adr centurion - delivering excellence in adr · makers, the judiciary and all other members of the...

Volume 1, Issue 3

31 July 2019

ADR CENTURION

BIMONTHLY NEWSLETTER OF THE

Kuala Lumpur Office Address Asian Institute of Alternative Dispute Resolution (AIADR) 2/F Suite 04-06, Bangunan Sulaiman, Jalan Sultan Hishamuddin 50000 Kuala Lumpur T: +60 3 2271 1131 | E: [email protected]

Regional Office Address Asian Institute of Alternative Dispute Resolution (AIADR) 1003 Bukit Merah Central #02-10 INNO Centre Singapore 159836 DID: (65) 6377 6637 Main: (65) 6278 2538 Email: [email protected] URL: https://aiadr.world

Editorial Committee Editors:

Mr. Lee Soo-Hyun

Mr. Sagar Kulkarni

Dr. Chandrika Subramaniyan

Prof Dr. Emmy Latifah

Editorial Advisor: Prof Dr. Chinyere Ezeoke

Publishing Advisor: Ankit R Sanghvi

Editorial Enquires should be directed to:

[email protected]

ADR Centurion

The ADR Centurion is the Bimonthly Newsletter of AIADR published six times per year by the Editorial Committee of AIADR for the members of the AIADR (the “Institute”) and general readers interested in ADR subject and practices. All rights reserved. Copyrights by ©Asian Institute of Alternative Dispute Resolution (AIADR). Opinions and views expressed in the ADR Centurion are solely of the authors and writers and are not necessarily endorsed by AIADR or its Editorial Committee. AIADR, Editors and or its Committees are not responsible or liable in any manner whatsoever for the contents and or to any person for relying on the contents of any of the advertisements, articles, photographs or illustrations contained in this Publication. All information is correct at the time of publication.

Electronic Version available at:

www.aiadr.world

I N S I D E T H I S I S S U E :

AIADR UPDATES 3

AIADR HIGHLIGHTS : Increasing access and significance of ADR forums in East Asia:

ESC Chairman Editorial Sub-Committee (Soo-hyun Lee) 10

AIADR HIGHLIGHTS : Arbitration and Conciliation (Amendment) Bill (2019)

(Sagar Kulkarni) 11

ADR INSIGHTS : The Dichotomy between Freedom of Contract and Contracting

Out the Security of Payment Legislation (Albert Yeu) 13

ADR INSIGHTS :Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. – A

March Towards Effectiveness of Arbitration in India (Kartikey Sanjeev Bhalotia,

Sandeep Golani)

15

ACKNOWLEDGEMENTS 17

ANNOUNCEMENTS 18

mailto:[email protected]


https://aiadr.world

http://www.aiadr.world

ADR CENTURION

Volume 1, Issue 3

EVENTS

Effective Forums for Dispute Management in Times of Turmoil, held on 25

July 2019

Upcoming event: Enforcement of Mediated Settlement Agreements Across

the Causeway, under Singapore Mediation Convention

Cyber Space

NEW AIADR WEBSITE LAUNCHED - TRY IT OUT

First Phase of the AIADR website has been launched and the work on

the Second Phase is on schedule to be completed by 3Q of 2019.

Members and non-members are invited to visit the website https://

www.aiadr.world to create their accounts and upload profile data.

Volunteers

NEW MEMBERS ELECTED TO THE EDITORIAL SUB-COMMITTEE (ESC)

James Ding Tse Wen, Partner at C.H. Tay & Partners, joined the ESC.

Mr. Ding is a Barrister (Lincoln’s Inn) and an Advocate & Solicitor of

the High Court of Malaya (Malaysia), which a focused practice in

arbitration and adjudication. He is a Fellow of the Singapore Institute

of Arbitrators (SIArb), Fellow of the Asian Institute of Alternative

Dispute Resolution (AiADR), Fellow of the Malaysian Institute of

Arbitrators (MIArb), Associate of the Chartered Institute of Arbitrators

(CIArb) and Member of the Malaysian Society of Adjudicators (MSA).

He sits on the panel of arbitrators and adjudicators of the Asian

International Arbitration Centre.

Social

AIADR FACEBOOK PAGE

AIADR Facebook Page has been launched on 22 July 2019.

Members and non-members are invited to visit the Facebook Page https://www.facebook.com/aiadr.world/ and post news, views, comments.

A warm welcome to AIADR’s

Seminar on Effective Forums for

Disputes Management in Times of

Turmoil and also, AIADR Members

Day where AIADR membership

certificates will be presented to

those members who are present.

His Excellency, Professor Kennedy

Gastorn, Secretary General of the

Asian African Legal Consultative

Organisation (AALCO) launched

AIADR on 6th May 2018. As such,

AIADR is set up with the support

and under the auspices of AALCO.

