CONTRACT AND

DISPUTE RESOLUTION
COMMITTEE

CDR HANDBOOK

2010
 FOR THE USE OF ARCHITECTS

IN

THE HONG KONG CONSTRUCTION INDUSTRY

 Author

Simon Wai Hung, Chee

Registered Architect (HK & PRC Class 1)
Authorized Person (Architect)
Arbitrator, Mediator, Expert Witness, Dispute Resolution Advisor
BA(AS) BArch MAArbDR LLM(Distinction)
HKIA RIBA RAIA HKCAC HKIArb HKIAC ADRIO

Editorial Board

Edward, Shen (CDRC Chairman)

Registered Architect (HK & PRC Class 1)
Authorized Person (List of Architects)
Arbitrator, Expert Witness
BArch (Magna Cum Laude)
FHKIA RIBA RAIC OAA Associate AIA MCIArc

Wilson Wai Pan, Lam (also cover design)

Registered Architect
Authorized Person (Architect)
Accredited Mediator
BA(AS) B.Arch(Distinction) MBA MSc(Fin)
MSc(Const. & Econ) LLM(Arb&DR)
HKIA RIBA MAPM MCIArb AHKIArb

Published in 2010 by
The Hong Kong Institute of Architects
Contract and Dispute Resolution Committee

© All rights reserved.

No part of this publication may be reproduced, copied, translated, broadcasted or
transmitted in any form or by any means, or stored in any retrieval system of
any nature without prior written permission of the publisher and the author.

For HKIA Members. NOT FOR SALE

FOREWORD BY THE HKIA PRESIDENT

On behalf of the Hong Kong Institute of Architects, I would

like to convey my deepest appreciation to the Contract and
Dispute Resolution Committee for their effort to compile this
Handbook which caters for the comprehensive reference by
our members.

The Hong Kong Institute of Architects supports

the professional development of our members in the arena of
dispute resolution, apart from their practice in
architecture. This is only the beginning of a professional
journey for architects and the Institute is committed to
provide a platform to facilitate experience sharing among
professionals.

Anna SY KWONG, MH, FHKIA

President

i
FOREWORD BY THE CONTRACT AND DISPUTE
RESOLUTION COMMITTEE CHAIRMAN

The CDRC is a relatively young committee amongst all the

numerous committees and subcommittees under the six HKIA
Boards. Nevertheless the committee has a very well-focused
purpose run by a dedicated group of members, all of whom
share a common and earnest interest in dispute resolution
mechanisms applicable to the construction industry.

When I took over the chairmanship over 3 years ago from Dr.
Edwin Chan, the CDRC had two major functions then. It
represented the HKIA at the Joint Dispute Resolution
Committee (JDRC), and the Joint Form of Contract Committee
(JFCC) that are both long standing working committees set up
by the HKIA and HKIS to monitor and keep abreast with all
dispute resolution matters of our industry, to maintain a Joint
Panel of HKIA/HKIS Arbitrators, and for the editing and
updating of the Standard Building Contract for use in Hong
Kong. For a few times each year, the CDRC would organize
seminars and invite speakers to acquaint our members with
industry standards in dispute resolution mechanisms, the
emphasis a few years ago was in arbitration only.

The last and current term of the CDRC saw us picked up a

number of new topics of interest as we tracked and toed the
most up to date development in the industry.

Firstly, we have introduced a HKIA List of Expert Witness for

our members who have completed a 5-lecture course
organized by the CDRC on understanding how to be an expert
witness. On another front, mediation is fast becoming a
dominant phenomenon in today’s judicial system. Since
mediation although not mandatory by law but parties in
disputes are now positively encouraged to engage mediation
under the Practice Direction 31 issued by the Judiciary,
various industry stake holders are scrambling to pick up the
new generated work. HKIA, with seven other professional
bodies, have set up a non-profit making organization called

ii
Joint Mediation Helpline Office Ltd. (JMHO) to promote the
use of mediation as a means of dispute resolution in Hong
Kong. The JMHO is prestigiously located in the Queensway
Highcourt Building and has started operations about 2
months ago to take in cases for mediation. All the eight
member institutes referred to as Participating Service
Providers (PSP)s take turn to provide their qualified mediators.
Consequently you will now find a List of HKIA Mediators being
administered by the CDRC also. More mediation cases in
connection with the building industry are expected to come
this way by end of the year when JMHO agrees with
Government’s Development Bureau to take on mediation
cases for the “Compulsory Sale” legislation recently put into
effect.

