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Make your mediation clause enforceable

Singapore’s dispute resolution policy increasingly favours alternative methods like mediation, and the best way to ensure that parties go to mediation is to have a mediation clause. However there are occasions where bespoke mediation clauses backfire and lead to wasted time and cost because there is room for argument on whether parties are bound to refer the dispute to a particular forum.

I recently had to apply for a court order to compel a main contractor to attend mediation based on the mediation clause in their contract. (Yes, I’m aware of the irony.) We could have avoided this distraction if the clause was more clearly drafted (unless the main contractor was actually hell-bent on not going to mediation – which begs the question of the purpose of the mediation clause). I’ve listed 3 main takeaways from this experience:

1. Use the word “shall”

This one should be a no-brainer for most lawyers. In my case the court found that even though there were other parts of the mediation clause which did not have the word “shall”, the phrase “shall refer” was sufficient to create a contractual obligation.

The fact that mediation does not necessarily lead to settlement didn’t prevent the court from enforcing an obligation to attend mediation and attempt settlement. Although the main contractor had some quibble about whether mediation would lead to a substantive outcome, the judicial policy clearly favoured parties trying it before coming back to push the dispute towards trial. Regardless of a party’s faith in the efficacy of mediation, the court will order that party to attend mediation once the contract clearly sets out that both sides must refer the dispute to mediation.

2. Set out a clear sequence of events

In this case, there was an issue of when mediation could begin, because there was an identical arbitration clause with the same phrase “shall refer”, but the mediation clause contained a qualifier that parties didn’t have to attempt mediation before commencing arbitration. The court accepted that since arbitration had already started, there was no obstacle to ordering the main contractor to attend mediation.

However we could have avoided this set of proceedings if the contract had instead set out clearly the sequence of arbitration or mediation, instead of creating an ambiguity of when mediation had to take place. An arb-med-arb clause clearly inserting a mediation session at a defined midpoint in the arbitration proceedings would make it clear to all parties that not only was mediation a must, but it also would take place at a particular point.

3. Refer to a clear set of mediation rules

I had to be careful in crafting the scope of the application, as I had to list the exact sequence of acts that the main contractor had to do to move the matter towards mediation. Fortunately the clause referred to the Singapore Mediation Centre Rules, so it was a matter of accurately copying the sequence of events set out in those rules. As a result, the court did not have to question the list of acts that we sought in the order.

Mediation usually requires many preparatory steps, such as filling out forms, making payments and submitting documents for the mediators’ use. Picking an institution with clearly defined procedures can help prevent the mediation from stalling, by clearly identifying the acts required to be done. In contrast, because the arbitration clause in this contract did not have such reference to rules, we had to settle for an ad hoc arbitration which gave rise to a host of issues (but not the subject of this article anyway).

While institutions have model clauses for parties to adopt and insert into their contracts, occasionally some will be driven by their specific business needs to create their own mediation clauses. aSssuming the parties or their lawyers do not intend to draft in vain, the mediation clauses should be clear and specific so that there is no question of when and how parties intend to mediate, so that there is no risk of a collateral dispute.

If you would like to ensure that your mediation clause is enforceable, contact me at [email protected] or message me on LinkedIn.

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Ways to overcome the refusal to mediate Ways to overcome the refusal to mediate

Even though mediation and other forms of amicable dispute resolution have become fixtures in the Singapore legal landscape, it is still fairly common to find either parties or counsel who resist any attempt to move the dispute to a non-adversarial forum. Short of relying on a contractual clause which mandates that parties must attempt to mediate, or relying on the new Rules of Court which requires parties to not unreasonably refuse amicable resolution, counsel still need to overcome the various objections which parties put up as a signal of their refusal to mediate.

The most straightforward way to get parties to come to mediation is to show them that litigation is at least not a better, if not a worse, alternative. The economic reasons are usually quite clear:

1. A successful mediation saves time by resolving the dispute before it goes all the way to trial. If done within the first few months, it could create time savings measured in years. Even if it does not work out, it arguably does not create substantial delay in the long run if parties are willing to clear their calendar for a single day session.

2. It is usually cheaper to resolve a dispute at mediation, though some parties may see it as an additional burden on their war chest. Parties who resist paying for a mediation session are unlikely to have the means to fund litigation to its very end. In any case, there are several options for mediation with different pricing tiers suited to a large range of cases.