Case load in Asia and beyond

Africa is increasing. There is an

increasing demand for more

diverse ADR services apart from

arbitration including mediation,

adjudication and domain name

dispute resolutions. Arbitral and

related institution are moving into

new areas including Sports

arbitration and investment treaty

arbitrations. I am sure there will be

more areas to traverse as our

collaborators, colleagues and the

Institute continue to consolidate

and also, seek new areas to work

on and provide our services.

One of the reasons for the success

of ADR in Asia has been a general

commitment to capacity building

and knowledge dissemination

based on regional needs but

keeping to international standards.

The launching of AIADR last year

was a momentous occasion for

Asia and other emerging areas in

terms of ADR capacity building and

membership recognition

arrangements.

Earlier In the course of my work

and travels, I realize that there is a

need for a member-based

institution specific for Asia and

other parts of emerging

economies. Presently, we have

country based arbitral and ADR

institutions. Thus far, I have not

seen a region or continent based

institution serving the needs of the

region. There is this lacuna.

Such a member-based

organization can become a bridge

that goes beyond a particular

country or jurisdiction. It can

provide ADR education excellence

and recognition of its members

who have achieved prescribed skill

sets and also, have the necessary

experience.

There is a need to build capacity

and focus on other forms of dispute

Message from the President

At the Members Day Event

ADR CENTURION

resolution such as adjudication,

mediation, expert witness, domain

named dispute resolution in all

regions, with diverse backgrounds

and languages. For example, the

most widely spoken language in

the world is Chinese. There is also

Hindi, Japanese, Korean, Thai,

Russian, Malay, Arabic etc. There

is a need to be inclusive through a

membership institute which will

allow this.

The idea of the Asian Institute of

ADR first started in 2016. I

sounded out my many friends and

other colleagues in ADR

community both in Malaysia and

elsewhere. They all supported the

idea. The idea although ambitious,

was well received. Now the that

AIADR is set up, our real challenge

is now in place. We have to make it

grow and be relevant.

The Malaysian Government

through a Cabinet decision has

been supportive of the Asian

Institute of ADR as part of the

masterplan to promote ADR in Asia

and in particular, for Malaysia

given its location to lead the

charge. The approval included that

of the setting up of a Company

limited by Guarantee and agreed to

the RM1 million ringgit to be

transferred from Asian International

Arbitration Centre required to

AIADR

HIGHLIGHTS

Prof Datuk Sundra Rajoo

Volume 1, Issue 3

AIADR

HIGHLIGHTS

Effective Forums for Disputes

Resolution in Times of Turmoil

capitalize the company for working

capital and reserve. However,

AIADR is expected to be self-

funded by generating its own

financing through events,

sponsorships, training and

education. I am pleased to inform

that thus far, none of the seed

money has been utilized and

remains in fixed deposit.

The Institute itself is now

incorporated. I have to thank YBhg

Dato Quek Ngee Meng (Malaysia),

Mr. Jayems Dhingra (Singapore),

Mr. Man Sing Yeung (Hong Kong),

Professor Hi-Taek Shin (Korea)

and Mr. Li Hua (China) my fellow

co-council member for their

unflinching support and

cooperation in this regard. We are

all working together on the Belt

Road dispute avoidance and

resolution projects relating to China

and AIADR will be part of this

effort.

Such an initiative can only work if

there is support from the rest of

Asia and beyond. We are grateful

for the immediate support and

endorsement of HE Prof Kennedy

Gastorn, the Secretary General of

Asian African Legal Consultative

Organisation. He agreed that the

new Asian Institute of ADR should

start with Asia and when that is

settled and successful, move on to

perhaps, include Africa.

It is also appropriate that HE Prof

Kennedy launched the Asian

Institute of ADR. It is symbolic that

we have an African leader with a

Malaysian Chinese and a

Malaysian Indian involved in this

start up. HE Prof Kennedy’s

support has been unwavering.

Allow me to give you a little detail

as to how we are set up. AIADR is

founded under the auspices of

AIAC and AALCO to be the

independent institution for future

ADR practitioners and user groups

across all business segment.

Although a cliché, I can safely say

that the AIADR is meant to be an

institute for the members, of the

members and by the members. We

have set it up as a company limited

by guarantee, which is treated as a

public company in the eyes of

Malaysian law, with integrity and

transparency being the hallmarks

of our Institute.

We will be open to everyone

around the globe, with focus on

Asia and with the help of our

partners, subsequently Africa and

other parts of the world too. We will

set up affordable training

programmes to allow practitioners

from around the world, especially

Asia and Africa, to obtain the

training and know-how they need

to become certified ADR

practitioners. We will also offer

courses in different languages and

adopt various technological

innovations to ensure affordable

costs without compromising the

quality.

