Singapore Infrastructure Dispute-Management Protocol
On 23 October 2018, the Ministry of Law launched a new Singapore Infrastructure Dispute-Management Protocol (“SIDP”).
A copy of the protocol is available for download via the Singapore Mediation Centre’s website, which is one of the two Authorised Appointing Bodies under the Protocol.
Half-way House. We observe that currently, the SIDP is contractual, and that the Dispute Board is only appointed upon a request by the Parties either jointly or acting singly. We also observe that there are no provisions in the SIDP that provides on when the appointment lapses, and that a Party may object to a request for the appointment of the Dispute Board.
So, the Dispute Board under the SIDP appears to be a half-way house between an ad hoc Dispute Board and a standing Dispute Board. It remains to be seen how Parties who contract into the SIDP will go about appointing the Dispute Board.
Challenging the Appointment. At this juncture, we also note that there are no provisions for challenging the appointment of the Dispute Board Members. Nevertheless, we note that in the provision on appointment of a Dispute Board Member,4 it is contemplated that a Dispute Board Member may decline to act, or is unable to act as a result of, inter alia, “resignation or termination of appointment”.
We therefore assume that similar procedures (and grounds) for challenging the appointment of arbitrators would also apply, though it would be helpful if a procedure is set out. This would be important, especially since it appears that once appointed, the Dispute Board remains in place even after the completion of the Project.
Interaction with Security of Payment Legislation. We also observe that one of the powers of the Dispute Board is to render a Determination, which is binding unless objected to.5 While it is provided under the SIDP that if there was a due objection, the dispute shall “be finally resolved by arbitration… or the courts”, we note that Art. 9.6 SIDP provides that “… Unless and until an arbitral tribunal or court decides otherwise, the Parties remain bound to comply with any Determination rendered by the [Dispute Board].”
Therefore, while it is provided that the Parties are entitled to “pursue their rights under the applicable Security of Payment Legislation” and the provisions are to Protocol are “not to be construed as a means to contract out of or amend statutory timelines prescribed by the applicable Security of Payment Legislation”,6 it remains to be seen how a Determination (and more pertinently, a Determination that has been objected to) will interact with an adjudication under the Building and Construction Industry Security of Payment Act.
Conclusion. It remains to be seen how the SIDP will operate in practice, especially since it is still very much in a nascent stage. We eagerly await to see how the SIDP will impact the local construction industry.
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