However, it is difficult to convince opposing counsel that litigation is a worse alternative by alluding the uncertainty of success, and understandably so.

3. No lawyer will easily admit the weaknesses in their client’s case, especially when their client is looking on. Some parties and counsel may also carry the cultural baggage of perceiving compromise as weakness – although with the new Rules of Court compelling pre-action amicable resolution, such a view should become less common.

4. Similarly, no lawyer will easily admit that they are not prepared to go to trial. On the other hand, it is difficult to predict how the trial judge would perceive a party’s case, and in an increasingly inquisitorial system where the identity of the judge is not known in advance, parties have to recognise that going to trial is taking a risk that the trial judge is prepared to wrest conduct of the case away from counsel. Identifying this factor as being out of anyone’s control makes it more palatable for consideration.

These topics are usually best discussed by the mediator as the person providing a reality check to parties involved, and who being in a neutral and more authoritative position, will get the parties’ attention rather than the opposing counsel. (Relying on judicial comments in pre-trial conferences to move parties towards mediation is risky, as the comments may be adverse to one party, and counsel may not convey in the same tenor.) Of course, this creates a chicken-and-egg problem – how else can parties be incentivised to appear before the mediator to hear and consider such issues?

5. If a party wants certain outcomes which exceed the scope of acceptable legal principles or the court’s powers, then it should be prepared to work towards amicable resolution. For example, damages or monetary compensation would be the usual remedy for a breach of contract, but parties can agree to rectify the defects or make up the shortfall in service standards instead. Instead of the next best thing the trial judge can award, the party can attempt to steer the mediation to their most desired direction.

6. Mediation provides a safe space for direct communication with the other party. Although parties can always choose to meet on a without-prejudice basis, the mediator is in the best position to exert a calming and moderating influence, since it is difficult to expect counsel to play a neutral role and fulfill their duties to parties at the same time.

Although it ought to be easier now to bring parties to the mediating table, lawyers still need to persuade not just opposing parties, but also their own clients that mediation can deliver positive outcomes for them. The effort in bringing others around to be a willing party to mediation can be a mini-negotiation in itself, and getting to the root cause will help to open the door to an amicable resolution.

Need help to get the other party to go for mediation? Email me or drop me a LinkedIn message.



1. 如果能防止诉讼达到法官审讯的阶段,可省时间。审讯可能需要好几年的准备工作,但庭外和解始终能在几个月内完成。 即使庭外和解不成功,也不会造成诉讼长期拖延。

2. 当然,庭外和解能省下好几倍的费用,而目前和解中心方面多样化。虽然短期内各方必须付出多一项费用,但无法付庭外和解费用的一方不可能付起诉讼的全程费用。


3. 律师不会轻易认同当事人的法律弱点,也不会轻易承认当事人没有上庭审讯的心理、资源准备。但是,当今的法院倾向控制形态,所以律师们不能保证诉讼以起初的庙算发展。

4. 有些思想保守的律师认为庭外和解的建议显示一方的弱势,所以不愿意提出类似的建议。但是,随着新的法律程序对非对抗性模式的注重,类似的思想应该逐渐消失。


5. 法院能审判的事项有限,但通过庭外和解,双方能达成新的协议,让各方得到所需求的结果。这不但能避免双方不受法律约束,而能让双方满意。

6. 和解会议也能提供说出心里话的安全空间,双方不需畏惧对方利用会议里谈论的事项作为诉讼的武器。有了中立的和解员,双方也能心平气和地谈判。



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The duty to attempt amicable resolution starting 1 April 2022

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.







  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。







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LinkedIn 寻求咨询。

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3 mediation tips for beginners

3 mediation tips for beginners

I attend mediation regularly with my clients. Thanks to what I've learnt from Roger Fisher and Joel Lee, and with the help of well-trained mediators (and hopefully my learned friends), I manage to reach settlement about 80% of the time (to the extent that it's adversely affecting my firm's bottom line, but that's another story for another day). However there are some things which gets my goat, despite the mediation-friendly climate and the breadth of available training and resources a lawyer (or an appointed mediator) can get if he or she is serious about finding a solution for their clients. These are the mediation tips that I often give to clients so that they can learn from my experience:

1. Stop entrenching into legal positions. We are all lawyers. We have seen each other's pleadings and maybe some of the evidence. There is no need to continuously debate about the merits of either side's case - save that for the trial judge. If you can come right out and say what your client desires, we could save a lot of time (even if it means finding out that there's no zone of possible agreement right from the get go), and start brainstorming about how to resolve the current dispute.