As if this is not enough commitment and work for the CDRC,

the Committee’s energetic group of members undertook this
year to review the HKIA’s disciplinary proceedings in the
administration and enforcement of the Code of Professional
Conduct with a view to render the system more user friendly
and efficient as well as to set a high professional standard and
reputation in our service to the public.

This Handbook that will be published under the name of the

CDRC, is the joint effort of all the committee members with
the aim to share our knowledge and experience with all HKIA
members and hopefully we can generate more interest
among our members in the field of dispute resolution as
being an optional career path for architects. Special thanks
have to go to our members, Simon Chee and Wilson Lam for
the tremendous amount of time and effort they have
contributed to the realization of this Handbook.

Edward Shen
Chairman, Contract and Dispute Resolution Committee

iii
FOREWORD BY THE AUTHOR, CHIEF EDITOR

Having witnessed the changes in the Hong Kong society, the

general economy and construction market, the development
trend of the HKSAR Government and in major jurisdictions
around the world in the last decade, dispute prevention and
resolution have become one major and important global and
local concerns. Within our reach, it comes about not just at
policy level for the striking of harmonious society so
promoted by the PRC President Hu JinTao in his December 31,
2006 New Year Statement, but also reflected in the HKSAR
Chief Executive Mr. Donald Tsang’s 2007-8 Policy Address to
“alleviate conflicts and foster harmony”, as well as the
promotions of the Chief Justice Mr. Wong Yan Lung in many
occasions. Equally and practically valid is it at industrial level
where well-versed operatives and harmonious operations
among different members of project team can give rise to
much improved yield and return of investment for every
stakeholder in which construction industry is no exception.

Architect’s Role in Construction Dispute Prevention and

Resolution

In Hong Kong, in inheriting the British system of practice, the

architectural profession has maintained its market position to
be taken and respected as the prime consultant and leader of
the project team, which is normally composed of numerous
and different parties from developers to government
departments, consultants of other disciplines as well as
contractors at all levels. Architects have often been looked
upon as the best, single, neutral, independent and capable
third party to uphold the contractual interests in mutuality
between the Employer and the Main Contractor under the
main contract. With his doubled role when acting as the
Authorized Person of projects, architects are entrusted as the
most knowledgeable and capable professionals with regard to
the applicable building laws and statutory requirements to

iv
projects. His professional terms of reference covers project’s
administrative and technical aspects, supervising
performances of different parties’ contractual duties and
responsibilities, rights and obligations, procedures and
process, quality and standards that are all essential and
important ingredients of every construction and professional
contract the proper conducting of which is crucial to the
projects’ success.

Furthermore, his/her practical understandings and knowhow

to the delivery of innovative designs have been giving birth to
realization of what would otherwise be just creative ideas on
papers. This unique position in the construction industry has
indeed brought in high esteem to act professionally in a
sound, independent, neutral, impartial, technically and
administratively capable as well as legally proficient manner,
all of which render him/her to become the natural person to
be further entrusted to resolve construction disputes.

Under the HKIA’s professional qualification programme,

indeed, architects are indeed expected to act as a quasi-
arbitrator in case of differences and conflicts arising from the
main contract he/she is serving. There are in many other
instances that architects are considered as the better
candidates than other construction or legal professionals to
undertake the important and credible position of the neutral
third party to help resolve construction disputes such as
acting as arbitrator, mediator or expert witness.