As a first step we will recognize the

talent that already exists. We have

identified prominent ADR

practitioners and specialists in the

Asia and across the globe, who will

be invited to become our members.

Membership subscriptions are to

be kept affordable to meet the

membership administrative costs

only. Members are allowed to use

the Institute’s Post-Nominal Letters

as a mark of Excellence. This

includes arbitrators, mediators,

adjudicators, domain name dispute

practitioners and experts and also

expertise in multiple languages.

In its education and training

programmes, the AiADR will set

educational standards, standards

that will be broadly based in the

Asia but benchmarked against

global standards. Our programmes

will enable less experienced

members to advance through the

various levels of membership.

The Institute is a platform for the

interchange of information and

building relationships with all

stakeholders including individuals,

organizations, corporations, policy

makers, the judiciary and all other

members of the ADR community,

to take their role and contribute

their expertise, impart knowledge,

share ideas and build capacity

while also gaining from the

AiADR’s membership benefits. On

that note, let me emphasise that

the Institute does not aim to

compete with any institutions but

rather work in collaboration and

aim to provide the lacuna within the

region.

AIADR will work with national

institutes across Asia and rest of

the World to avoid replicating and

avoiding conflict at local levels. Our

focus will be to provide them with

the autonomy to develop capacity

with only focus on standardization

and quality control from the

headquarters.

In line with the internationalization,

a satellite secretariat of the AiADR

is based in Singapore even though

the Institute is registered in

Malaysia.. We are now working

hard to ensure to recruit a Chief

Executive Officer and the

Secretariat is fully equipped and in

full capacity to disseminate our

programs, courses and activities

globally.

We have many activities and

initiatives lined up in different

jurisdiction. Our next event is in

Singapore. We have already

received resounding support from

all quarters and I am certain that

with your continued support and

participation, this institute will be

very successful in fulfilling its key

objectives.

Thank you!

Message from the President

At the Members Day Event

ADR CENTURION

AIADR

HIGHLIGHTS

Prof Datuk Sundra Rajoo

SIDE-

BAR

Participants were presented

with an overview of AIADR

Vision, Mission, Core Values

and Code of Ethics

AIADR VISION

& MISSION

Volume 1, Issue 3

AIADR

HIGHLIGHTS

Key Note Address

by Guest of Honour

Distinguished Guests,

Respected Council Members of the

AiADR,

Ladies and Gentlemen,

It gives me immense pleasure to

be with you this morning, at the

inaugural event of the Asian

Institute of Alternative Dispute

Resolution (“the AiADR”).

I would like to begin by firstly

extending my heartiest

congratulations to the esteemed

Council Members of AiADR, and in

particular the organisers for this

Seminar.

I specially commend the

determination and great efforts that

motivated the establishment of

AiADR. AiADR is notably the first

Asian-based global institution

which is firmly dedicated towards

the promotion and the practice of

Alternative Dispute Resolution

(“ADR”), through the provision of

affordable, independent and

accessible professional

development education and

services to the business

communities worldwide through its

pool of members.

What places the AiADR in a unique

position is, its very focus on

genuinely converging international

ADR practices, through specifically

tailored education and training

programs for the benefit of the

arbitrator and business

communities across emerging

regions of Asia, Africa and Central

& Southern America.

Ladies and gentlemen,

I applaud you for being part of such

a progressive mission (of the

AiADR) that prioritizes mutual

benefit in the commercial world,

with particular focus on

collaboration and continuous

learning in the sphere of dispute

resolution.

As the famous saying propounds,

“the journey of a thousand miles,

begins with a single step”;

I am certain that, through the

collective and consistent efforts of

its members, the AiADR will slowly,

but surely gain momentum in

bridging the gaps amongst

emerging economies and help

carve a fundamental change of

injecting traditional Asian values of

“amity, sincerity, mutual benefit,

and inclusiveness” into the highly

westernised arena of ADR.

Such a shift is long overdue and is

exceptionally timely in the present

time, where history is repeating

itself - in a good way;

I say this in reference to China’s

efforts in the recent years of

restoring the spirit of “peace and

cooperation, openness,

inclusiveness, equality, mutual

respect and mutual benefit”, of the

ancient Silk Road, through its

modern adaptation - the Belt and

Road Initiative.

Times of Open Economy:

The Belt & Road Initiative

Keeping the theme of today’s

dialogue in mind, allow me to

speak to you about the importance

of effective dispute management in

the context of the Belt and Road

Initiative and how the AiADR could

fit into this matrix and thence

contribute positively.


The Belt and Road Initiative (“BRI”)

was conceived by the Chinese

Premier, President Xi Jinping as

part of the “China Dream of Grand

Rejuvenation” and was officially

launched in Year 2013.