2. Let the client talk. I get that we get paid to advocate and argue for our client. But since your client is already here, let them share their perspective, and we might all learn something new about what motivated them to start proceedings, or whether they have other issues that they wanted to address. We could walk away with a better outcome than what a court could provide, and with less bruised egos too.

3. Consider that there is usually more than one way of resolving the problem. To be fair, this is not a huge problem, but I would like to avoid having my client triggered by the perception that the other side - or sometimes, the mediator - is trying to force a solution down their throat (and vice versa). This becomes a bigger issue when a position becomes mistaken for an underlying interest, and parties can only see one way out because of how events were framed.

Despite encountering these issues fairly regularly, I still enjoy mediation. It satisfies my desires to solve problems, it reduces billing fatigue for client and everyone can move on to doing the things they want to do instead of being stuck in court (which probably only lawyers want, and even then maybe not all of us). Though I think at some point, all lawyers or lawyer-to-be ought to go through some form of mediation advocacy training so we can do our job better, which now includes advising clients on alternative dispute resolution (and presumably taking them through the process as well).

Going to attend mediation soon and want to know more before you step into the room? Drop me a message, an email ([email protected]) or a LinkedIn Message to Boon Gan Ng.


1. 过分注重法律上的立场:在庭外和解之前,双方了解已经了解对方的立场,甚至已经交换了有关文件和其他证据。来到了庭外和解会议,以立场为起点而重复的辩论各自的立场只是在浪费时间。和解员的目的与法官不同,是协助双方达成协议,而不是分辨是非。既然已经来到了和解的阶段,那双方应该避免坚持法律上的立场,而从商业利益为出发点进行谈论。

2. 让当事人做主角:不可否认,律师的职责是维护当事人的利益,自然倾向为当事人辩解。如果您已经到场,不妨向和解员和对方直接分享看法、感受,好让各位了解为何纠纷以发展到起诉的地步。这样和解员才能协助大家揭发纠纷的根底,并开导双赢的捷径。

3. 每一个纠纷可能有许多解决的方案:虽然双方都有理想中的解决方案,但为了公平起见,应当先让各方提出建议,再讨论方案是否行得通。如果由对方律师或和解员提供建议,当事人可能觉得缺乏主宰权,产生对和解的反感。为了维持和解过程的灵活性,双方律师必须抛弃辩护的思维,把分析力集中在建议的可操作性。


已经约定了庭外和解的会议,但还是不知所措?需要咨询的网友,不妨以电邮 ([email protected]) 或微信 (+65 86208629) 联系我。

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How mediation benefits your business

How mediation benefits your business

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.



  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。


  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。


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])LinkedIn (Boon Gan Ng)询问。

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Always ask about authority in negotiation

Always ask about authority in negotiation

It is easy to make the fundamental mistake of talking with someone who actually has no authority in negotiation.

But first, some context:
  1. My client, a sub-tenant, asked me to call a representative of a landlord regarding some deposits held by the latter.
  2. Apparently, the deposits held by the landlord could be traced to my client, since the tenant had simply passed on the sub-tenancy deposit to the landlord as the deposit for the main tenancy.
  3. However, both parties had recently only discovered that the tenant had been struck off the company register. This caused a bit of trouble for the landlord's accountants as they suddenly had no entity to return the deposit to when the tenancy ended.

So with the instructions that the landlord did want to return the deposit (my guess was that it represented a liability on their balance sheet), I called a person with the title of Vice President. Sounds fairly senior enough, I thought. Should be someone who can call the shots and work together to find a solution, I thought. Should be able to resolve this issue without having to escalate it and risk souring the relationship, I thought.

I thought wrong.

I started the call (after all the necessary niceties) asking about why the landlord insisted on returning the deposit only to the tenant, despite having acknowledged that my client was the source of the money. Perhaps there was another way to resolve the matter which could protect their interests?

To my surprise, the Vice President insisted that
  1. She had been instructed by her "leader" that there was no other way (and refusing to tell me who this "leader" was),
  2. That she would not tell me who had the authority to decide otherwise, and
  3. That I would have to send a letter of demand on my client's behalf, because the landlord was "not an SME" and they had "SOPs to follow". (What a loaded statement!)

And there was no budging her from this position. So I had to hang up and inform my client that this matter needed an alternative approach.

