Bankruptcy And Enforcement Of Law In Singapore

Conflicts can arise from a variety of perceived injurious experiences. They occur as individuals or corporations with different interests, goals and perspectives seek to achieve a maximum share of the values which society provides. Conflicts, once they occur, are sometime difficult to resolve. There is, however, a wide range of dispute processing alternatives available in every society to deal with these conflicts. Society and culture tend to influence the kinds of dispute resolution mechanism used. Ethnic and religious groups have historically established their own systems for dispute resolution. The methods of resolution which have been developed had been many and varied, both formal and informal, public and private. They range from physical contests and economic warfare to a variety of more
social processes. The traditional formal method of dispute resolution is adjudication in courts using an adversarial approach in common law jurisdictions.

Since the 1970s new processes which emphasise consensual, informal dispute resolution are being developed as alternatives and supplements to adjudication. These new informal processes bring a pragmatic problem-solving approach to the resolution of disputes. They rely to a greater or lesser degree on negotiation between the parties to achieve a permanent settlement.

In a relatively short span of time, these alternative methods of resolving disputes have generated considerable interest, wide application and academic research first in the United States and now in Australia and also in the United Kingdom. Among other things, increasing concerns over costs, delays, loss of management time and long-term damage to commercial goodwill have encouraged the development of these new options for dispute resolution.

Enforcement of the Law (Civil Judgment)

The process through which a person who is unable to pay his or her debt is recognized to be an insolvent person, whether natural or artificial is known as Bankruptcy. In this situation a  bankruptcy order is made by the court against the person who is not able to repay the debt and who has been declared as an insolvent and where is does not have the capacity of paying off his debt which is not less than $10000. This process is governed through the provisions of the Bankruptcy Act in Singapore (Azmi, Razak and Ahmad 2017).

Enforcement of the law (Civil judgment)

Under the provisions of the legislation a judgment which has been provided by the court has to be enforced within a period of 12 year from the day on which the court has provided the court. In situation where there is a failure on the part of a judgment debtor to meet the judgment which has been provided against him, an execution proceeding against him may be commenced by the judgment creditor against the person. The writ of seizure and sale is the most common way in which execution of the judgment is done. In relation to the provisions of this writ the immovable and movable assets of a judgment debtor are liable to be initially seized and then sold. The judgment debt would therefore be paid through the net proceeds of the sale of such assets. Another option which a judgment creditor has against the debtor is taking out a garnishee proceedings against him. This process of execution is appropriate in situation where information in relation to the bank accounts of the debtor is possessed by the creditor. This information must be of a nature which is useful for garnishing towards the satisfaction of the judgment debt.  A person may also appoint a receiver in this situation (Alexander 2016).

Restrictions

There are certain restrictions which are imposed in a person who has been declared a bankrupt. These restrictions are as follows.

1. A person who has been declared bankrupt is restricted to go out of Singapore and is liable to have his or her passport impounded
2. The person has the restriction of obtaining any loan which is more than $500 without making a restriction of his bankruptcy
3. The person has to pay a part of his income for the purpose or repaying the creditor to the official assignee
4. The person is also restricted to indulge into management of a business of an organization or business
5. The person may also be imposed with the restriction of practicing a specific profession like an accountant or a solicitor and is also not allowed to be a member of the parliament

The person can officially be declared to be out of the position of bankruptcy in situation where the person has repaid all his debt

It is upon the discretion of the court to discharge the position of bankruptcy imposed in a person conditionally or totally. A certificate of discharge may be granted by the official assignee after three years have passed and the amount of debt is now lower than $500,000. However this action is based in discretion.

Restrictions

The person who has been adjudged as a bankrupt can make an application under the provision of section 123 of the BA for the purpose of annulment of the bankruptcy through filing of a summon which is provided support through an affidavit. In the affidavit the reason why the order should be annulled has to be provided. It is upon the discretion of the court to make an order based on the merit of the application.  In addition the person has the right to make an application under section 123A and 95A in order apply for certificate of annulment from the Official Assignee.

