En 中文

Articles 文章

What if someone refuses 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 various objections.

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.

虽然庭外和解与其他非对抗性纠纷解决模式早已成为新加坡法律系统不可缺少的程序,但许多当事人或律师还是强烈抗拒非诉讼模式。若缺乏相关合约条例,即使法院程序要求双方先尝试非对抗突性纠纷解决模式,律师应该主动克服对方对庭外和解的抗拒。

首先,庭外和解与诉讼相比当然比较经济实惠:

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。

有些律师尝试已案件困难、复杂的角度说服对方,但对方律师不可能已类似的原因作为庭外和解的根据。

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。

中立的和解员是提倡和解长处的最佳角色。虽然有些法官在审讯之前会提供自己的看法,但这些看法并不一定对一方有利,而且律师也可以选择不把看法传达给当事人。和解员通常以来以下理由说服双方尝试和解:

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。

有时,为了让对方同意庭外和解,律师之间的沟通类似一场谈判,而有些律师也必须取得当事人的同意。能针对一方抗拒的根本,就能成功地大事化小,小事化无。

需要说服对方进行庭外和解?不妨通过电邮LinkedIn寻求咨询。

Read More Read More
The duty to attempt amicable resolution starting 1 April 2022

The duty to attempt amicable resolution starting on 1 April 2022 尝试庭外和解的义务

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LinkedIn 寻求咨询。

Read More Read More
3 things to do for constructive mediation

3 things to do for constructive mediation
促进庭外和解的3个行为

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. In no particular order:

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 (boongan@lawfirm.com.sg) or a LinkedIn Message to Boon Gan Ng.

我经常与当事人参与庭外和解会议,而且经常通过这些会议达成新的协议,好让双方维持商业关系。尽管新加坡法院鼓励各方尝试庭外和解,或关于庭外和解的资讯比较广泛,我还是偶尔遇见一些对庭外和解基本原则不熟悉的同僚。虽然他们是为了庇护当事人,但某些举止还是叫人头痛。

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。

当事人若能通过庭外和解而解决纠纷,不但能省时省事,还能减少精神上的负担。虽然有些律师觉得庭外和解只会减少律师事务所的利润,但若能更迅速地解决一个当事人的负担,就能把注意力集中在其他当事人的身上。作为律师,目的就是解决当事人面临的问题,而庭外和解就是解决商业问题的最佳模式。

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 (boongan@lawfirm.com.sg) 或微信 (+65 86208629) 联系我。

Read More Read More
Mediation is good for business

Mediation is good for business
庭外和解的商业益处

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 (boongan@lawfirm.com.sg) 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 (boongan@lawfirm.com.sg)LinkedIn (Boon Gan Ng)询问。

Read More Read More
Always ask about authority

Always ask about authority
决定权的所在

Some time ago, I made the fundamental mistake of trying to negotiate with someone who actually had no authority to do so.

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 boongan@lawfirm.com.sg, or chat with me on LinkedIn (Boon Gan Ng).

要与对方谈判,必先确定面前的人的确有代表对方的权力。最近一位当事人发现他不是主要租户,但压低金已经转到了房东的手里。实际上,当事人有保留压低金转款的证据,能证明主要租户直接把压低金转款给房东。出乎预料的是,主要租户的公司注册竟然被取消,公司实际上已不存在,房东的会计部门不知要把压低金退还给谁。

当事人指示,房东有意把压低金退还给他,需要和房东的一位副主席联络。一听到对方是职位相当高的副主席,我就直接与她通电话,希望能与她顺利、迅速地谈妥解决方案。

想不到,我竟然碰了好大的一个钉子。

当我向副总理询问,房东既然已经认同当事人的确是付压低金的一方,为何坚持只要把压低金退还给一个已不存在的公司?双方是否能通过另外一个方式解决房东的困扰?

不料,副总理的回复毫无合作的精神。
  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!)