Prevalent Dispute Prevention and Resolution Systems

Among the prevalent dispute systems, they can be

categorized into “dispute preventive systems” and “dispute
resolution systems”. For the latter, it can be further
categorized into “right-based” and “interest-based”
approaches though there is no definite rule to determine
which one leads to better results as to fairness, mutual
acceptability or enforcement.

v
On the front of dispute prevention system, a well drafted
contract always serves as a good starting point, and its proper
handling by expedient professionals like architects comes
second. Prior to the arising of contractual differences or
conflicts, which are practically inevitable in construction
throughout history and across every different legal regime
and culture, architects have professed duties as contract
administrators or quasi-arbitrators to resolve before they turn
into disputes or even escalated to Disputes. In the last
decade, unique in Hong Kong, the Architectural Services
Department (ArchSD) has developed the Dispute Resolution
Advisor (DRAd) system serving particularly this front, and has
been going well and adopted among most ArchSD’s as well as
Housing Authority’s works contracts.

On the front of dispute resolution system, the “right-based”

sector is principally comprised of formal, binding ones such as
litigation and arbitration, and the less popular ones like
adjudication, dispute resolution board, expert determination
and so on. In Hong Kong where the development of dispute
resolution industry is still at its infancy, litigation and
arbitration predominate while the construction industry has
adopted the latter as the main avenue for resolving
construction dispute. This is evidential in all HKSAR
Government construction contracts since 1980s and the
HKIA’s Standard Form of Building Contracts 1999 and 2005
Editions. Adjudication, on the other hand, is mandatory and
well developed in United Kingdom under the Housing Grant,
Construction Regeneration Act in 1996 for its construction
industry. While it is noted that HKSAR Government has been
following this up to evaluate on its suitability to be adopted
for the local applications, its emphasis has been currently on a
more interest-based approach - mediation.

Mediation has been one of the more popular alternative

dispute resolution processes adopted in many parts of the
world for over 30 years. In Hong Kong, its appearance can be
found first in the Government’s construction contracts since

vi
1988 and in Hong Kong Cap. 341 Arbitration Ordinance. A
relatively more evaluative than facilitative cousin known as
conciliation has also been statutory founded as one version of
mediation in the Ordinance. As such, mediation has been
taken as a possible ramification by law during arbitral process,
which is principally right-based, whereby parties (and
arbitrators) somehow can work their disputes out to
settlement in a different, interest-based manner. The
settlement agreement so formed during this mediation
process can then be transformed into consent award at the
will of the parties of the arbitral process and become final,
binding and legally enforceable.

Since the 2007 Chief Executive’s addresses followed by the

various actions of the Chief Justice and the Judiciary,
tremendous efforts have been witnessed from the
government to promote mediation as the first and foremost
frontier across all types of disputes before going into court
through the followings:-

i. The promulgation of Practice Direction 6.3 on September

1, 2006 followed by prevalent Practice Direction 6.1 on
February 21, 2009 for “mandatory” mediation for
construction cases with cost sanction;

ii. The promulgation of Practice Direction 31 on February 12,

2009 with commencement of practice starting January 1,
2010 for region-wide pre-court “mandatory” mediation,
too, with cost sanction;

iii. Initiation of “Mediate-First Pledge” in April 2009 where

over 69 companies and 40 trade organizations or
associations have signed up already;
iv. June 2009 promotion of the first draft of the voluntary
Hong Kong Mediation Code with Agreement to Mediate
to May 2010 where over 23 major mediation services
providers adopting such Code including HKIA for
mediation practices;

vii
v. Publication on February 8, 2010 of the “DOJ Report of the
Working Group on Mediation” with 48 Recommendations
for region-wide development followed at the same time
by a 3-month open consultation; and so on.

HKIA’s Role and Participation in Dispute Resolution

HKIA jointly with HKIS and HKIPM incorporated the provision

of mediation under Section 41 in the Agreement & Schedule
of Conditions of Building Contract in 2005. In the DOJ’s
“Report of the Working Group on Mediation” in February
2010 with 48 recommendations to promote mediation as the
region-wide major dispute resolution process out of court, it
carries with the government supports in the fostering of
university education to develop the next generation for the
mediation. It also comes with the idea to establish mediation
centres for the use of mediation service providers, and to
develop a brand new Mediation Ordinance as well as a single
accreditation body with regulatory control over mediator’s
practices as to lay down the foundation stone of confidence
to mediation users in the society. At the same time, it stated
that mediation in construction has been well developed in the
last 20 years without depicting the differences between the
public and private sectors. And yet, for the latter, mediation
is still very fresh to be familiarized and considered.

