1. What are the current challenges to enforcement of multi-tiered dispute resolution clauses?
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- Preston Merritt
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1 Singapore Lawrence Teh Rodyk & Davidson LLP Singapore Law firm bio Co-Chair, IBA Asia Pacific Regional Forum 1. What are the current challenges to enforcement of multi-tiered dispute resolution clauses? In Singapore, there are no real challenges to enforcement, whereas there might have been a challenge some years ago due to the then perceived common law principle that good faith clauses were difficult to ascertain in terms of scope and performance and therefore difficult to enforce. Now the Singapore Court of Appeal has made clear that it will enforce good faith negotiation clauses in cases where it is clear to the court that parties have not fulfilled or performed the good faith obligation. (HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v. Toshin Development Singapore Pte Ltd [2012] 4 SLR 738 ( HSBC v Toshin )). Equally the Singapore Court of Appeal has recently clarified and reiterated that multi-tiered dispute resolution clauses will be enforced, and has gone further to require full and actual compliance with previous tiers (as opposed to substantial compliance) before subsequent tiers may be proceeded with. (International Research Corp PLC v. Lufthansa Systems Asia Pacific Pte Ltd and another [2014] 1 SLR 130 ( IRC v Lufthansa )). 2. What drafting might increase the chances of enforcement in your jurisdiction? Drafting clear words into a clause that good faith negotiations and/or mediation is a necessary step to be fulfilled in actuality and fully before a dispute is to be resolved by arbitration would demonstrate clearly the intention of parties and increase the chances of enforcement. Use of mandatory as opposed to discretionary language would increase the chances of enforcement. Specifying deadlines and time limits for each of the prior stages may increase the chances of enforcement in that it will better demonstrate to the court the overall intention of parties. For example, if the mediation stage involves a short period of 172
2 time, the court may come to the conclusion that mediation is meant for smaller and/or simpler disputes and that parties did not intend to imply into the clause any room for extension of time for mediation. Generally time limits may also serve to mark the end of one stage and the beginning of the next. Specifying the number of negotiation sessions may assist in the chances of enforcement in that it increases certainty as there is a fine demarcation of the end of one tier and beginning of the next tier. However a session should be welldefined in the clause. Specifying the identity of negotiation participants may increase the chances of enforcement in that it will better demonstrate to the court the overall intention of parties. However the identity of negotiation participants should be well-defined in the clause. Specifying specific rules for mediation may increase the chances of enforcement in that it will better demonstrate to the court the overall intention of parties. Specifying a particular dispute resolution institution for mediation may increase the chances of enforcement in that it will better demonstrate to the court the overall intention of parties. Specifying consequences for failure to undertake prior stages may increase the chances of enforcement. 3. If your courts have enforced such clauses, how have they done so? Where the clause provides for certain procedures to be complied with as conditions precedent to commencing arbitration, courts have enforced such a clause by finding that Arbitral Tribunals constituted in contravention thereof lack jurisdiction over the dispute between the parties. (see IRC v Lufthansa). Alternatively, where such clauses do not involve arbitration, courts have also enforced them by directing parties to comply with the terms of the clause and the relevant procedures provided by the clause. (see HSBC v Toshin) 4. Please give an example of a clause that has been found to be, and remains, enforceable in your jurisdiction. The clause upheld in IRC v Lufthansa provided as follows: Any dispute between the Parties relating to or in connection with this Cooperation Agreement or a Statement of Works shall be referred: first, to a committee consisting of the Parties' Contact Persons or their appointed designates for their review and opinion; and (if the matter remains unresolved); 173