周旋了一阵子,发现这位副总理如搬不动的大石头,只好挂了电话,通知当事人必须找另外一位可以配合的代表。

过后我反省是,觉得第一步该是确定这位副总理是否有谈判或达成协议的决定权,避免这让人怒发冲冠的对话。职位虽然代表权力,但并不一定表示谈判、达成协议的决定权力。商谈之前,应当肯定双方是否有适当的决定权。

想要确定对方是否愿意谈判或和解?不妨以电邮 (boongan@lawfirm.com.sg) 或LinkedIn (Boon Gan Ng)与我联系。

Read More Read More
Should I send a letter of demand?

Should I send a letter of demand?
通过律师发要求信是否有效?

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 boongan@lawfirm.com.sg 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(boongan@lawfirm.com.sg)或LinkedIn (Boon Gan Ng)联系我。

Read More Read More
How your contract can ensure payment

How your contract can ensure payment
以合约作为付款的保障

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 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 (boongan@lawfirm.com.sg) or LinkedIn (Boon Gan Ng).

现金是生意的命根子。公司若迟迟收不了钱,迟早会造成危机。即使中小企业能依赖贷款暂时度过难关,银行与其他的债主的能耐有限。只有保证顾客准时付款,才能付提供商与雇员,持续生意。

虽然本地生意都有发票的习惯,但难免会碰到以下的钉子:
  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。

当然,当事人有追究的选择,但发出律师信或起诉都是在似乎亡羊补牢的状况下不得已的行动。要求信必定有极限,而且上庭必费钱、费时、费精力。

所以要有防不胜防的心态,避免类似的情况发生。合约的种种益处,以下简单列出几项:

当顾客投诉货品、服务不到家

虽然律师可能把顾客在收到发票才投诉货物、服务缺陷的行为辩为马后炮,但还是必须等到了审讯的阶段才能反驳顾客的借口。所以,为了避免花至少18月的时间等待法庭的审讯,不如在草稿合约的阶段防止顾客耍赖。

有某些条例能减少顾客以货物、服务不足作为不付款根据的风险:
  • 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。

有了类似的条例,能助于缩短起诉程序,让当事人提早得到判书。

当顾客受损,准备反告

在某些行业(例如建筑),顾客因为当事人提供的货物、服务不齐全而受损,作为反告的跟据已司空见惯。当事人不但必须起诉顾客,同时也必须反抗顾客的反告行动,造成法律费用步步高升。许多中小企业也因此进退两难,最终放弃起诉的念头。

但是,适当的合约条例可避免类似的情况发生:
  • 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。
减少解决纠纷的费用

有了缩小纠纷范围的条例,还是必须考虑如何执行合约。虽然顾客可能为了避免缴交昂贵的法律费用而付款,但在起诉之前当事人应当考虑其他因素,例如起诉是否负面影响双方之间的关系。为了达到当事人的目标,合约可指定双方必须通过其他方式解决纠纷,例如仲裁或庭外和解,减少冲突性。

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(boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 联系我。

Read More Read More
Why have an Alternative Dispute Resolution clause?

Why have an Alternative Dispute Resolution clause?
为何合约应当有纠纷解决模式条例?

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 (boongan@lawfirm.com.sg) 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 (boongan@lawfirm.com.sg) 或 LinkedIn message (Boon Gan Ng) 咨询。

Read More Read More
Bringing people to the negotiating table

Bringing people to the negotiating table
如何促使对方参与和解或谈判

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, and they ask how to get these people to open up for discussion so that everyone can move on 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 boongan@lawfirm.com.sg or message Boon Gan Ng on LinkedIn for a quick, no-obligations discussion.

一般的商人希望能尽快解决纠纷,并且维持良好商业关系。他们会尝试与对方直接联系,达成协议,把纠纷抛在头后。但是,他们偶尔会碰到对商谈毫无兴趣,或者倾向法庭诉讼的一方。虽然不像让纠纷持续太久,但对方坚持通过传统模式解决纠纷,叫人不知所措。

在这种情况下,和解可能比较适合,因为有中立的和解员主持会议,鼓励双方和平、坦率地交谈。和解员也保证会议的次序,避免会议沦陷于彼此攻击。当然,双方提前同意参与和解会议是最佳状态,但在缺乏同意的情况下,必须鼓励或刺激对方选择通过和解解决纠纷。