Although the call only lasted twenty minutes or so, I could have avoided all that frustration by asking what her job as the Vice President entailed, and whether she had the authority to negotiate. Job titles are not conclusive, even in large corporations with some semblance of hierarchy. Always make sure that the other side does indeed have the authority you're looking for.

Need help establishing the other side's willingness to negotiate or mediate? Email me at [email protected], or chat with me on LinkedIn (Boon Gan Ng).





  1. 根据副总理,她的“首领”已指定以上的解决方案。当我尝试询问“首领”的身份,她坚决不透露。
  2. 追问有哪位是有决定权的代表,她也是坚决不透露。
  3. 她甚至说房东公司“不是任何小企业,有必遵守的程序”,还邀请我发出要求信。(这段话真的让我火大!)



想要确定对方是否愿意谈判或和解?不妨以电邮 ([email protected]) 或LinkedIn (Boon Gan Ng)与我联系。

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Should I send a letter of demand?

Should I send a letter of demand?

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.



  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。



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。


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

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Does your contract have a payment clause?

Does your contract have a payment clause?

Cashflow is the lifeblood of business. There is only so much borrowing that small and medium businesses can rely on before the lending dries up, or the liabilities threaten to exceed their assets. Therefore it is important that your contract has a payment clause to ensure that your customers pay you, so that you can pay your suppliers and employees to keep the business going.

Here are some typical reasons why businesses don't get paid even after they deliver an invoice:
  1. The customer disputes the quality of goods or services delivered, and therefore refuses to pay.
  2. The customer claims that the shortfall in goods or services delivered have caused loss to them, and therefore refuses to pay because the loss and damage is equal to or exceeds the amount that is still owing to the business.
  3. The customer knows that the business owners do not want to spend time and money on court proceedings, and stonewalls any demand for payment as long as they can.

Of course, these difficulties can be overcome. The bigger question is, at what cost and to what effect? Letters of demand have limited effect, and court proceedings cost time and money, as well as add to mental pressure for people who don't take well to uncertainty.

But what if you could prevent, or at least reduce the risk of, such issues from arising?

There are many ways that a contract can pre-empt such problems. The following list is by no means exhaustive!

When the customer disputes quality

This is especially difficult when the dispute arises after the goods or services were delivered and an invoice is presented for payment. Even if you could argue that such a dispute was an afterthought because the issues were not raised at the same time as the delivery of goods and services, such an argument would only be entertained at trial. That means having to wait at least 18 months before you can shut down these sort of arguments and obtain judgment against the customer.

Therefore it is important to close off, at an early stage, such disputes over quality:
  • Expressly state that all disputes must be raised and resolved in writing within a certain time, or else it will be waived by the customer. Think of it as a shortened limitation period.
  • Have a clause which makes invoices final and conclusive within a certain period of time if not disputed, which will then make the customer take your invoices seriously. But of course, you have to be prepared for the customer to closely scrutinise every invoice you deliver before paying up.

Such clauses will prevent defences of defects or subpar quality if you ever have to obtain payment through court proceedings, and shorten the entire process.

When the customer claims loss and damage

This is a widespread situation in certain industries such as construction, where the contract is only a small cog in a bigger machine and the customer claims that delay or shortfall created a domino effect of further monetary losses. The dispute becomes expensive because by launching a counterclaim in response to your claim, you now effectively have to fight two lawsuits at the same time. This also creates a disincentive to sue because the counterclaim is quickly threatened at the first sign of any demand for payment, so for smaller businesses it is an insidious tactic.

Similarly, a few clauses can close the gate to such belated counterclaims.
  • Limit the time period in which parties have to make claims. However this may not be useful in situations where the customer claims that the loss and damage occurred much later.
  • Expressly state that any claim by the customer must be made separately without deducting payment from the business. This prevents a stalemate by threat of counterclaim, and also increases the speed at which the business can obtain judgment for payment.
Reducing the cost of dispute resolution

Although the clauses mentioned above will reduce the scope of potential disputes, the contract still must be enforced so that you can rely on the coercive power of the state to obtain payment. The threat of having to pay legal costs may incentivise the customer to pay up before legal proceedings begin, but there are other things to consider, such as preserving the business relationship. So depending on the business's desired outcome, the contract may either provide for the court to have exclusive jurisdiction to railroad the dispute towards judgment, or provide for less adversarial methods such as mediation.