There are a few differences between a discharge and annulment of a bankruptcy order. When it comes to annulment a bankruptcy order against the person is cancelled. This restores the position of the person which he would have been where there was no bankruptcy order made against him. On the other hand the effects of a discharge are not the same. However it has to be noted that where any disposal has been made by the Official Assignee in relation to disposal of property or assets before the bankruptcy order is annulled, the order will not be reserved and remain valid. Any other asset or property which had not been disposed of before the annulment of the bankruptcy the order against the person is will be returned. Prior to annulment of bankruptcy the person will have the liability of any debt which have not be duly paid off (Yeo and Gan 2016.).

The high court has been provided the right under this scheme to refer a debtor who has debts of less than $100,000 when a application of bankruptcy is made to the Insolvency and Public Trustee’s Office (IPTO) for the purpose of consideration under the scheme. A debtor who being employed earns a regular income would have the right to avoid bankruptcy if it is deemed fit under the scheme (Tu and Li 2015).

The introduction of the Security of Payment Act 2004 (the SOPA) had been done by the parliament in order to address the problems of the sub-contractors in relation to the building and finance industry. The purpose of the legislation is to ensure a smooth cash flow and providing effective and quick remedy to sub-contractors in the industry (Todd and Ezeani 2016).

A controversial concept of common law is expressly abrogated by the legislation which states “argue now, pay later” and provides a replacement which states “pay now, argue later”. This is done by giving statutory rights to a person to make him entitled to payment claims.  A party who has executed a construction work has the right to provide a payment in relation to a month of work with respect to the time provided in the construction contract. Where no such provisions are provided in relation to “such time as may be prescribed” that the claim shall be served by the party by the last day of each month following the month in which the contract is made”. The claimant has the right to make a claim in relation to the provisions of the Act.  This includes all cost which comes out of the construction contract in addition it incorporates preliminary and prolongation cost of delayed work and final and progress claims. The adjudication process is triggered when a valid payment claim is served on the party liable to make a progress payment” under section 2 of the Act.

Security of Payment Act

One a claim gas been served it is the duty of the respondent is provide a valid payment response to the claimant with respect to the date provided in the construction contract and where there is no specified date within a period of seven days of receiving the payment claim. Why the payment has been withheld has to be provided through the response. If it is not done so it would be deemed that adjudication order on the Payment Claim has been conceded by the respondent (Lim 2014).

Section 11(1) gives the time within which the respondent has to provide a response in relation to the claim. The section also provides a few additional consequences such as the creation of a dispute settlement period. Under section 13 of the act the entitlement of adjudication application made by the claimant is triggered in case the claimant is not provided with the amount mentioned in the response within the due date or the response provided by the respondent is disputed by the claimant.

The claimant with respect to the failure under section 11 and 13 has the right to make an application for adjudication to “authorized nominating body”. The following conditions have to be satisfied in order to make claim.

A notice in writing has to be served by the claimant which contains prescribe particulars before filing the adjudication with the nominated body. The notice is to let the respondent know about the intention of filing the process by the claimant.

Within 7 days n adjudication application has to be made by the claimant with the SMC after he is entitled under section 12 of the Act

The claimant has to make a written application to the authorised nominated body, where he would request to make the appointment of the adjudicator along with prescribed information and documents.  He can also apply to the adjudicator to make changes in the application.

The claimant also has to pay the application fee which is determined by the authorised nominated body, upon application along with any information or document which is deemed necessary. The authorised nominated body, shall notify the clamant and the respondent about the initiation of the process (Burr 2017).

Thus these steps have to be followed by Bui Gong Pte Ltd in order to recover payment from the main contractor through an adjudication process under the Act.