激将法之一就是起诉对方。虽然表面上是矛盾的做法,但对方必须选择如何反应:

  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。

即使引起了纠纷,若双方希望能维持商业关系,也较容易鼓励对方参加和解会议。几年前有一位承包商的当事人,因合约的字眼不明确而造成义务上的纠纷,但因为双方承认希望能与对方保持长期的合作关系,最终以和解的方式签署了新的合约,改造双方义务的范围。

取得双方同意而进行和解,是顺利解决商业纠纷,把注意力集中在经营生意的第一步。虽然和解不保证双方能达成新的协议,但毕竟能取得双方同意是迈向商业效率的重要步伐。

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(boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 咨询。

Read More Read More
Must we meet in the middle for a successful negotiation?

Must we meet in the middle for a successful negotiation?
不要为了和解而牺牲一半的利益

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 boongan@lawfirm.com.sg 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(boongan@lawfirm.com.sg)或 LinkedIn (Boon Gan Ng) 联系我,寻求有效的和解方案。

Read More Read More
5 Benefits of a Shareholders Agreement

5 Benefits of a Shareholders' Agreement
签署股东合约的5大益处

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.

打破僵局程序的步骤,以便大家和好或道别
  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 (boongan@lawfirm.com.sg) or message me on LinkedIn (Boon Gan Ng) for a free initial consultation.

许多公司会完全采纳新加坡公司法律提供的模范宪章。虽然模范宪章包含公司基本操作程序,但并不全面的规划股东之间的权利与义务。在许多中小企业里,股东因为互相信任而忽略记录的维持工作,一旦关系破裂就会勾起过去的不满,因此造成股东纠纷诉讼耗费许多金钱、时间。有了股东合约,就能减少、避免纠纷的引起机率。

【一】 取得全体的同意

虽然新加坡公司必须向会计与企业管理局(“ACRA”)声明经营的各项生意,但可以经营其他生意。许多投资者因为希望公司维持某生意而取得利润,才以股东的身份参入公司,但大部分的股东如果决定改变公司的商业方向,那么少数的股东也无可奈何,阻止不了多数。在这种情况下,少数可能会为了退股,决定起诉其他股东。

如果股东合约设定必须取得股东全体的同意,才能改变公司的方向,这不但能防止多数股东气压少数,也能鼓励大家维持同心协力的精神。同时,多数股东能经过谈论提早察觉少数的不满,避免把纠纷闹大。

【二】 股东的代表

在新加坡公司法律下,公司应当由董事经理,而股东只在某些情况有决定权,例如当公司有意售卖大部分的资产。股东有权力要求公司提供常年财务报告,在常年、特殊会议投票。因此,为了维护自己的利益,股东合约必须包括股东代表授权的条例。

如果股东有委任董事的权力,就能保证有维护利益的经理人,提供公司操作的咨询。在中小企业里,股东当董事相当普遍,因为股东希望能直接经营生意。有了该条例,能增加股东对公司经理层的信心。

【三】打破僵局

模范宪章指定,无论董事、股东会议都必须有2位参与才能实效,但是它并不提供董事或股东连续不出席,而造成僵局的解决方案。为了打破僵局,有些股东直接向法庭申请公司清盘的庭令,不但类似用牛刀杀鸡,还可能引起其他股东利用次机会告状,造成纠纷变得更加激烈。

为了避免纠纷恶化,股东应当规划以下事项:
  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

起草打破僵局的条例时,必须考虑股东是否要参与每个会议,或对公司无法操作期间的看法。更重要的时,僵局代表股东之间意见分歧,不早日化解就会造成诉讼。

【四】退股、估价

模范宪章也缺少退股、股价条例。一般私人公司的股票不会吸引投资者的兴趣·,不易售卖,何况少数的股票。多数股东同行也不欢迎陌生股东的参与,因此股东之间顶下买卖条件、股价程序,能一箭双雕。

【五】纠纷解决方式

纠纷解决模式条例是一项防范纠纷的措施,能及时防止股东马上互相起诉。在关系密切的中小企业里,此条例也能通过和解模式保持良好关系的作用。为了避免家丑往外杨,纠纷也可以通过仲裁解决。此条例的内容将成为维持股东之间的和平的关键。

您是否即将立公司,希望避免与其他股东拼搏?可通电邮(boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 寻求咨询。

Read More Read More
Should my contract have an arbitration clause?