3 second, to a committee consisting of Datamat's designee and Lufthansa Systems' Director Customer Relations; and (if the matter remains unresolved); third, to a committee consisting of Datamat's designee and Lufthansa Systems' Managing Director for resolution by them, and (if the matter remains unresolved); fourth, the dispute may be referred to arbitration as specified in Clause [37.3] hereto All disputes arising out of this Cooperation Agreement, which cannot be settled by mediation pursuant to Clause 37.2, shall be finally settled by arbitration to be held in Singapore in the English language under the Singapore International Arbitration Centre Rules ('SIAC Rules'). The arbitration panel shall consist of three (3) arbitrators, each of the Parties has the right to appoint one (1) arbitrator. The two (2) arbitrators will in turn appoint the third arbitrator. Should either Party fail to appoint its respective arbitrator within thirty (30) days as from the date requested by the other Party, or should the two (2) arbitrators so appointed fail to appoint the third arbitrator within thirty (30) days from the date of the last appointment of the two arbitrators, the arbitrators not so appointed shall be appointed by the chairman of the SIAC Rules within thirty (30) days from a request by either Party. The clause upheld in HSBC v Toshin provided as follows: (c) (i) Prior to the commencement of each Rental Term (other than the first), the Lessor and the Lessee shall in good faith endeavour to agree on the prevailing market rental value of the Demised Premises (excluding service charge payable and disregarding the value of all fixtures and fittings installed by the Lessee) for [the] purpose of determining the New Annual Rent for the relevant Rental Term. (ii) If by three (3) months (time being of the essence) before commencement of the relevant Rental Term the parties have not reached agreement on the New Annual Rent, the parties shall appoint three international firms of licensed valuers (the licensed valuers ) on the basis that each of the licensed valuers shall proceed to separately determine the prevailing market rental value of the Demised Premises. The licensed valuers shall be nominated by agreement between the Lessor and the Lessee or in the absence of agreement by the parties on any one of the licensed valuers by a date ten (10) weeks (time being of the essence) before commencement of the relevant Rental Term, such of the licensed valuers as have not been agreed upon shall be nominated by the President for the time being of the Singapore Institute of Surveyors and Valuers (or its successor institute) on the application of either the Lessor or the Lessee. If the said President is not available or is unable to make such 174
4 nomination at the time of [the] application, the nomination may be made by the Vice-President or the next senior officer of the said Institute then available and able to make such nomination. All costs and expenses of and in connection with the appointment of the licensed valuers shall be borne by the Lessor and the Lessee in equal shares. The licensed valuers shall act as experts and not as arbitrators and their respective decisions shall be binding and conclusive on the parties. (iii) Each of the licensed valuers shall be required by the Lessor and the Lessee to submit its report to the Lessor and the Lessee within one (1) month from the date of its appointment and the licensed valuers in determining the prevailing market rental value shall have regard to the annual rental value of the Demised Premises in the open market as a shopping centre at the date of review on a lease for a term equal to the relevant Rental Term based on an assumed area (the assumed area ) of 21,000 square metres. Each of the licensed valuers in determining such prevailing market rental shall: (aa) (bb) (cc) take into account the notional circumstance that the assumed area would necessarily include areas used for circulation; disregard the service charge payable and the value of all fixtures and fittings installed by the Lessee; assume that the Demised Premises are ready for and fitted out for immediate occupation and use for the purpose or purposes required by the willing tenant. (iv) The prevailing market rental value of the Demised Premises thus agreed by the Lessor and the Lessee pursuant to clause 2.4(c)(i) or the average of the three market rental values as determined by the licensed valuers, as the case may be, shall be the New Annual Rent for the relevant Rental Term Provided Always that: (aa) (bb) if the prevailing market rental value is less than the Current Annual Rent, the Current Annual Rent shall continue in force and shall be deemed to be the New Annual Rent for the relevant Rental Term; and if the prevailing market rental value is an amount which exceeds one hundred and twenty-five percent (125%) of the Current Annual Rent, the New Annual Rent for the relevant Rental Term shall be fixed at an amount equivalent to one hundred and twenty-five percent (125%) of the Current Annual Rent. 175
5 (v) In the event the New Annual Rent has not been determined in accordance with this clause prior to the commencement of the relevant Rental Term, the Current Annual Rent shall continue until the New Annual Rent has been determined, but shall be adjusted retrospectively to the commencement of the relevant Rental Term as soon as the New Annual Rent has been determined. Any accumulated arrears of rent owing to the difference between the New Annual Rent and the Current Annual Rent shall be paid by the Lessee to the Lessor within thirty (30) days of the determination of the New Annual Rent. 176
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