As already mentioned, architects have already been

recognized by the construction industry as well as the society
as the unique building professionals having definite
professional competence, neutrality, impartiality and
independence. Many a time he/she may be invited to act as
experts or even expert witness in litigation and arbitration
where these qualities are taken as essential to assist court
judges and arbitrators to better understand the cases before
them. HKIA recognizes this extended role of its members and
organized expert witness training course since 2007.

viii
At present, HKIA has established and maintains its List of
Arbitrators, Mediators and Expert Witness that are available
on website for deployment by members of the public as and
when needed. The HKIA Lists of Arbitrators and Mediators,
together with the Lists of Arbitrators and Mediators held by
the HKIA/HKIS Joint Dispute Resolution Committee (JDRC), are
serving the calls under the relevant dispute resolution clauses
in the HKIA/HKIS Standard Forms of Building Contracts (1999
and 2005 Edition).

In addition, the HKIA List of Mediators is also responding to

requests from the Joint Mediation Helpline Office (JMHO).
JMHO was formed and inaugurated in May 2010 by the 8
prevalent mediation service providers, namely, the Hong
Kong Institute of Arbitrators, Chartered Institutes of
Arbitrators (East Asia Chapter), Hong Kong International
Arbitration Centre com Hong Kong Mediation Council, Hong
Kong Mediation Centre, Hong Kong Bar Association, Hong
Kong Law Society, and Hong Kong Institute of Surveyors and
our Hong Kong Institute of Architects. Each of the 8
constituents holds equal directorship to serve with the
support of the Judiciary and Department of Justice under the
Practice Direction 31 and as requested by other government
department such as the Development Bureau.

Through the Contract and Dispute Resolution Committee

(CDRC) of the Board of Practice, HKIA has been following up
with the development of dispute resolution in the market and,
in particular, in the construction industry and architectural
practices in the past decade. The architectural profession has
indeed come to a turning point of sophistication and
ramification where a HKIA member may be:-

i. serving to administer the building and professional

contract where dispute resolution clauses are to be
drafted and initiated;

ix
ii. requested to provide the service of acting as
arbitrator, mediator, expert witness, dispute
resolution advisor, and other pertinent roles for some
independent disputes;

iii. involved as a disputant him/herself where arbitration,

mediation, and other Alternative Dispute Resolutions
(ADRs) have been specified for in their service
contracts;

iv. invited to write in his professional capacity articles in

relation to construction disputes, etc.

It is now the right moment for the CDRC of HKIA to start

deployment of knowledge and knowhow on these particular
aspects of construction dispute prevention and resolution
upon which this CDRC Dispute Handbook is organized and
aimed to serve.

Purpose of this Handbook

This Handbook is designed as a concise reference for HKIA

members about their professional practices on dispute
matters based on the prevalent construction related dispute
prevention and resolution practices for both application in the
private and public sector. Its coverage spans across the
principle dispute resolution clauses, the pertinent dispute
prevention and resolution systems and rules, and the
established frameworks of the HKIA dispute resolution
professionals’ listings. It is hoped that HKIA members can
make use of this Handbook whenever they come across any
pertinent matters in their professional service as well as in
further professional pursuance to extend their competence
towards dispute prevention and resolution.

It is further hoped that, through the conducting of continually

improved professional architectural services at higher
standards and competence, ultimately, the HKIA Code of

x
Professional Conduct whereupon all HKIA members must
serve and uphold, will be achieved at even higher level of
attainment together with the elevation of professional
recognition by the market and customers whom we serve.

