挑选专科仲裁员，就必须交更多的仲裁员费用，所以仲裁的费用多数根据双方的要求。

通常，失败的一方必须赔偿胜方一部分的法律费用。法院对费用赔偿会有比较严格的限制，一方律师刺激当事人立刻诉讼，但仲裁并没有类似的限制，造成仲裁的费用赔偿比普通费用非常高达至少3倍。如果纠纷持久，对双方造成更大的金融风险。

虽然诉讼与仲裁的准备阶段相似，但仲裁的准备工作阶段比较紧缩。在审讯初期，双方必须提出立场，过后交换有关文件。在诉讼程序，这两项工作分为两个阶段，但在仲裁程序里，这两阶段二合为一，因此律师必须在同个期间完成更多准备工作，自然会提高费用。

II. 对抗性关系

仲裁既然类似诉讼，也保持了诉讼的对抗性。双方不但必须澄清立场，也能逼对方透露对自己有利的文件，也有机会拷问对方的证人。如果双方的关系还未破裂，仲裁有可能使关系迅速恶化。为了防止关系恶化，有些合约会包括庭外和解条例，提供纠纷暂停的机会。在双方尝试商谈、和解时，同时能重新考虑仲裁是否是维护利益的最佳选择。

签署合约之前， 必须彻底了解其中的权力、义务。仲裁虽然迅速，也允许双方特别设计，但还是牵涉到费用与关系的重要问题。仲裁并不一定适合每一家企业的商业利益，所以应当慎重。

是否在起草合约而考虑加入仲裁条例？若需要咨询，不妨通过电邮([email protected]) 或 LinkedIn (Boon Gan Ng) 与我联系。

Under Singaporean law, a company is a separate legal entity from its directors or shareholders. While it is true that a company has no physical presence and depends on individuals to operate its business, it does not mean that a company's acts can ultimately be attributed to these individuals. Unfortunately, many aggrieved laypersons make the mistake of attempting to recover their losses from the directors and shareholders of the companies whom they are creditors of. They may choose to sue the company director or shareholder, rather than the company itself.

The starting point is that a shareholder is only liable for the amount he contributed to a company's share capital, in the sense that that is all he has to lose if the company eventually winds up. Creditors cannot expect to extract additional value from the shareholders without giving them something in return, such as a promise to not sue the company. Similarly, directors acting on behalf of and in the interests of the company cannot be expected to compensate third parties, even if on hindsight they had made a poor commercial decision.

However, the law does not give free reign to directors and shareholders who abuse the corporate form. There are exceptions to the doctrine of separate legal personality so that creditors may pursue their claims against the actual persons behind the company. A creditor should be prepared to answer the following questions (which are not exhaustive):

1. Was the company intended to take the place of an individual, so that the individual would not be liable for a breach of that contract?
2. Did the company's directors and shareholders treat it like a separate person from themselves?
3. Did the company carry on its own business?
4. Did the company carry on business as represented to its creditors?

Some creditors attempt to rely on other facts, such as the individual being the sole shareholder and director, or having personally spoken with the directors to create a bridge to those individuals. However, the creditors must be able to show that the individual's status or acts led to the creditors suffering the loss, rather than simply relying on a collection of facts and asking the court to draw an inference that one event led to another. Creditors who attempt to swamp directors and shareholders with a deluge of irrelevant facts run the risk of having their case struck out or failing at trial, and then having to compensate the other parties for part of their legal costs.

Creditors also frequently face the issue of not knowing what the company has done internally, and therefore has no idea what their case would be. In some situations, they might be able to rely on the court's civil procedure to obtain disclosure of relevant documents - which lawyers call discovery - and unearth documents that might support their case. However, they must be prepared to pay their lawyers first, especially in countries like Singapore where lawyers are forbidden to take contingency fees (i.e. only to be paid upon winning).

At the end of the day, the cliched phrase "it depends" applies when one wishes to pierce the corporate veil and pursue the directors or shareholders of a company. The court will, and therefore the lawyers must, look closely at the background facts before deciding that the creditor can bypass the company and reach into the pockets of its directors and shareholders. It is important to plan ahead and allocate time and money before embarking on such lawsuits.

Do you want to be able to hold directors and shareholders accountable? Email ([email protected]) or message me on LinkedIn to understand your options.

新加坡法律管辖的公司是独立的法律人士，不能与董事、股东相提并论。虽然公司没有实体，但以公司名义的行动并不能归为董事或股东。因此，要董事、股东赔偿公司债主的损失不是一件容易的事项。

在新加坡法律下，股东只有义务付出股份的价格，并不为公司的债务负担任何法律责任。公司若清盘，股东的损失限制于他付出的股份售价。债主因此不该期待股东赔偿公司的各项债务，除非债主与股东签署新的合约。同样的，董事也没有负担公司债务的法律责任。即使董事的策划最终造成公司受损，法院不允许债主以后见之明而要求董事亲自赔偿债主。

当然，滥用公司框架的董事与股东会收到法律裁制。为了突破公司框架从董事、股东索取赔偿，债主必须考虑以下问题：

1. 公司成立是否为了让个人逃避违约的后果？
2. 董事、股东是否尊重公司独立体的原则？
3. 公司是否营业自己的生意？
4. 公司营业的生意，是否符合向债主表示的一致？