Fundamentally rooted in the notion

of open economy, the BRI is

China’s foreign policy which strives

to stimulate economic growth by

strengthening “strategic mutual

trust, investment and trade

cooperation, and cultural

YBhg TAN KOK WAI,

Malaysian Prime Minister's Special Envoy

to People’s Republic of China

exchanges” between China and

countries along two major

initiatives, namely:

(i) the “Silk Road Economic

Belt”, consisting of six land-based

corridors that connect China with

Central Asia and Europe;

and

(ii) the “21st Century Maritime

Silk Road”, consisting of maritime

routes which link China to South

East Asia, the Gulf Countries, East

and North Africa, and Europe.

More specifically, through this

Initiative China strives to facilitate

bilateral and multilateral trade

amongst developing economies by

establishing project-based

financing models, improving policy

communication, enhancing

infrastructure connectivity, and

people-to-people exchanges.

Its initial implementation focused

on the construction of major

transportation projects and logistics

platforms within China and in its

neighbouring countries along the

Belt and Road routes.

Today, six years since its

introduction, the BRI has grown to

attract a total of 125 participating

countries along the six corridors.

As the Initiative presents a liberal

‘Treaty-Free’ and open

arrangement for economic

cooperation, even countries

outside the BRI routes (such as in

the Latin America and noncoastal

parts of Africa) have entered into

collaborative agreements with

China.

An ongoing study by the World

Bank positively predict that the BRI

transport corridors have “the

potential to substantially improve

trade, foreign investment, and

living conditions for citizens in its

participating countries”.

Times of Turmoil: Weak

Momentum and Heightened

Tensions

Having said that, it ought to be

noted that BRI infrastructure

projects are cross border

transactions which are typically

“large-scale[d], capital intensive,

and with long development

timelines”, that could inevitably

expose participating countries or

individuals to high financial risks

and multiple legal/regulatory

compliance requirements.

Key Note Address

By Guest of Honour

ADR CENTURION

AIADR

HIGHLIGHTS

It goes without saying then that

the success of BRI in the long

run very much depends on

cooperation amongst the

participating countries, in

adopting effective policy reforms

that would “increase

transparency, expand trade,

improve debt sustainability, and

mitigate environmental, social,

and corruption risks.”

In this regard, the Joint

Communique of Country

Leaders in the recently held

“Second Belt and Road Forum”

in Beijing (April 2019),

emphasised the need for

participating countries to achieve

high-quality Belt and Road

cooperation through the

promotion of “development

policy synergy, increased

infrastructure investment,

unimpeded trade, financial

cooperation, people-to-people

bond and cultural exchange.”


In these present times of turmoil

where the world is experiencing

an economic slowdown, worsen

by the uncertainty caused by the

ongoing US-China Trade War,

Brexit, Korean Peninsula dis-

unification and doctrine of

sanctions in Middle East

Volume 1, Issue 3

AIADR

HIGHLIGHTS

Key Note Address

by Guest of Honour

Countries etcetera, it is all the

more important that we - the

emerging economies – cooperate

through the BRI to achieve a

“strong, sustainable, balanced and

inclusive growth.”

Closing: The Effective Forums of

Dispute Management in Times of

Turmoil

As mentioned earlier, BRI projects

are usually complex set ups which

may in turn lead to complicated

legal disputes encompassing

multiple issues, various industries

and different jurisdictions. Hence,

besides the pillar of strategic

cooperation, the success of BRI

equally requires the foundation of

legal/policies refinements, as well

as structured institutions that

focuses on holistic dispute

management.

In this regard, the Malaysia-China

Business Council (MCBC), the

China Council for the Promotion of

the International Trade (CCPIT)

and the China Chamber of

International Commerce, in

collaboration with industrial and

commercial organisations and legal

service agencies from over 30

countries and regional

organisations have announced the

establishment of the International

Commercial Dispute Prevention

and Settlement Organization

(ICDPASO) in April 2019.

The ICDPSO is aimed to serve as

a joint resolution mechanism which

will be able to address multi-

regional and multi-cultural needs

arising from BRI disputes in an

innovative, modern, and efficient

way, whilst also incorporating

proactive measures of dispute

prevention and dispute

management, namely amongst

others (i.) facilitating structured

negotiations between companies/

policy makers and trade entities;

(ii.) creation of standard form

contracts to avoid disputes and

clearly demarcate commercial

transactions in accordance with

different jurisdiction; and (iii.)

capacity building initiatives.

Understanding the importance and

benefits of pro-active dispute

management strategies, the

Malaysian Ministry of International

Trade & Industry (MITI) have

recently endorsed the nation’s

participation in long-term

multilateral cooperation in dispute

management for BRI-related

disputes, such as the ICDPASO.