I am in debt to the CDRC Chairman, Mr. Edward Shen on his

affirmative acceptance of my idea to publish this Handbook in
January 2010 CDRC year-start meeting, and his continual
encouragement and participation throughout to bring it to life.

Tremendous thanks are given to the dedicated efforts of Mr.

Wilson Wai Pan, Lam whose intensive proofreading of drafts,
great suggestions, and the beautifully designed book covers
that make this Handbook as good as it deserves.

My deepest gratitude goes to our President, Ms Anna Kwong

whose positive recognition on the works of the CDRC and the
publication of this Handbook, as well as her strong and clear
message to all HKIA members that Dispute Prevention and
Resolution has become an important extended area of
professional practices and development of the era for fellow
Architects.

Simon Wai Hung, CHEE

xi
CONTENTS

A PREFACE 1

B PREVALENT DISPUTE RESOLUTION

SYSTEMS

1. Arbitration 7

2. Mediation 17

3. Expert Witness 25

4. Dispute Resolution Advisor 28

C HKIA CODE OF PROFESSIONAL CONDUCT 32

D PREVALENT DISPUTE RESOLUTION

CLAUSES

1. HKIA Standard Dispute Resolution Clauses

a. Agreement and Schedule of Conditions of 42
Building Contract (2005 edition) Clause 41

b. Agreement and Schedule of Conditions of 47

Building Contract (1999 edition) Clause 35

2. Modeled Dispute Resolution Clause in 49

Government Construction Contracts

E PREVELANT DISPUTE RESOLUTION RULES

1. Hong Kong Mediation Code and 54
Agreement to Mediate (by Department of 57
Justice)

2. Hong Kong International Arbitration Centre 64

Domestic Arbitration Rules 1993
CONTENTS

E PREVELANT DISPUTE RESOLUTION RULES (cont’d)

3. Hong Kong International Arbitration 81

Centre Mediation Rules 1999

4. HKSAR Government Construction 88

Mediation Rule 1999

HKSAR Government Administration 92

Guidelines for Mediation in Construction
Disputes

F HKIA DISPUTE RESOLUTION PROFESSIONALS

1. HKIA List of Arbitrators 99

2. HKIA List of Mediators 100

3. HKIA List of Expert Witness 101

4. Road Path to HKIA List of Arbitrators 102

5. Road Path to HKIA List of Mediators 104

6. Road Path to HKIA List of Expert Witness 106

G Useful Links 107

H HKIA Contract and Dispute Resolution 109

Committee (CDRC)

2
A. PREFACE
A. PREFACE

This Handbook is organized to provide HKIA members as well

as other architectural practices in Hong Kong a single source
of reference on construction dispute prevention and
resolution prevalent in the Hong Kong construction industry.
It engulfs the principles of the major dispute systems, the
applicable rules over them when they are initiated, the
pertinent governmental frameworks, and the present state of
play of HKIA via the Contract and Dispute Resolution
Committee (CDRC) under the Board of Practice.

To avoid voluminous production that may devoid the purpose

of being a Handbook, only the most essential contexts are
included. Useful links are also contained for those who may
find interests and needs to look into the subject matter in
details. Members may also liaise with HKIA or any member of
the CDRC for further enquiries.

Starting in Section B, this Handbook outlines the most

prevalent dispute systems, namely, arbitration, mediation,
dispute resolution advisor (DRAd) and expert witness that are
the most generally adopted practices in the Hong Kong
construction industry. The purpose is to foster the gravity of
importance of these prevalent practices that are prudent to
the proficient practice of the architectural profession
whereby HKIA members’ attentions are particularly drawn.

Following after in Section C is the reiteration of the HKIA Code

of Professional Conduct where reflections can be made in
conjunction with the outlined dispute preventive and
resolution systems in Section B.