Experiencing difficulty collecting payments on your invoices? Ask us about a contractual framework to make collections and enforcement easier via email ([email protected]) or LinkedIn (Boon Gan Ng).


  1. 顾客投诉货色品质差或服务逊色,而拒绝付款。
  2. 顾客指责服务不周到,或货色不齐全而造成损失,而损失等与或超过发票数。
  3. 顾客仗着对方不愿意花费追究或起诉,尽量拖延付款期限。





  • 设定提起品质纠纷的限期,否则等于顾客放弃提起类似纠纷的权力。
  • 明确指定顾客必须在某期限之内反驳发票的内容,否则发票将是确凿的证据。




  • 设定起诉期限,以防顾客乘机反告。
  • 指定顾客无论有意反告,必须先付款,不准以损失作为扣留款项的理由。这能逼顾客选择是否要启动起诉程序,同时也让当事人迅速地得到判定。


您是否经常碰到发票过后,无法收款的困难?若须要关于合约条例的咨询,可通过电邮([email protected]) 或 LinkedIn (Boon Gan Ng) 联系我。

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Why have an Alternative Dispute Resolution clause?

Why have an Alternative Dispute Resolution clause?

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:


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.


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.


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.




  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。



  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。






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。

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Getting people to start negotiations with you

Getting people to start negotiations with you

The business owners I meet tend to be quite reasonable people, in that they usually want to end a dispute quickly and in an amiable way so that they can preserve the business relationship. They are usually confident that once they have an open channel to the other party, both sides can usually agree on how to resolve the dispute and move on. However, once in a while they will meet someone who refuses to talk to them or insists on having the court try the dispute.How can one start negotiations and move on sooner with their business and life?

It's this type of situation, where one party faces a stone wall or someone who is openly hostile, where I like to offer some ideas about getting the other party to participate in mediation. My understanding of mediation is a private session between parties in a dispute, with a neutral third party present to facilitate a settlement, and whatever is said in the meeting stays in the meeting. So it is not just another meeting between parties for the purpose of negotiation.

It would be great if you had a previous agreement with the other party to go to mediation in troubled times such as these, but if not, then you need to give them an objective reason to consider going for mediation.

A surefire way to create a sense of urgency to go to mediation is to start legal proceedings against the other side. When you start a suit, you force the other side to respond for several reasons:

  1. Any document with the court's seal is bound to draw any reasonable person's attention to it. This is usually enough to get the other side to go look for legal advice.
  2. A defendant has at the most 22 days to put up a defence once he or she is personally served with the documents. Failing to do so means that the plaintiff can apply for judgment in default and he will get what he asks for most of the time, such as a specified sum of money. Of course, if the other side has empty pockets then there may not be much motivation to participate in court proceedings and chalk up a legal bill.
  3. Usually people who are new to court proceedings will ask for cost estimates, and most of the time they will find it quite hard to swallow. This immediately creates a context for suggesting mediation as a less expensive and long-winded alternative.
  4. Having parties take clear positions on what happened and who's responsible gives you a good idea of what you can expect to hear at mediation, such as some possible objectives the other party wants to achieve (get some money? Make the dispute go away?). This is particularly useful for court-based mediation, where the time allocated is short and you don't want to spend too much time figuring out what exactly the other side wants.

Another method which works sometimes is to appeal to the parties' relationship, even for commercial settings. This works when both sides want to continue working with each other and are concerned about escalating the dispute too far. This worked out for a subcontractor client who could not agree what “relamping” meant, but both parties recognised that they still wanted to work with each other and agreed to spend time in mediation to find a solution. In the end, they managed to come up with a threshold to decide when and which party would foot the cost of certain items in the scope of work.

Getting parties to agree to mediate is only the first step. But it is an important step to resolving your business disputes efficiently and freeing up your time for more profitable activities.

Are you a director-shareholder of a company looking for counsel who can start legal proceedings but know when to hit the brakes in favour of negotiation or mediation? Write to me at [email protected] or message Boon Gan Ng on LinkedIn for a quick, no-obligations discussion.




  1. 带着法院盖章的文件,通常会促使对方寻求法律咨询。
  2. 被告也有22天左右的时间限递交抵抗书,否则原告可向法院申请立刻下判,除非对方一无所有,觉得反抗毫无意义。
  3. 首次面临诉讼程序的一方通常会注重法律费用,如果律师能提供预算,通常当事人会倾向尝试庭外和解。
  4. 当对方递交抵抗、反告书时,会显示他对此纠纷的立场,有时甚至透露了利益。了解对方的利益,就能准备在和解会议中单刀直入,直接商量如何达成双赢的协议。



如果您是公司董事、股东,而需要能衡量起诉、和解界限的律师,不妨以电邮([email protected]) 或 LinkedIn (Boon Gan Ng) 咨询。

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Must we meet in the middle for a successful negotiation?