As we weave our discussion

around the theme of “effective

forums for dispute management”

today, I hope that we bear in mind

the BRI and its cause/impact on

the arena of dispute resolution. I

trust that this and many other

upcoming events and trainings to

be organized by the AiADR will

progressively steer the ADR

practice in the Asian region and

countries along the BRI towards

the envisaged holistic dispute

management ideal, layered most

importantly, with Asian values of

mutual cooperation, learning and

benefit.

On that note -


I am proud to say that AIADR,

unlike the present institutions, is

the Institute of the Future, being

built on the firm foundation of core

values like Independent, Impartial,

Non-discriminatory and inclusive

professionals from across all

industrial, social and cultural

segments. I wish AiADR the very

best in its endeavours and I thank

you very much for your kind

attention. I hope the Seminar today

meets its objective.

Thank you.

YBhg TAN KOK WAI,

Malaysian Prime Minister's Special Envoy

to People’s Republic of China

Alternative dispute

resolution, its potential

applications and the benefits

that they present, if

configured and executed

effectively, can play a crucial

role in empowering and

further legitimizing arbitral

mechanisms in East Asia,

particularly in the Republic of

Korea and Japan. Yet in both

jurisdictions, we are seeing a

reversal of this trend.

International commercial and

investment treaty arbitration

are increasingly seen with

apprehension in their judicial

autonomy as well as their

capacity to coexist with the

objectives of public policy

and social justice.

Meanwhile, the use of

dispute settlement

mechanisms remains on the

rise as companies increase

their investments abroad.

While providing the

necessary protections for

investors, the dual impact of

exclusivity through enclave

effects and lacking

transparency has painted

international arbitration as

purely serving corporate

interests.

In the context of the

convoluted history and

relationship between the

government and corporations

as well as their societal

impacts in East Asia, this has

further distanced arbitration

from potential normalization.

The results is a formidable

wedge between the rise of

these mechanisms and

government policy. This was

observable in both South

Korea and Japan. The former

has become increasingly

weary of treaty provisions

that purely strengthen the

position of investors, which

were predominant during the

country’s efforts to expand

FDI inflows. Japan has

showed its willingness to

Increasing access and

significance of ADR forums in

East Asia

ADR CENTURION

intervene in potential

transactions that pose certain

socioeconomic risks

domestically, even if they can

be violative of investor rights.

Alternative dispute resolution

can act as a procedural and

substantive bridge

connecting aspects of

dispute settlement that are

compatible with government

policy while providing an

independent forum for the

settlement of disputes. The

AIADR seeks to serve as

part of the foundation in that

bridge.

The ADR Centurion is

dedicated to providing an

outlet for opinions by experts

and practitioners and is very

much part of that foundation.

We at the ESC look forward

to your active participation in

the Centurion.

Soo-hyun LEE is the Chairman of

the AIADR Editorial Sub-

Committee. He is a PhD

Researcher at Lund University

Faculty of Law under its Agenda

2030 Programme.

AIADR

HIGHLIGHTS

Soo-hyun Lee

Volume 1, Issue 3

AIADR

HIGHLIGHTS

Arbitration and Conciliation

(Amendment) Bill (2019)

The Arbitration and

Conciliation (Amendment)

Bill, 2019, was introduced in

the Rajya Sabha on July 15,

2019, and passed on July 18,

2019, which seeks to amend

the Arbitration and

Conciliation Act 1996. This

follows the Arbitration and


Bill, 2018 (“2018 Bill”) which

was passed by the Lok

Sabha on 10 August 2018

and was pending before the

Rajya Sabha. However, the

2018 Bill lapsed as the

16th session of the Lok

Sabha was dissolved. The

same 2018 Bill, albeit a few

minor changes, has now

been introduced as the 2019

Bill. Along with this the New

Delhi International Arbitration

Centre Bill, 2019 also was

passed by the Rajya Sabha

on July 18, 2019. It seeks to

establish an autonomous and

independent institution for

better management of

arbitration in India. This

highlight will focus on the key

amendments and features

the Indian Government seeks

to introduce.

The Arbitration and


Bill, 2019:

The bill seeks to establish an

independent body called the

Arbitration Council of India

(ACI) mainly for framing

policies for grading arbitral

institutions and accrediting

arbitrators, maintaining

depository of arbitral awards

made in India and abroad

and making policies for

maintaining uniform

professional standards for all

alternate dispute redressal

matters.

In case of disagreement

between the parties for

appointment of arbitrators,

the bill proposes that parties

can approach the arbitral

institutions designated by the

Supreme Court and High

Court in case of domestic

arbitrations and in case of

International Commercial

Arbitrations the parties can

approach Arbitral Institutions

designated by the Supreme

Court for appointment of

arbitrators.

The 2019 Bill proposes to

amend the start date for the

computation of the 12-month

time-limit for completion of

arbitral proceedings to the

date on which the statement

of claim and defence are

complete.