Section D puts handy reference to the standard dispute

resolution clauses as stipulated in the HKIA standard
Agreement and Schedule of Conditions of Building Contract

2
1999 Edition (Clause 35) and HKIA/HKIS/HKIPM standard
Agreement and Schedule of Conditions of Building Contract
2005 Edition (Clause 41) that are commonly employed in the
private market. The section also includes a modeled standard
dispute resolution clause that is prevalent in many types of
HKSAR Government’s construction contracts listed as
follows:- (GCC – General Conditions of Contract)

- GCC for Term Contracts for Building Works 1988

Clause 92 (no mediation provision)
- GCC for Term Contracts for E&M Engineering Works 1994
Clause 89(1)
- GCC for Design and Build Contracts 1999
Clause 86(4)
- GCC for Building Works 1999
Clause 86(1)
- GCC for Civil Engineering Works 1999
Clause 86(1)
- GCC for E&M Engineering Works 1999
Clause 86(1)
- Sub-Contract for Building Works 2000
Clause 33(1)
- GCC for Term Contracts for Civil Engineering Works 2002
Clause 89(1)
- GCC for Term Contracts for E&M Engineering Works 2007
Clause 89(1)

This arrangement aims to put the differences in approaches,

processes and procedures of dispute prevention and
resolution in juxtaposition between the public works
contracts where public funds are at stakes, and the private
works contracts in parallel exhibition. This will offer
facilitated benefits to those architectural practices that offer
service to both the public and private sector and to HKIA
members who may be interested in reviewing these dispute
systems in the bigger picture.

3
Following after in Section E, relevant prevalent rules for
arbitration and mediation practices together with the Hong
Kong Mediation Code are excerpted which are important
extension to observance and compliance in the exercise of
the dispute resolution clauses contained in construction
contracts.

Dispute resolution clauses, if contained in contracts, are well

taken as a contract within the main contract whereby the
failing of the main contracts will NOT put to jeopardy or
invalidity of the dispute resolution clauses under the legal
principle of separability. While dispute resolution clauses are
free to be drafted and agreed among parties, well-drafted
ones will contain important elements such as:

(i) appointment procedure for the third party neutral,

(ii) rules upon which the dispute resolution processes are

to adhere to, and

(iii) the applicable procedural law in case of arbitration.

In another words, without putting in the full context of the

prevalent dispute resolution rules, a clear and specific
expression of reference to one or some of these rules in the
dispute resolution clause may suffice.

With respect to legal references, when the dispute resolution

clauses specify for arbitration, it shall be conducted under the
HK Cap. 341 Arbitration Ordinance. As the legislation of
Mediation Ordinance is still beyond sight, when mediation is
specified in the dispute resolution clauses, the closest
legitimate reference applicable to HKIA’s mediation will be
the Hong Kong Mediation Code. It was drafted and deployed
by the Department of Justice in June, 2001 and adopted by
HKIA in June, 2010 for all mediation conducted by its listed
mediators.

4
Section F lists out the present status of establishment of
HKIA’s List of Arbitrators, List of Mediators and List of Expert
Witnesses. It also depicts the respective requirements to be
listed for HKIA interested members who may be interested to
further develop their professional capabilities to also serve in
resolving construction disputes under the pertinent dispute
prevention and resolution systems.

As this Handbook only intends to provide a concise landscape

of pertinent construction dispute prevention and resolution
system prevalent in Hong Kong, Section G provides useful
links for interested readers who may select to retrieve
additional market information in order to procure a fuller
picture on the overall development stances in the field of
dispute systems.

Last but not the least, Section H introduces to readers the

terms of reference and members of the HKIA Contract and
Dispute Resolution Committee, a dedicated group under the
Board of Practice having professed focus to the betterment of
professional architectural practices via promotion of good
contract as well as dispute prevention and resolution
practices.

5
B. PREVALENT DISPUTE RESOLUTION SYSTEMS

6
B1. ARBITRATION

Arbitration is a private, legally recognized and enforceable,

right-based, final and binding dispute resolution process to
promote the conduct of justice outside court. The decision of
an arbitral proceeding, which is known as an arbitral award,
as well as the order and direction so made by the arbitral
tribunal during the process, is enforceable in the same way as
a judgment, order or direction of a Court1. Hence, the results
of arbitration are final and binding, only subject to judicial
review on question of law 2 . Once the parties adopt
arbitration in their contract to be the dispute resolution
process of contract disputes, they at the same time forsake
the avenue to court for case adjudication. Court intervention
to arbitral process will be minimal and normally only limited
to the procedural conduct of the arbitral tribunal and the
endorsement of arbitral award to become a judgment for
enforcement purpose.