Must we meet in the middle for a successful negotiation?

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.




  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。




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。

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5 Benefits of a Shareholders Agreement

5 Benefits of a Shareholders Agreement

Most companies depend on the default Table A found in the Singaporean Companies Act as their Articles of Association. While that is a good starting point for showing how the shareholders agreed to conduct themselves, there is much more that a standalone shareholders agreement can offer to reduce and de-escalate the risk of future shareholder disputes.

There are several areas where Table A is silent and therefore leaves a gap for many disputes to arise from. Such disputes are time-consuming and expensive to litigate because the parties' rights and obligations are often heavily disputed, and especially in smaller companies where parties once relied on mutual trust and confidence, there is a lack of documentary records and therefore many witnesses are required to testify on past events leading up to the suit. Having a shareholders' agreement which expressly set out the shareholders' rights and obligations is a major factor in reducing the chance and scope of such disputes.

I. Unanimity in Business Decisions

Companies in Singapore are required to declare to the Accounting and Corporate Regulatory Authority ("ACRA") the types of businesses which they run. However, they are not bound to only run the declared business(es) or to not enter into new businesses without making a declaration to ACRA.

Many shareholders become involved as investors with the expectation that the company will carry on a specific business until it makes a profit, instead of expanding or diversifying too quickly which may deplete their contributions even before the company can break even. However, the concept of majority rule applies to shareholders and the minority may find that they dragged along to a new direction, which creates unhappiness and a desire to exit in order to avoid getting mired in unfamiliar waters.

One solution is to have a clause to require all shareholders to consent to any change in the company's business. Not only does this prevent the majority from unilaterally changing the company's direction and business plan, but it also encourages the majority to obtain buy-in from the majority. This also benefits the majority because they will be able to detect early signs of dissension or dissatisfaction, and manage the minority shareholders before the dispute escalates to letters of demand and eventually, litigation.

II. Representation of All Shareholders

Under company law doctrine, the company's management is left to the directors, while the shareholders only get a say in the bigger picture, such as when the company intends to sell a substantial part of its assets. Shareholders also are only entitled to financial statements on an annual basis, as well as to vote at annual and extraordinary general meetings. Therefore, in order to have a bigger say in the company's affairs, shareholders must obtain additional rights.

One way of achieving more control is to give each shareholder the right to appoint, or be appointed as a director of the company. This ensures that there will be a man in the management to watch out for their interests, or at least provide them with a regular stream of information. Practically, in smaller companies the shareholders would want to be directly involved in running the business, and naturally they would be directors as well. Having this right expressly stated in the shareholders' agreement leaves no room for doubt, and creates confidence that they will not be kept in the dark.

III. Resolving Deadlock

While Table A requires a quorum (minimum attendance) of 2 persons at any meeting, it stops there without providing a solution for a company where shareholders continuously refuse to attend meetings and therefore cannot carry on any business - therefore resulting in a deadlock between shareholders with differing views. Often, this results in some of the shareholders applying for a court order to have the company wound up, which often invites counter-allegations and eventually escalates the entire dispute into a drawn-out trial.

  1. The events which would show that they are unable to work together - for example, a series of meetings which were invalid due to unfulfilled quorum,
  2. The steps for getting them to work out their differences, or to allow them to part ways, and
  3. How to invoke the deadlock breaking procedure.

There is no one-size-fits-all solution for such deadlock procedures because shareholders may have different tolerance for non-action, and the quorum may change depending on the number of shareholders who insist on being present and having a say.

More importantly, deadlock is often a symptom of underlying tensions between shareholders which they are unable to resolve themselves. This can be addressed by the following 2 aspects which are also frequently litigated.

IV. Exit and Valuation

Surprisingly, Table A does not envisage that a shareholder will exit the company. This presents a challenge for the minority shareholder of a private company because the market for his shares would be very limited, as not many outsiders would be interested in entering a business if they do not have relevant knowledge or experience, or if they perceive the shares to be difficult to trade. It is also not necessarily in the majority's interests to have a new shareholder enter the fray, especially if they do not already have a personal relationship with the potential entrant.

