#10QuestionswithMaxwell Interview Series: Chow Kok Fong, Equitas Chambers
In this #10QuestionsWithMaxwell interview, we feature Chow Kok Fong, Arbitrator, Mediator and Adjudicator at Equitas Chambers. He is also the Founder President of Society of Project Mangers, Singapore and former Chairman of the Society of Construction Law.
Prior to entering a full-time career in arbitration and mediation, Kok Fong had a distinguished corporate career spanning three decades, much of which was spent at the helm of corporate and public entities in real estate, construction and civil aviation entities. He has extensive experience with business in both Asia and Europe, having been participated in some of the widely reported transactions in these markets. Concurrently he also devoted considerable time to support the development of alternative dispute resolution programs in Singapore and abroad.
He is the author or co-author of 19 books on construction economics, joint ventures, construction law and statutory adjudication including the Law and Practice of Construction Contracts (first published in 1988, currently a 2-volume work in the 5th edition); Security of Payment and Construction Adjudication (first published 2005, currently in its 2nd edition); Construction Contracts Dictionary (first published 2006; currently in its 2nd edition) and Halsbury’s Laws (Construction Volume 2019 Re-Issue).
In this interview, he shared what made him switch full-time to ADR practice after three decades of corporate career, the most memorable dispute he had been a part of, advice to young individuals trying to get into ADR, and more.
Read his full interview below:
Q: As an arbitrator, adjudicator and mediator, which method of dispute resolution do you think is the most effective, and why?
A: There are many factors to take into account. If the matter is an intrinsic part of an ongoing commercial relationship, it is useful to think not just of the immediate transactional outcomes but also what follows on after that. Thus, if the opposite party is important for my business, a primary consideration is whether the approach chosen is likely to lead to a result that still enables us to continue to work together. In arbitration, there is always a defeated party. Mediation is helpful where it is possible to achieve an outcome which, as a whole, serves both parties’ interest. In other instances, short and efficient determinative approaches such as adjudication and neutral evaluation may help to move the negotiation process along quickly. It has to be short because you do not want to engage in gaming and posturing. Arbitration is really only appropriate when everything breaks down and parties are indifferent as to whether they are likely to work together again.
Q: Without sacrificing confidentiality, share with us the most memorable dispute you have been a part of.
A: One of my mediation cases involved a company suing a publisher for defamation on account of a reputationally damaging report on the performance of that company. There were plenty of legal grounds to enable each side to run its case to the full extent. The defendant publisher refused an invitation to publish an apology because it considers the published article to constitute fair comment while the plaintiff maintains its claim for a hefty sum of damages. Eventually the deal that was struck consists of the publisher agreeing to run a series of articles focusing on some positive aspects of the performance of the plaintiff.
Q: Virtual and hybrid hearings are becoming the new norm. How has that affected hearing proceedings, in your opinion?
A: To be sure, prior to the onset of the pandemic, video conferencing had already been used. However, with the pandemic, these arrangements are increasingly treated as the default mode of hearing in adjudication and the more urgent arbitrations. Virtual hearings can be very efficient but they are physically strenuous over long sitting hours. In my tribunal work, I set up 3 screens on my working desk. It took me some time to get used to casting my eyes over three screens continually. One downside is that you lose some sense of the dynamics between counsel and witnesses during cross-examination.
Q: What do you think will be the greatest challenge facing the next generation of ADR practitioners?
A: In commercial disputes, we see increasingly matters which require a tribunal to appreciate very technical issues. Many of these matters involve expert evidence. For example, in construction and infrastructure disputes, separate experts may offer evidence on specially focused areas: defects, delays and valuation. The experts bring with them their specialist vocabulary and analytical logic. These are then applied to a project which involves highly engineered processes and so unless one is dealing with these kind of disputes regularly, the reading and getting up time can be demanding.
Q: Could you share some advice to young individuals trying to get into ADR?
A: As with most areas, get a good mentor. A good start is to look for opportunities to work with leading arbitrators as a tribunal secretary or to simply assist a counsel in the conduct of a case. These will provide opportunities to observe, discuss impressions of a matter and participate in the gathering and distilling of the issues and evidence.
Q: You have over three decades of corporate career in the construction and real estate sectors. What made you want to switch full-time to ADR practice?
A: When I left my corporate career, I still maintain a keen interest in following developments in the construction industry, particularly the transformation of construction and consulting firms. ADR provides an interesting way of retaining this connection with businesses. In a sense it gives a person a ring side view of businesses situations. At the end of each case, I try to envisage the effect of the outcome of the ADR proceedings on the business of each of the parties.
Q: Looking back, is there anything that you wish you had done differently in your career?
A: I would have taken my holidays more seriously.
Q: You have published 19 books on construction economics, joint ventures, construction law and statutory adjudication. Which book would you recommend for young lawyers just starting out in their career?
A: I spent two thirds of my working life in the industry itself. Most of my early books did not start out as legal texts but as compilation of lessons learnt while on the job dealing with contractors, employers and consultants. A young lawyer with an interest in this area of practice, might find it useful to read a short introductory book on the construction process to get an overall impression of the subject. Find an opportunity to “walk the construction site”. The doorstoppers can wait until a real problem crops up.
Q: To get to know you better on a personal level, share with us a fun fact about you that not many know about!
A: Rashly agreed to write a restaurant review once for an industry newsletter. Only read sympathetically by my long-suffering friends.
Q: Lastly, what reminds you of Maxwell Chambers?
A: It is an arbitrator’s heaven on earth.