Different from litigation which is often conducted in open

court, features of arbitration are:-

1. Party Autonomy. Parties are free to agree on the

number of arbitrators forming the arbitral tribunal,
and the process to have these arbitrators appointed
in the dispute resolution clauses. They are also free
to adopt the substantive law applicable to the
potential or existing disputes based upon which the
merits of the issues are determined. The seat of
arbitration, often referring to where the arbitration
actually takes place, are also up to the determination
of the parties that, once the seat is determined, the
pertinent local arbitration law shall automatically
become the applicable procedural law of the arbitral

1
HK Cap. 341 Section 2GG.
2
Ibid Section 23

7
 proceeding. Sometimes, the actual place of
arbitration may vary from the specified seat while the
applicable procedural law shall remain referring to
the expressed choice of seat. The parties may also
determine the arbitration procedures, though, in case
when this is not specified, the arbitrator shall
determine so 3 to fulfill the purpose of arbitration
which is to “facilitate the fair and speedy resolution of
disputes .. without unnecessary expenses4”.

2. Flexibility. Instead of having court judge(s) to be

assigned by the Judiciary who may or may not be
expedient on one’s case specialties, parties are free to
choose and nominate their preferred arbitrator(s)
having specialized knowledge to serve their case for
the agreement of the other. Some court features, like
legal representation5 and the rule of evidence6, are
not mandatory in arbitration. Parties can represent
themselves or have somebody they are confident
with for the purpose. In larger construction cases, it
is also true that in practice, most parties have lawyers
and counsels participating in their case preparation as
well as throughout the hearing. Depending on the
sizes and complications of the case, parties may even
choose to adopt “document-only” arbitral process
whereby time and cost for hearing of evidence and so
forth can be saved. As already mentioned, when the
parties give no expressed choices of process, the
arbitrator has the power and flexibility to decide
appropriately the suitable process and procedures in
which the case before him can be settled efficiently
and cost effectively7. Likewise, while arbitration itself
3
Ibid Section 2GA and 2GB
4
Ibid Section 2AA
5
Ibid Section 2F
6
Ibid Section 2GA
7
Ibid Section 2GA and 2GB

8
 is a procedure-control process whereby the proper
conduct of which has been entrusted to be able to
deliver a suitable settlement to the disputes under
the traditional adversarial approach of courtroom
justice, arbitrators are also empowered to use the
method he/she thinks fit to serve his/her duties in an
inquisitorial manner to retrieve the substantive facts
that he/she considers essential to determine the case.

3. Jurisdictions and Laws. By nature, arbitration derives

its jurisdiction out of the dispute resolution clauses
agreed between the parties, even has the
competence to determine its own legal competence
under the principle of comptenze-competence 8 .
Along the same line, arbitration has been supported
by local legal regimes of most countries and, in
particular, those partied to the New York Convention
1958 and the UNCITRAL Model Law on International
Commercial Arbitration 1985 amended in 2006 (the
UNCITRAL ML)9 that when arbitration is specified in
the dispute resolution of a contract, court jurisdiction
shall cease with minor exceptions that are different in
different countries. In Hong Kong which is party to
the New York Convention via PRC after the 1997
handing over and has adopted UNCITRAL ML in the
current Ordinance, court intervention has been
reduced to the matter of law10. When the jurisdiction
of the arbitral tribunal is put to challenge, the tribunal

8
Ibid Section 13B
9
The UNCITRAL Model Law on International Commercial Arbitration in itself
is actually not a law but a ‘model law’ established by the United Nations
Commission on International Trade Law to be considered for adoption as
part of the local legislature.
10
See also HK Cap. 341 Arbitration Ordinance Section 2GC, 2GG, 6, 6B, 7, 23,
23A, 23B, 23C, 24, 25, 26 and 27 and the UNCITRAL Model Law Article 5,
6, 8, 9, 11, 13, 14, 16, 27, 34, 35, and 36 on the powers of support and
limited intervention by court over arbitration award and proceedings.

