Econ Piling v Shanghai Tunnel: Appeal on Substantial Completion, Delay & Arbitration
Econ Piling Pte Ltd and NCC International Aktiebolag (formerly trading as Econ-NCC Joint Venture) appealed to the High Court of Singapore against a partial award in arbitration proceedings with Shanghai Tunnel Engineering Co Ltd (STEC) regarding a sub-contract for bored tunnelling works in the Circle Line MRT project. The High Court, with Judith Prakash J presiding, remitted the award to the arbitrator for reconsideration of the date of substantial completion of the sub-contract works and to provide reasons for dismissing the entire claim encompassed in Group 9 of the contra charges. The court dismissed the appeal on other grounds.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Partial Award remitted to Arbitrator for reconsideration of substantial completion date and reasons for dismissing contra charges.
1.3 Case Type
Civil
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal concerning arbitration between Econ Piling and Shanghai Tunnel over construction delays and substantial completion. Partial award remitted.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Shanghai Tunnel Engineering Co Ltd | Respondent | Corporation | Partial Appeal Dismissed | Partial | |
| Econ Piling Pte Ltd | Appellant | Corporation | Appeal allowed in part | Partial | |
| NCC International Aktiebolag | Appellant | Corporation | Appeal allowed in part | Partial |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Judith Prakash | Judge | Yes |
4. Counsels
4. Facts
- Econ-NCC Joint Venture (ENJV) contracted with Land Transport Authority (LTA) for MRT construction.
- ENJV sub-contracted bored tunnelling works to Shanghai Tunnel Engineering Co Ltd (STEC).
- Disputes arose regarding delays and payments under the sub-contract.
- STEC commenced arbitration proceedings against ENJV.
- The Arbitrator issued a Partial Award and a Correction Award.
- Both ENJV and STEC appealed the Partial Award to the High Court.
- The High Court remitted the award for reconsideration of the substantial completion date and reasons for dismissing contra charges.
5. Formal Citations
- Econ Piling Pte Ltd and another (both formerly trading as Econ-NCC JointVenture) v Shanghai Tunnel Engineering Co Ltd, Originating Summons No 235 of 2009, [2010] SGHC 253
6. Timeline
| Date | Event |
|---|---|
| Main Contract between Land Transport Authority and Econ-NCC Joint Venture dated | |
| Letter of Award for sub-contract awarded to Shanghai Tunnel Engineering Co Ltd by Econ-NCC Joint Venture | |
| Commencement date for the sub-contract works | |
| Based on the 22B3 programme, the date for handing over of the SB launch shafts to STEC for commencement of work | |
| Based on the 22B3 programme, the date for handing over of the NB launch shafts to STEC for commencement of work | |
| South Bound launch shaft handed over to Shanghai Tunnel Engineering Co Ltd | |
| North Bound launch shaft handed over to Shanghai Tunnel Engineering Co Ltd | |
| Econ Piling placed under judicial management by court order | |
| Judicial manager proposed the Scheme to the creditors of Econ Piling | |
| Scheme approved by the court | |
| Original completion date for installation of tunnelling works including First Stage Concrete | |
| Completion date stipulated in the Main Contract for Phase 3 | |
| Completion date for the sub-contract works | |
| Date parties accepted that the Defects Liability Period commenced | |
| Shanghai Tunnel Engineering Co Ltd gave notice to Econ-NCC Joint Venture of its intention to commence arbitration proceedings | |
| Shanghai Tunnel Engineering Co Ltd's application for an interim award to be made summarily in its favour was dismissed by the Arbitrator's interim award | |
| Commencement of the hearing of the arbitration | |
| Further hearings took place in arbitration | |
| Further hearings took place in arbitration | |
| Oral evidence completed | |
| Fifth and final set of submissions from Econ-NCC Joint Venture received | |
| Arbitrator dismissed Econ-NCC Joint Venture's application by the 2nd Interim Award | |
| Arbitrator denied Econ-NCC Joint Venture's request to put in a sixth set of submissions and declared the close of the hearing of the arbitration | |
| Partial Award issued | |
| Solicitors for Shanghai Tunnel Engineering Co Ltd wrote to the Arbitrator to seek clarification and correction on various points of the Partial Award | |
| Arbitrator issued the Correction Award | |
| Judgment reserved |
7. Legal Issues
- Substantial Completion
- Outcome: The court held that the Arbitrator erred in relying on the commencement of the Defects Liability Period to determine substantial completion and remitted the award for reconsideration.
