Description
The Bar Council Arbitration and Construction Law Committee is organising this one-day seminar, which will include a comprehensive review of some of the more practical aspects of construction law, including the much-talked about Construction Industry Payment and Adjudication Act 2012 (“CIPAA 2012”). It will focus on particular topics of interest and, after setting out general principles, will seek to answer some of the more common questions and problems arising hence. An overview of these topics and some of the questions and problems are provided below. Attendees are encouraged to participate with their own questions, which will be answered throughout the seminar.
Programme
| Time | Programme |
| 9:00 am | Registration |
| 9:30 am - 12:30pm | Panel A
(1) Tenders by Ng Ziyang Partner, The Chambers Of Ng & Co
• How reliant can tenderers be on information given to them during the tender meetings such as soil investigation reports, tender clarifications, and answers to questionnaires?
• Can a tenderer or an employer withdraw from a tender?
• Can one start the works with merely a letter of intent, or does one need to have a signed letter of award or contract?
(2) Variations by Christine Toh
• Can a contractor make claims without written instructions?
• What happens if non-compliance of the contract procedures for variations occurs?
• Can a contractor claim loss of profits for omitted works?
• Can an employer omit a substantial portion of the works as part of a variation order?
• Can an employer engage a third party to carry out the omitted works?
• What happens if the variation goes beyond the scope of the contract?
• Must variation works follow the contract rates?
(3) Payments by Janet Chai Pei Ying
• Is retention money trust money and is it to be placed in separate accounts?
• “Pay when paid” clause — where are we now?
• Can a contractor suspend, delay or terminate work if payment is not made?
• Can a sum that was previously certified be revised?
• Can a subcontractor claim direct payment from the employer? Can an employer pay directly to the subcontractor?
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| 12:30 pm | Lunch |
| 2:00 pm - 5:00 pm | Panel B
(4) Performance Bonds by Anis Ahmad Amirudin
• Is unconscionable conduct a ground to restrain payment under a performance bond?
• What situations amount to unconscionable conduct?
• Which situations do not amount to unconscionable conduct?
• When must the call on the bond be made — before or after termination?
• Under what circumstances can a contractor prevent a call on the performance bond?
(5) Termination by Balan Nair Thamodaran
• Can a contractor terminate the main contract even if there is no termination clause?
• Common law termination vs contractual termination
• Effects of wrongful termination
• Can a contractor get an injunction to restrain the employer from terminating the contract?
(6) Time by T Kuhendran
• Does a programme form part of the contract?
• Who owns the float in a programme?
• How does one deal with concurrent delays in terms of extension of time/loss and expense?
• Does an entitlement to extension of time mean entitlement to loss and expense?
• Will a contractor lose an entitlement to extension of time / loss and expense if notice requirements in contract are not met?
• What is a reasonable time to respond to applications for extension of time / loss and expense?
• Can extensions of time / loss and expense be decided after the expiry of original completion or after practical completion?
• Can time be shortened due to omission of works?
• In what circumstances will an employer lose the right to liquidated damages?
• Is there any alternative to extensions of time when works are delayed?
(7) Adjudication by Raja Kumar Raja Kandan
• Review of the adjudication process from payment claim up to the decision stage
• Is adjudication limited to payment issues only?
• Effect of CIPAA on back-to-back payment arrangements and default payment provisions
• Can a party ignore the adjudication if the adjudicator has no jurisdiction?
• What are the options available to a winning party?
• Can the losing party have the decision stayed or set aside?
• Can the respondent claim a set-off by reason of delay damages?
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Upon successful registration, a link of confirmation will be emailed to the registered participants only. Registration will close on 9 Jan 2021 (Tuesday) at 5:00 pm.
Please note that no additional registration will be accepted once the closing date has passed, or if the registration is full (whichever comes first).
We may not permit future registration if you fail to attend the conference after registering, unless you provide an acceptable and valid reason(s).
Should you have any enquiries, please contact:
Florence Laway (florence@malaysianbar.org.my)
Florence Andan (florence.andan@malaysianbar.org.my)
Rajeswari Gunarasa (rajeswari@malaysianbar.org.my)
Organised by
Speaker
SPEAKERS
PANEL A
Ng Zi Yang
Ng Ziyang (PJM, FAIADR) is an advocate and solicitor whose portfolio focuses on construction litigation. He has represented clients in both the Malaysian courts as well as in adjudication matters under CIPAA 2012. Ng Ziyang is on the panel of adjudicators of the Asian International Arbitration Centre (“AIAC”) as well as a Fellow of the Asian Institute of Alternative Dispute Resolution.
Christine Toh
Christine Toh graduated with a Bachelor of Laws (Hons) from the University of London (External) in 2012 and completed her Certificate of Legal Practice (“CLP”) in 2013. She read in the Chambers of Vin & Isaac Lee and was admitted as an advocate and solicitor of the High Court of Malaya in 2014. Christine established Christine Toh & Co in 2023, a multi-practice law firm with the aim to provide quality services to her clients. Christine is also an independent non-executive director of a public company principally involved in electrical engineering service provider. Christine’s primary areas of practice are construction (adjudication, arbitration, and litigation), debt recovery, and corporate disputes.