In order to resolve such difficulties, shareholders agreements should clearly provide for when shareholders may exit the company, give the first right of refusal to existing shareholders and specify a method of valuation. This prevents a minority shareholder from being stuck in a company, and allows the majority to limit the participation of outsiders. Most importantly, it reduces disputes over the price of the shares, given the wide range of valuation methods.

V. Alternative Dispute Resolution

Finally, the clause which has the greatest effect on containing and de-escalating disputes. An alternative dispute resolution clause can prevent parties from starting litigation at the drop of a hat, and in close-knit organisations, can preserve relationships by mandating that a dispute be referred to mediation first. Arbitration is also a good way to preserve confidentiality and prevent one party from airing dirty laundry, since the proceedings will be confidential and there is no public gallery to an arbitration hearing.

Are you about to form a company and wish to avoid spending time and money fighting your fellow shareholders? Email me ([email protected]) or message me on LinkedIn (Boon Gan Ng) for a free initial consultation.


【一】 取得全体的同意



【二】 股东的代表





  1. 僵局的定义
  2. 打破僵局程序的步骤,以便大家和好或道别
  3. 如何启动打破僵局的程序






您是否即将立公司,希望避免与其他股东拼搏?可通电邮([email protected]) 或 LinkedIn (Boon Gan Ng) 寻求咨询。

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Should my contract have an arbitration clause?

Should my contract have an arbitration clause?

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.





I. 费用




II. 对抗性关系


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。

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Can I have a Chinese contract?

Can I have a Chinese contract?

Contracts are a great way to manage relationships and risk. Getting parties to sign a contract before starting business helps to pre-empt disputes by making rights and obligations clear, and also getting parties to manage their disputes by less adversarial means. A careful businessman naturally wants to know what he is signing up for, and naturally a Chinese-speaking party might ask for a contract written in Chinese. But is it worth the time and effort?

By default, someone who signs an agreement is bound by the terms and conditions stated in it. However, some parties may attempt to free themselves of the contract by claiming that they did not understand the contents, or that they did not understand the effect of the contract - the common law defence of non est factum. Although this defence rarely succeeds, some people will just want to try their luck. Having the contract in a language which they are literate in helps to pre-empt such a defence and reduces the scope of a contractual dispute.

Aside from the legal advantage, a practical consideration is in building trust between the parties. For a Chinese party who does not know much about the Singaporean legal system and its substantive rules, presenting a Chinese contract gives them the confidence that they will know what they're getting into, and that the presenting party is not trying to hide anything behind a wall of English text. A relationship with a good start also helps when parties later disagree, since it's much easier to convince both sides to continue working together if there is a relationship to preserve.

On the other hand, there may be procedural difficulties if the agreement is only in Chinese:

  1. The court will want the agreement to be translated in English. That leads to additional translation costs, and sometimes the dispute gets escalated when both sides have a different translation and then the respective translators have to be called as witnesses, which then has the effect of prolonging the trial process. So why incur the initial cost of writing it in Chinese, only to have it translated back into English?
  2. Certified translators or multilingual persons will know that some words do not translate well because there is no exact equivalent. In a similar vein, parties coming from different countries would likely be governed by different laws and therefore would find certain Singaporean or common law legal concepts alien. For example, the English concept of equity has no equivalent in Chinese law, and a direct translation of "equity" into the phrase 平衡法 does nothing to help the Chinese reader understand the consequences of preserving equitable remedies.
  3. In a similar vein, some words can be translated in several different ways. In the absence of a commonly accepted Chinese legal vocabulary for common law or local statutory concepts, there may be different terms used by individual lawyers or translators but which relate back to the same concept.
  4. Some Chinese parties may want to include references to foreign legal concepts to make up for a perceived imbalance or disadvantage when it comes to contracting under an unfamiliar legal system. However that increases the cost of litigation, because then parties would need to introduce expert evidence on foreign law.

One way to mitigate these issues is to draft the contract in both English and Chinese, but with the English version to take precedence. This retains the advantage of both helping the Chinese-speaking party understand the contract, but yet reduce the cost of adversarial dispute resolution. Although this may increase the upfront cost of preparing the contract, it will reduce the time and money cost pressure if a dispute arises in the future.

Having said that, a good contract helps to make sure that parties are of one mind before they start working with each other. Having it in different languages helps to bridge the gap in a different way, as long as the necessary precautions are taken to avoid misunderstanding.