The 2019 Bill exempts

international commercial

arbitrations from the 12-

month time-limit.

The 2019 Bill further

introduces provisions on

confidentiality of arbitral

proceedings and immunity

for arbitrators.

The 2019 Bill prescribes

minimum qualifications for a

person to be accredited/act

as an arbitrator under the

Sagar Kulkarni

ADR CENTURION

ADR CENTURION

INSIGHTS ADR

HIGHLIGHTS

Arbitration and Conciliation

(Amendment) Bill (2019)

as an arbitrator under the

Eighth Schedule.

The Bill further clarifies that

the 2015 Act shall only apply

to arbitral proceedings which

started on or after October

23, 2015.

The New Delhi International

Arbitration Centre Bill, 2019:

The Bill seeks to

establishment of the NDIAC

to conduct arbitration,

mediation and conciliation

proceedings.

The Bill seeks to acquire and

transfer rights, title and

interest in the International

Centre for Alternative

Dispute Resolution (ICADR)

to central government and/or

NDIAC. ICADR is a

registered society to promote

the resolution of dispute

through ADR methods.

The NDIAC will consist of

seven members (i) a

Chairperson who has been a

Judge of the Supreme Court

or a High Court or an

eminent person with special

knowledge and experience in

the conduct or administration

of arbitration, (ii) two eminent

persons having substantial

knowledge and experience in

institutional arbitration, (iii)

three ex-officio members,

including a nominee from the

Ministry of Finance and a

Chief Executive Officer

(responsible for the day-to-

day administration of the

NDIAC), and (iv) a

representative from a

recognised body of

commerce and industry,

appointed as a part-time

member, on a rotational

basis.

The key objective of the

NDIAC will be promoting

research, providing training

and organising conferences

and seminars in ADR.

Providing facility for

conducting arbitrations,

mediations and

administrative assistance for

such proceedings.

Maintaining a panel of

arbitrators, mediators and

conciliators.

The Bill specifies that the

NDIAC will establish a

Chamber of Arbitration which

will maintain a permanent

panel of arbitrators. It further

specifies that it may also

establish an Arbitration

Academy for training

arbitrators and conducting

research in the area of ADR.

Sagar Kulkarni is member of

the Editorial Sub-Committee

of the AIADR and Founder of

LexWit, Legalaries based in

Pune, India practising in the

field of International Dispute

Resolution & Litigation,

Commercial, Contractual and

Corporate Legal Services.

Volume 1, Issue 3

ADR

INSIGHTS

The Dichotomy between

Freedom of Contract and

Contracting Out the Security

of Payment Legislation

The principle of ‘freedom of

contract’ embraces the

freedom of choice of express

terms by two contracting

parties given to their

intended meanings.

However, existing SOPL in

different jurisdictions have an

overriding power against any

anti-avoidance provision in a

contraction contract

attempting to modify,

exclude, restrict, limit or

prejudice the operation of the

SOPL. The following

discusses the application anti

-avoidance provisions in

various jurisdictions.

Christiani & Nielsen Ltd v

The Lowry Centre

Development Company Ltd

(2000) – UK

This statutory right contained

in section 108(1) of the

Housing Grants,

Construction and

Regeneration Act 1996

(“HGCRA”) was analyzed in

the case of Christiani v The

Lowry Centre Development

in 2000. One of the issues

centered upon an estoppel

argument that the concerned

parties had agreed to

exclude the application of

HGCRA on the construction

contract. The court held that

“…even if the claimant was

potentially estopped by its

pre-agreement

understanding that the

HGCRA was not to apply to

the deed… (2) parties could

not in any event, by estoppel,

prevent the claimant from

relying on the HGCRA since

its terms are mandatory and

they cannot be contracted

out of…”

Body Corporate 200012 v

Naylor Love Construction

Ltd and others [2017]

NZHC 2953 – New Zealand

The claimant argued the

adjudicator had no

jurisdiction to decide the

subject matter because the

respondent did not refer the

dispute to adjudication within

the specified contractual

timeframe, which states: “No

decision, valuation, or

certificate of the Engineer

shall be questioned or

challenged more than three

Months after it has been

given or more than one

Month after the date on

which any relevant

Adjudicator’s Determination

is given to the parties,

whichever is the later, unless

notice has been given to the

Engineer within that time…”

The court held that it was a

matter of contractual

interpretation and to decide

whether the clause fits in the

statutory framework of the

contract was within the

adjudicator’s jurisdiction, and

that the claimant’s attempt to

prevent payment for work

performed in reliance of a

contractual time limit in

Albert Yeu

ADR CENTURION

ADR CENTURION

INSIGHTS ADR

INSIGHTS

The Dichotomy between

Freedom of Contract and

Contracting Out the Security

of Payment Legislation

Construction Contract Act

2002.