Janet Chai Pei Ying
Janet Chai is a partner of Chooi & Company. Janet’s practice focusses on commercial, energy, construction and engineering disputes. Janet has been an accredited adjudicator with the AIAC since 2014 where she has regularly been appointed as adjudicator in various claims involving issues of variation, termination, suspension, delays, defective works, additional/variation costs, increased costs due to replacement or engagement of third parties. Janet has served the Bar Council Advocacy Training Committee as an advocacy trainer since 2016. Janet graduated from University of Sheffield (England) with a Bachelor of Laws (Hons) in 2003. She was called to the Bar of England and Wales in 2004, and was admitted as an advocate and solicitor of the High Court of Malaya in 2006.
PANEL B
Aniz Ahmad Amirudin
Aniz Ahmad Amirudin focuses on construction and infrastructure as well as arbitration and adjudication. He has extensive experience in both advisory and advocacy aspects in these areas and has been involved in both international and domestic arbitrations held under the auspices of the AIAC, Singapore International Arbitration Centre (“SIAC”), International Chamber of Commerce (“ICC”) and London Maritime Arbitrators Association (“LMAA”) rules. Aniz actively sits both as an arbitrator and as an adjudicator on various construction disputes being a panel member of AIAC and ICC (Malaysia). Aniz has also been included in amongst others, in the panel of the London Court of International Arbitration (“LCIA”), ADGM Arbitration Centre, Abu Dhabi and Shanghai International Arbitration Centre. Aniz is also a member of the Bar Council Arbitration and Construction Law Committee and a member of the ICC Malaysia Arbitration Committee. Apart from being recognised by the Global Arbitration Review 100, The Legal 500 Asia Pacific and the Asia Law Profiles, Aniz has also been recognised as a “Litigation Star” by Benchmark Litigation Asia-Pacific in 2023. Apart from construction disputes alone, Aniz is also an active litigator focusing on commercial disputes and has appeared as counsel in all levels of Malaysian courts.
Balan Nair Thamodaran
Balan Nair Thamodaran is an experienced litigation and arbitration lawyer. He was admitted to the High Court of Malaya in 2005 and holds a Master’s degree from Queen Mary University (London), focusing on international arbitration and construction law. He primarily handles disputes relating to construction, energy and engineering law. Balan regularly advises and acts for clients in disputes relating to construction adjudication, civil construction, oil and gas, power plant, offshore construction and marine engineering, logistics, infrastructure and palm oil (“PORAM”).
T Kuhendran
T Kuhendran heads the construction dispute resolution practice group at Zul Rafique & Partners. He holds a Bachelor of Laws (Hons) degree from the University of Leicester, United Kingdom. He is a solicitor of the Supreme Court of England & Wales and was admitted as an advocate and solicitor to the High Court of Malaya in 1992. He is also a fellow of CIArb, arbitrator, adjudicator, and mediator of AIAC. With experience that spans almost three decades, Kuhendran is principally involved in dispute resolution, particularly in construction and engineering-related disputes. Apart from his experience in dispute resolution, he has also advised on different aspects of construction and engineering law. In addition, he has drafted and vetted various construction and engineering-related contracts. Besides being active in the field for alternative dispute resolution matter as mediator and arbitrator, Kuhendran has also appeared at all levels of courts, from the High Court to the Federal Court. Kuhendran has also been recognised as a “Recommended Lawyer” in 2023 by Legal 500 Asia Pacific and in “Band 3 for Dispute Resolution – Construction” by Chambers Asia Pacific in 2023.
Raja Kumar Raja Kandan
Raja Kumar is a partner in Azman Davidson & Co in the arbitration and dispute resolution practice, making regular appearances in the High Court, Court of Appeal and Federal Court as well as in the arbitration and adjudication circuits both locally and internationally. His area of practice includes arbitration, adjudication and building construction as well as in other areas including insurance and/or general litigation. He is presently a certified adjudicator with the AIAC, a member of the Bar Council Arbitration and Construction Law Committee, an associate member of the Chartered Institute of Arbitrators (“CIArb”), the Treasure of CIArb Malaysia and a Fellow of the Asian Institute of Alternative Dispute Resolution.
Terms and Conditions
Event Policy
Places are limited and registration is on a first-come, first-served basis.
For events with registration fees, all payments must be made in advance, including bank charges. Registration will be confirmed once proof of payment is provided by email or fax, and full payment is received.
For events that are not organised by Bar Council, please note that you are subject to the relevant terms and conditions specified by the external providers.
Cancellation
Cancellations must be made in writing.
If you have failed to inform the organiser on your cancellation for three consecutive times, you may be blacklisted for future events.
Refunds
Refunds will be processed after the event is completed. This may take up to 30 business days. The conditions for refunds are as follows:
- Full refunds will be issued if the event is cancelled or postponed by the organiser due to some circumstances.
- No refunds for this course. However substitution is allowed.
The organiser reserves the right to modify, cancel or postpone the event, should circumstances arise that make such action necessary, whereupon all registration fees paid will be refunded.
Transferral
You are allowed to transfer your place to another participant, but you must notify the organiser with the necessary details.
Attendance
CPD points will not be awarded to lawyers and pupils in chambers from Peninsular Malaysia who arrive more than 15 minutes late, are not present throughout the event, or leave before its scheduled end.
Privacy
The personal information that you provide to the Bar Council, whether now or in the future, may be used, recorded, stored, disclosed or otherwise processed by or on behalf of the Bar Council for the purposes of facilitation and organisation of this event, research and audit, maintenance of a participant database for the promotion of this event, and such ancillary services as may be relevant.
Disclaimer
- Materials will be emailed only. No printed notes will be provided.
- No recording of the event is permitted via any means at any time.
- No part of the event content may be used/reproduced in any form without the written and explicit consent of the Bar Council and speaker(s).