Should my contract have an arbitration clause?
仲裁是否适合你?

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 (boongan@lawfirm.com.sg) 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(boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 与我联系。

Read More Read More
Can I have a Chinese contract?

Can I have a Chinese contract?
合约是否能以中文起草?

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 (boongan@lawfirm.com.sg) or send a LinkedIn message (to Boon Gan Ng) to get started.

合约应当清楚地分配双方的义务、权利,能减少引起纠纷的机率,或者以非对立的方式解决纠纷。签署合约前应当充分了解条例,而如果一方不精通英语,就自然要求合约以中文起草。

中文的合约能防止一方以不了解内容作为不赴约的根据。一般,一方签署了合约,就必须遵守条例,除非他能证明在签署时不了解合约的用意。虽然法院不经常接收类似的理由,但为了避免对方提出此借口,可翻译合约。

除此之外,提供翻译的合约能提高双方之间的信任,尤其当对方不熟悉法律规则或系统。当纠纷引起时,如果双方之前有良好的关系,也会倾向维持关系,继续与对方来往、合作。

但是,在起草中文合约之前,应当考虑以下问题:
  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。

为了避免以上问题,可用英、中文起草双语合约,但以英语版本为主。这能让双方以自己熟悉的语言了解合约的内容,同时避免诉讼时负担额外费用。虽然会增加启超费用,但能减少未来必须花费的金钱与时间。

总而言之,为了让合约使双方提前达成共识,可通过是适当的翻译让双方更深刻地了解合约的义务与权利。多语言合约能减少误解产生的机率,同时促进双方合作的精神。

需要英中双语的商业合约?不妨通过电邮 (boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 与我联系。

Read More Read More
Can I sue a company director or shareholder?

Can I sue a company director or shareholder?
我是否能起诉公司的董事或股东?

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.

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 (boongan@lawfirm.com.sg) 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 (boongan@lawfirm.com.sg) 或 LinkedIn 咨询。

Read More Read More
Who should foot the bill for Covid-19 costs?

Who should foot the bill for Covid-19 costs? 冠状病毒费用该由谁承担?

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 boongan@lawfirm.com.sg or send me a LinkedIn message.

许多新加坡企业必须聘请外来劳工,除了维持本地、外劳的比率,还需为外劳申请工作准证,而在冠状病毒泛滥的情况下,也必须让员工经过检验、隔离才能入境。雇主是否必须承担检验、隔离的费用,或可以把此类的费用转给外来雇员?

虽然从合约法律基本原则的角度,雇主可通过雇佣合约要求雇员承担某些费用,但新加坡政府人力部已设定一系列的规则,例如

  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。

虽然表面上雇主不能把费用转给外来雇员,但规则里还是有例外。雇主为了避免外来雇员如今后短期内跳槽,能在雇佣合约注明外来雇员必须赴约至少3至6个月,若提早终止雇佣合约就必须成比例承担与冠状病毒有关的入境费用,而外来雇员必须入境时签署此合约,接收此条例。

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。

规则虽然公开,但为了维持雇佣合约的合法性、可执行性,维护雇主的利益,应当提前寻求专业意见。

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 (boongan@lawfirm.com.sg)或 LinkedIn 咨询

Read More Read More
Time To Do Away With Time Costs

Time To Do Away With Time Costs 费用不该以时间计算

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 (boongan@lawfirm.com.sg) 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 (boongan@lawfirm.com.sg) 或 LinkedIn 要求咨询。

Read More Read More

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).

若有关于商业纠纷防范、和解方案的疑问,可通过电邮或LinkedIn联系。我会尽量在24小时之内回复。

您也可以通过以下表格留言。我们不会在得到您的许可之前把个人资料传达给第三方。

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