For the purpose of the constriction company the organization structure which has been selected is the Matrix organization Structure.  This is a permanent organization structure which is designed for the purpose of achieving specified outcomes through the use of teams comprising of specialist belonging to different areas of functions within the organization. The primary feature of the structure is that it overlays a horizontal set of divisions along with reporting relationships into a functional structure which is hierarchical in nature (Carlton and Perloff 2015). This structure has been selected because the construction company would require bringing together the different areas of function in order to indulge in construction of bridges and overlaying of roads.

Organizational Structure

1. Decision making is decentralized through the use of the structure
2. The structure provides for strong product as well as project co-ordination
3. Environmental monitoring is enhanced by the structure and it is also fast to changes and flexible to resources

The primary disadvantage of structure is that

1. The cost of administration is the structure is high
2. There are potential for a confusion in relation to responsibility and authority (Cummings and Worley 2014)

Strategy

A company’s strategic plan depends highly on their way to approach organizational tailors. These plans are followed through the company’s point of view, and resulting which produces the desired outcome. Fulfilling the vision requires proper strategy, and the efforts are required to be supported by the organizational structure. Restructured structural designs are seen when there is any change in strategy.

Environment

The organizational designers cannot ignore the employees which are present within the business Environment. As the change in the environment is erratic it requires adaptability, interdepartmental cooperation and also elasticity. Horizontal and organic structure can be build by the designers instead, which would gradually flatten organization levels and also decentralize decision making. Meanwhile, a stable environment allows for the controls.

Generally, an overlapping of roles is experienced in diminutive businesses having a few persons, who will not behave formally or even write a set of regulations. Great organizations require oversight and control. The operations can be broken down by some unnecessary bureaucracy, accountability and responsibility is created by mechanistic structure which is appropriate for company with a large number of workers.

Flexibility and responsiveness can be encouraged by organic structural characters which are present in small company in their beginning of establishment. Later, when the company grows it adds rules, procedures and policies and even command chains. That is, maturity brings up bureaucracy in the system. There is a least chance of bureaucracy becoming unwieldy in older companies, which brings a obstruction to modernization.

Structural Designs

Structural designs are needed to be considered by the designers carefully, because they seem to have pro’s and con’s as well. The two of the most ordinary structure present are divisional and functional structures. Departments are created according to business activities in functional structure, like production. Meanwhile, in divisional structure persons put in according to geography and product. This results the division to be responsive (Burke 2017).

References 

Alexander, K.H., 2016. Guidelines to New Chapter 15 Forms. Insolvency & Restructuring Int'l, 10, p.22.

Ashkenas, R., Ulrich, D., Jick, T. and Kerr, S., 2015. The boundaryless organization: Breaking the chains of organizational structure. John Wiley & Sons.

Azmi, R., Razak, A.A. and Ahmad, S.N.S., 2017, November. Debts Repayment Scheme and Debts Repayment Plan in Singapore and Malaysia: A Legal Overview. In International Research Symposium Series (IRSS) (p. 61).

Burke, W.W., 2017. Organization change: Theory and practice. Sage Publications.

Burr, A. ed., 2017. International Contractual and Statutory Adjudication. Taylor & Francis.

Carlton, D.W. and Perloff, J.M., 2015. Modern industrial organization. Pearson Higher Ed.

Cummings, T.G. and Worley, C.G., 2014. Organization development and change. Cengage learning.

Lim, P., 2014. Proposed Reform for Singapore’s 2004 Building and Construction Industry Security of Payment Act. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 7(1), p.A5014001.

Todd, N. and Ezeani, E.C., 2016. Adjudication costs under the Housing Grants, Construction and Regeneration Act 1996: the attractions of Singapore's Building and Construction Industry Security of Payment Act 2004.

Tu, G. and Li, X., 2015. The Chinese Approach Toward Cross?Border Bankruptcy Proceedings: One Progressive Step Ahead. International Insolvency Review, 24(1), pp.57-66.

Yeo, V. and Gan, P., 2016. Insolvency Law in Singapore. Insolvency Law in East Asia, 375, p.420.