John Holland Pty Ltd v

Coastal Dredging &

Construction Pty Ltd [2012]

QCA 150 – Queensland

Amongst other issues, the

court found that a contract

provision stating that “The

Subcontractor warrants and

represents that if a Payment

Claim does not comply with

the conditions set out in this

clause 12.6: (h) that Payment

Claim is void…” has no effect

in terms of s.99(2)(b) of the

Building and Construction

Industry Payments Act 2004

as a provision “purports to…

modify… the effect of a

provision of this Act, or would

otherwise have the effect of

… Modifying… the effect of a

provision of this Act.”

Bumimetro Construction

Sdn Bhd v Mayland

Universal Sdn Bhd

(Originating Summons No:

WA-24C-86-05/2017) –

Malaysia

The Construction Industry

Payment and Adjudication

Act 2012 does not contain an

express ‘No contracting out’

provision. It was however

tested in this case in the

matter of whether a stay

should be granted as of right

the moment there is shown a

pending arbitration. The court

interpreted the relevant

contract and CIPAA as a

whole and gave effect to

s.17A of the Interpretation

Acts 1948 and 1967 stating

that “In the interpretation of a

provision of an Act, a

construction that would

promote the purpose of

object underlying the Act

(whether that purpose or

object is expressly stated in

the Act or not) shall be

preferred to a construction

that would not promote that

purpose or object.”

Adjudication decisions

upholding the underlying

objective of the SOPL on

prompt payment with or

without an express provision,

which are widely enforced by

the court, may have a far-

reaching implication on

standard forms of

construction contract, which

many contain provisions

such as interim payment

application procedure that

impose a condition precedent

for the assessment of

payment by the contract

administrator.

Ir Albert YEU

FCIArb FHKICAdj MICE

Hong Kong Institute of

Construction Adjudicators

Volume 1, Issue 3

ADR

INSIGHTS

Board of Control for Cricket in India

v. Kochi Cricket Pvt. Ltd. – A March

Towards Effectiveness of Arbitration

in India

Kartikey Sanjeev Bhalotia, Sandeep Golani

The basic intention behind

the Arbitration & Conciliation

(Amendment) Act, 2015

(hereinafter, “Amendment

Act”) was to hasten the

dispute resolution process in

India and to improve the

country’s reputation in ‘ease

of doing business’.

Irrespective of the intention

of the legislature of the

country, the passing of the

act resulted in certain

significant unprecedented

results.

The case came ahead of the

recent amendment brought

to the Arbitration and

Conciliation Act, 1996

(hereinafter, the “Act”) by the

Amendment Act. It dealt with

a long-standing confusion,

whether Section 36 of the Act

shall apply in its original or

amended form to the pending

Section 34 applications

before the court.

The answer to this confusion

depended on the

interpretation of Section 26 of

the Amendment Act. The

Section became the major

source of trouble for the

courts in the country. It

provides for the non-

applicability of the

amendment act to the arbitral

proceedings commenced in

accordance with the

provisions of the Arbitration

and Conciliation Act, 1996.

Additionally, the section

provides that the amendment

act will be applicable to

arbitral proceedings

commenced on or after the

date of commencement of

the amended act.

A careful interpretation of the

Section becomes very

essential because of the far-

reaching changes brought to

Section 36 of the Act. The

pre-amended Section 36 of

the Act which put an

automatic stay on the

enforcement of the arbitral

award, during the pendency

of Section 34 application for

challenging the arbitral

award, virtually paralyses the

process for the winning party/

award creditor. Due to this

very fact, the Amendment

Act brought sweeping

changes to this outdated

provision and provided that

the mere existence of a

Section 34 application would

not automatically render the

arbitral award unenforceable.

The interpretation laid down

by the Hon'ble Supreme

court provided some clarity

as to the applicability of the

amended Section 36 to

pending cases. The court

held that Section 36 in its

original form, is only a clog

on the right of decree-holder

and there is no vested right

in that regard to delay the

court proceedings and wait

infinitely which will

consequently defeat the

objectives of the Amendment

Act.