- Category: Substantive
- Interpretation of Contractual Clauses
- Outcome: The court upheld the Arbitrator's interpretation of clause 17.0 of the Letter of Award as a retention clause, not a liquidated damages provision.
- Category: Substantive
- Delay vs Interruption
- Outcome: The court found that the Arbitrator did not err in failing to distinguish between delay and interruption, as the distinction was merely semantic.
- Category: Substantive
- Functus Officio and Res Judicata
- Outcome: The court held that the Arbitrator was not functus officio and STEC was not estopped from changing its position on the interpretation of clause 17.0 of the Letter of Award.
- Category: Procedural
- Costs
- Outcome: The court found that the Arbitrator erred in not considering costs thrown away by reason of the amendment of pleadings, but this error did not give rise to a right of appeal.
- Category: Procedural
- Scheme of Arrangement
- Outcome: The court held that the Arbitrator did not err in omitting to give effect to the Scheme of Arrangement, as it was not properly pleaded and did not extinguish claims against the other joint debtor.
- Category: Substantive
- Correction of Award
- Outcome: The court found no error in the Arbitrator's decision that STEC's clarification request was made under section 43(1)(a) of the Arbitration Act.
- Category: Procedural
8. Remedies Sought
- Monetary Damages
- Extension of Time
- Declaratory Judgment
9. Cause of Actions
- Breach of Contract
- Delay Claims
10. Practice Areas
- Arbitration
- Construction Law
- Commercial Litigation
11. Industries
- Construction
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Shanghai Tunnel Engineering Co Ltd v Econ-NCC Joint Venture | High Court | Yes | [2010] SGHC 252 | Singapore | Related appeal arising out of the same arbitration proceedings. |
| Amalgamated Building Contractors Ltd v Waltham Holy Cross UDC | N/A | Yes | [1952] 2 All ER 452 | N/A | Cited for the principle that a party cannot insist on a condition if it is their own fault that the condition has not been fulfilled, regarding liquidated damages for non-completion. |
| Khan v Goleccha International Ltd | English Court of Appeal | Yes | [1980] 2 All ER 259 | England and Wales | Cited regarding issue estoppel and whether a party is estopped from changing its position on the interpretation of a clause. |
| Econ Piling Pte Ltd and another v Sambo E&C Pte Ltd and another matter | High Court | Yes | [2010] SGHC 120 | Singapore | Endorsed the view that a scheme of arrangement releasing one joint debtor does not automatically release the other joint debtor. |
| Northern Elevator Manufacturing Sdn Bhd v United Engineers (Singapore) Pte Ltd | Court of Appeal | Yes | [2004] 2 SLR(R) 494 | Singapore | Cited for the principle that an error of law by an arbitrator does not automatically entitle an aggrieved party to appeal. |
| State of Perak v PRALMM Muthukaruppan Chettiar | N/A | Yes | [1938] MLJ 247 | N/A | Cited regarding costs thrown away by reason of an amendment. |
| Choo Ah Kiat v Ang Kim Hock | N/A | Yes | [1983] 2 MLJ xciv | N/A | Cited regarding costs thrown away by reason of an adjournment. |
| Lim Hong Seng v East Coast Medicare Centre Pte Ltd | N/A | Yes | [1994] 3 SLR(R) 680 | N/A | Cited regarding costs thrown away in favour of a defendant who had put up a counterclaim that had to be abandoned. |
13. Applicable Rules
| Rule Name |
|---|
| SIAC Domestic Rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Arbitration Act (Cap 10, 2002 Rev Ed) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Substantial Completion
- Defects Liability Period
- Liquidated Damages
- Retention Clause
- Scheme of Arrangement
- Delay
- Interruption
- Functus Officio
- Contra Charges
- Arbitration
15.2 Keywords
- arbitration
- construction
- delay
- substantial completion
- contract
- Singapore
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Construction Law | 85 |
| Building and Construction Contracts | 80 |
| Arbitration | 75 |
| Contract Law | 70 |
| Sub-Contract | 65 |
| Breach of Contract | 60 |
| Extension of Time | 55 |
| Commercial Litigation | 50 |
| Civil Procedure | 40 |
16. Subjects
- Arbitration
- Construction Dispute
- Contract Law