有些债主仗着与董事、股东的个人关系作为起诉的根据，但债主必须证明他依赖董事、股东而受损。如果债主尝试以流水账的方式而捏造根据，他们将面对案件被撤销或审讯失败的风险，而必须赔偿对方一部分的法律费用。

当然，债主可能对公司内部的操作一无所知，无法准确地起诉董事、股东。在适当的状况下，债主可以来法律程序使公司透露有关文件，但必须准备律师费用，不能等到诉讼完毕而已结果付款。

债主要穿过公司构架而直接讨伐董事、股东，法院将仔细地先考察背景事项，律师因此也必须做好充足的准备工作。如果债主打算以诉讼的方式讨赔偿，应当提前策划，筹备资源，才能成功。

您是否要向董事、股东讨个交代？可以同过电邮 （[email protected]) 或 LinkedIn 咨询。

I have never rendered a time cost bill in my entire life. I worked on the basis of fixed fees with a defined scope of work, and I have never seen a client ask to switch to time-cost billing. Even though time cost billing is still a prevalent practice in the legal industry, none of my peers seriously defend it, and we have to acknowledge the problems that it creates for everyone involved.

The customer

1. You have no idea how much you’re going to spend in the end until you get your bill. This makes planning and budgeting for legal costs difficult, especially if you run a business with a recurring need for legal services.
2. Some law firms offer to reduce your costs by getting junior lawyers or non-lawyers to do part of the work. But you have no way of verifying who actually did the work, even if they presented their timesheets to you.
3. Do you choose someone who has a higher billing rate who might be able to get the job done faster, or a younger lawyer with a lower rate who hopefully will produce a smaller bill at the end? (But what does this have to do with the quality of service you receive?)

The firm

1. Customers will bargain with you and ask for discounts after you present the bill. You come under constant financial pressure even though you thought you gave the customer advance notice of your rates.
2. If you and the customer can’t reach a consensus on the appropriate amount to pay, you have to apply for taxation. You have to spend more resources to get what is owed to you, and even then there’s no guarantee that you’ll get everything you want.
3. Everyone has a slightly different idea of what a reasonable rate is. Even if you inform the customer of your hourly rate beforehand, you still can be accused of over-charging. Unless you are the sort who thinks any publicity is good publicity, your reputation will take a hit.

The associate

1. You are only as good as the hours which you can record as billable hours. Anything else which is not billable might be considered wasted, depending on how your firm weighs other activities such as business development.
2. To add insult to injury, you have to spend time recording the time you spent which is even less billable time spent. Granted, this activity can be alleviated by practice management software, but you rather spend time on more productive pursuits.
3. You feel pressured on both sides – the firm which has an interest in maximising profits, and the client who has an interest in a lower bill or financial certainty.

Time cost billing should go the way of the dinosaur, given how it has no relation to the value which law firms create for customers. Is our value the time we spend with or for customers?

Some people take the view that only what can be measured can be valued, but if you have an instinctive or reflexive dislike for financial uncertainty, then deep down you already know that time cost billing is not for you. Lawyers need to take a hard look at ourselves and ask if time cost billing serves everyone’s interests.

Sick of being billed by the hour for your business needs? Have a quick chat via email ([email protected]) or LinkedIn to see how we can provide a solution at a fixed cost.

我一向来以固定费用，固定工作范围提供法律服务。虽然许多律师还是以时间作为费用计算的根据，但少数的律师会公开地提倡这种计算方式。况且，我还未从当事人收到类似的要求。以时间计算费用，其实给各方造成种种问题。

当事人方面

1. 时间不断地流逝，法律费用可能成为一个无底洞。即使你要未雨绸缪，也不可能以一个流水账作为根据。
2. 时间不断地流逝，法律费用可能成为一个无底洞。即使你要未雨绸缪，也不可能以一个流水账作为根据。
3. 时间不断地流逝，法律费用可能成为一个无底洞。即使你要未雨绸缪，也不可能以一个流水账作为根据。

律师事务所方面

1. 即使当初澄清费率，当事人收到单张后，有可能企图降低费用而讨价还价。
2. 如果双方再总额方面无法达成协议，律师必须向法庭申请费用审核，就必须承担费用被降低的风险。
3. 各方对“合理的费率”不一致，对服务不满的当事人有时会职责律师事务所出天价，这可能会损伤律师事务所的名誉。

律师方面

1. 特别是年轻律师，必须维持时间记录，但不是100%的工作时间能转为费用。
2. 维持记录而花的时间，不但不能转为费用，也属于低效率的工作项目。当然，律师能利用各种软件减少花在类似行政工作的时间，但毕竟律师注重的是有效地利用工作时间
3. 作为年轻的律师，通常被律师事务所和当事人的相反利益夹在中间

最重要的是，律师对当事人的价值不一定与花费的时间有直接关系。如果当事人要求的是程序或结果方面的效率，他会注重律师所花的时间吗？。

重视财政规划的当事人自然要避免以时间计算法律费用。律师本身也必须检讨自己的商业构架，才能与当事人达成共识。

如果您要求固定的法律费用，不如通过电邮 ([email protected]) 或 LinkedIn 要求咨询。