Concerning the cause of

anomalies caused by section

26 of the amendment act, the

court held that though the

retrospective application may

lead to a few anomalies. Cut-

off dates by their very nature

ADR CENTURION

ADR CENTURION

INSIGHTS ADR

INSIGHTS

Board of Control for Cricket in India

v. Kochi Cricket Pvt. Ltd. – A March

Towards Effectiveness of Arbitration

in India

are bound to lead to certain anomalies, but then court emphasized that anyway the process of interpretation should not be so twisted as to negate the plain language as well as the object of the Amendment Act. Finally, the court observed that, the underlying objectives of the Amendment Act cannot be defied, and held that “the execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act”. Although this judgment alone cannot be considered to be a panacea for the problems surrounding the Amendment Act, this can definitely act as a guide. This would go a long way in helping the courts to establish a proper functioning ADR mechanism in India. In light of the prevailing confusions created by the Amendment Act, the Parliament has recently attempted to resolve the uncertainties under the current amendment act by passing the Arbitration and

Conciliation (Amendment) Bill, 2018 (hereinafter, “Amendment Bill”) in the lower house. The bill seeks to unequivocally provide for strictly prospective application of the amendments under the Amendment Act. But this might put the positivistic interpretation of the Supreme Court in the above case on a “back-burner”. In our view, the amendments sought to be introduced by the Amendment Bill might act as a strong blow to the promotion of ADR mechanisms in India. The Amendment Bill could end up negating the efforts of the Supreme Court in removing the clog of adversarial adjudication over the ADR mechanisms prevailing hitherto, in India. The authors are in their second year, BBALLB National Law University Odisha (NLUO).

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Volume 1, Issue 3

IMPORTANT—ANNOUNCEMENTS

Applications for Corporate Memberships are invited under the following groups:

Platinum Members : Users of ADR Services

Gold Members : Arbitral Institutions and ADR / Legal Services Providers

Silver Members : Educational Institutions

Ordinary Members : All Other Corporates

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Corporate Members

Certified International Practitioners

(Arbitrator, Mediator, Adjudicator,

ADR Practitioner) [Post Nominals:

CIA, CIM, CIAdj, CIP, ADR]

AIADR MEMBERSHIP GRADES

UPDATE MEMBERSHIP RECORDS

ONLINE

All existing members are urged to register

online, update full particulars and create your

public profile on the new website. At checkout

in the payment mode, select “Bank Transfer”.

(For new members make payment online.)

Registered members will be able to

create their own blogs and post

comments on other blogs.

Your profile will get noticed by parties

seeking ADR professionals, you chose

what to place in public profile section.

ADR CENTURION

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ACKNOWLEDGMENTS

The Secretariat, AIADR is delighted to have organised its first event, AIADR Members

Day & Seminar "Effective Forums for Disputes Management in Times of Turmoil" on 25

July 2019 held at Bangunan Sulaiman, Kuala Lumpur, Malaysia.

The event was well attended by around 80+ participants including members and non-

member. In this One Day Session, the expert speakers and veterans shared their views

on Business Continuity Plans and effective forums for resolving conflicts and disputes in

the Construction, Maritime, Trade and IP related disputes of Pharmaceutical and

Petrochemical Industries. During the evening programme, the membership certificates

were presented to members present.

The Secretariat acknowledges with thanks the contributions and support from members

of the Committees of AIADR and all the members present to make this a great event,

marking the beginning of many more to come!

AIADR Members Day & Seminar "Effective Forums for

Disputes Management in Times of Turmoil"

Volume 1, Issue 3

ANNOUNCEMENTS

Inviting Corporate Members

Contact us at [email protected] for

advertisements and sponsorships!

Be seen and enhance your presence as ADR

Services User or Provider!

SPACE RESERVED FOR

Equal Opportunity

for All!

AIADR is seeking a

dedicated, passionate,

visionary and committed

professional from Business

Sectors, Legal Services or

Institutional background

with 15 years or more

experience and unique

credentials as a CEO /

Director / GM

Candidates from Malaysia

or ASIAN countries are

encouraged to apply!

For more information and to

apply, email with your CV to:

[email protected]

CEO is required to be the Champion and

Driver of the new and rising membership

based NGO and ADR Institution.

Overall responsibility

for management and

the secretariat functions

Reporting to the

Governance Council

Must be able to build

and grow the Institute

Personality with Global

outlook on solid

foundation

Independent and Self

Starter

AIADR is Inviting:

Chief Executive Officer

That AIADR is a NGO and Members Institution!

Subscription funds of the members will be used for membership records administration only and not for

the payroll of the AIADR Secretariat!

Education, Training and CPD Programs will be affordable and without discrimination!

AIADR will be the Institute for members from all industries and walks of life, including but not limited to

lawyers and legal professionals!

Free from any historical inclinations, but for the future generations to come!

Affordable, Independent, Accessible, Desirable and Resourceful!

ADR Centurion is the bimonthly Newsletter of AIADR containing contributions from individual authors, for

distribution to the members of AIADR, ADR practitioners, professionals from trade & industry and

associated organizations. The constructive feedback and comments from the readers are most welcome!

Cut-off Date for Submission of Contributions:

1. For the Next Newsletter: 15 Sep | 15 Nov

2. For AIADR Journal Articles: 15 Aug | 15 Oct

Direct queries to [email protected]

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Singapore Office

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