Considering a bilingual contract or contracting with Chinese parties? Email me ([email protected]) or send a LinkedIn message (to Boon Gan Ng) to get started.




  1. 在诉讼的情况下,法院会要求合约经过英语转译,造成起诉方承担多余的费用。如果被告对翻译不满,可提供另一份转译。一旦有了不同版本,双方聘请的翻译员必须提供口证,经过对方律师拷问,造成审讯的拖延。
  2. 某些词汇是无法完全翻译,况且各国的法律概念不一致。即使合约的内容能直译,但对方不一定能完全了解原本词汇的含义。
  3. 即使概念相似,翻译员可能用不同词汇。若需要把合约翻译英语,可能造成不同版本的问题。
  4. 如果合约包括国外法律条令或概念,法院会要求双方聘请法律专家,造成双方付出额外的费用。



需要英中双语的商业合约?不妨通过电邮 ([email protected]) 或 LinkedIn (Boon Gan Ng) 与我联系。

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Can I sue the company director or shareholder?

Can I sue the company director or shareholder?

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.




  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?




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。

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Who should foot the bill for Covid-19 costs?

Who should foot the bill for Covid-19 costs?

Singaporean businesses rely on foreign manpower to fulfill their staffing needs. In addition to making sure that the company fulfills the local-foreign staff ratio and that the foreign staff is granted a Work Permit, companies now need to ensure that their staff undergoes testing, and if necessary, quarantine to avoid the incoming employee being a Covid-19 carrier. However, can the employers pass on these additional Covid-19 costs to such foreign employees?

From general legal principles, it is open for the employer to state in the contract of employment that the employee must foot these costs, as a pre-condition or consideration (providing value to the other party) of the contract. However, such general principles have been overridden by the specific guidelines laid down by the Ministry of Manpower which state that

  1. Employers must buy Covid-19 medical insurance before such employees (excluding Employment Pass holders and their dependents) arrive in Singapore, and such insurance must provide at least $10,000 in cover.
  2. Employers must bear costs of Covid-19 tests, transport and Stay Home Notice accommodation for Work Permit holders.

So on the surface, it seems that employers have no choice but to bite the bullet when it comes to bringing in new Work Permit employees. However, if one looks closer at the guidelines, it contains an exception:

“However, to protect yourself against Work Permit holders who job-hop shortly after starting work, you can review the contractual terms of new Work Permit holders who have yet to come to Singapore to include certain conditions [which] should be:

  • Mutually agreed between you and your workers
  • Reasonable in duration, e.g. 3-6 months for minimum employment period
  • Tied to only the costs of Covid-19 entry requirements […]

If your Work Permit holders breach these conditions, they will have to reimburse you. The reimbursement can be partial or full, depending on their length of service.”

Therefore, it is possible to pass on such Covid-19 costs to foreign employees who terminate their employment shortly after entering Singapore, as long as the employee signs the employment contract with the permitted clauses. Such costs could possibly be deducted from the last salary paid, subject to the various restrictions found in the Employment Act. Of course, such deductions would also be limited by other contract law principles, such as penalty clauses.

While these rules are accessible to the public, it may be necessary to obtain professional advice in order to ensure that the clauses in the employment agreement remain enforceable, so that the employer’s interests can be protected.

Need advice on or a review of your employment contract framework to keep up with Covid-19 rules and regulations? Email me at [email protected] or send me a LinkedIn message.



  1. 雇主必须在外来雇员入境之前,购买冠状病毒的保险,提供至少$10,000的保险总额。
  2. 雇主必须承担冠状病毒检验、交通、隔离住宿的费用。


雇主因此能通过此例外规则而防止外来雇员立马跳槽,而这些费用可从最后薪水扣除。当然, 扣除的根据必须符合新加坡雇佣法律,和其他合约法律的原则,例如合约不该包括不合理惩罚条款。


需要关于雇佣合约与罐装必读有关规则的对比、审查?可通过电邮 ([email protected])或 LinkedIn 咨询

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Time To Do Away With Time Costs

Time To Do Away With Time Costs

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.


  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。

  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。

  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




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。

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Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?

If you have any questions relating to business dispute prevention or how to settle a business dispute in Singapore, feel free to email or drop me a LinkedIn message. I will do my best to respond within 24 hours.

Or leave a message here (your personal particulars will not be shared with third parties without your permission).



Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?