9
 itself are vested with the legal authority to determine
its own jurisdiction under the legal principle of
competenze-competence.

Under the HK Cap. 341 Arbitration Ordinance, which

is a procedural law governing all arbitral processes
that have specified Hong Kong as their seats of
arbitration, there defines two different categories of
arbitration prevailing in Hong Kong namely domestic
ones and international ones. While the law
recognizes the common goal of arbitration common
to all natures of disputes, ie, for speedy and cost
effective settlement, it also recognizes different
commercial settings between local practices and
international practices. In brief, under the domestic
regime, the Ordinance provides avenues for court
supports to the parties or arbitrators in case of needs,
and provide some specific features to local disputes
via arbitration including:-

- single arbitrator in case the dispute resolution

clause does not specify so11;

- consolidation of multiple arbitration proceedings

of related parties with inter-related issues to be
resolved for the purpose of consistency and
arbitration costs; and so on12.

On the front of international arbitration, the

Ordinance by large adopts the UNCITRAL ML as part
of itself aimed to serve the international community
on two platforms. First, Hong Kong being an
international city where international investments
and business activities are everyday things, the

11
HK Cap. 341 Section 8.
12
Ibid Section 6B

10
 international regime will certainly provide a better
avenue to resolve disputes that has international
elements, which is defined and to be determined
under Section 34C of the Ordinance. Secondly, there
has been an ongoing policy to develop Hong Kong as
one of the main arbitration centres globally. This is
particularly eminent in the last decade with the
Government via Department of Justice which drafted
the Arbitration Bill and have it promoted locally and
international. The main feature of the Bill is to
combine the prevalent domestic and international
legal frameworks under the Ordinance into a unitary
regime which is by large founded upon the UNCITRAL
ML. Some residual domestic features shall become
opt-in / opt-out provisions to be selected by the
market for a period of 6 years after its enactment. It
is anticipated that the Bill will go through its Second
Reading and probably be passed by the Legislative
Council in the mid 2011 to be our new law.

4. Rules. In terms of legal framework which manifests

the purpose, objects and principle conduct of
arbitrators, rules are established by various
arbitration practicing organizations locally and
internationally for application into cases of different
natures. These rules, when specifically expressed in
the dispute resolution clauses, become extensions to
the main contracts and are to be followed as straight
terms. In the international arena, the two popular
and most applicable arbitration rules in Hong Kong
would be the International Chamber of Commerce
(ICC) Rules of Arbitration established in 1998 and the
Hong Kong International Arbitration Centre (HKIAC)
Administered Arbitration Rules 2008. For domestic
disputes where most construction disputes are of this
nature, the mostly adopted arbitration rule is the
HKIAC Domestic Arbitration Rules 1993.

11
 Among these rules, the two typical styles of
arbitration are coming into picture, which is (i) ad hoc
arbitration which the HKIAC Domestic Arbitration
Rules features, and (ii) administered or instituted
arbitrations where the ICC Rules of Arbitration and
HKIAC Administered Arbitration Rules are designed
for. While under the current legislation, both styles
are permitted and supported, the PRC Arbitration Law
1994, however, only considers instituted arbitration
as valid practice.

The next of concern would immediately be those

Hong Kong stakeholders including architectural
practices, contractors, and so forth, having
commercial activities in PRC. When they come into
the stage of formation of contract with PRC partners
or having a chance to need to provide substantial part
of their service within the territory of PRC, the
application of law to their contracts as well as the
dispute resolution clauses must be carefully
considered and adopted.

5. Process. Arbitral process in Hong Kong resembles by

large court procedures with a lesser emphasis on
rules of representation, procedures, and evidence
generally. Free hand is given to the parties’ choice
under the principle of party autonomy or, when it is
absent, as to be determined by the appointed arbitral
tribunal. In brief, the arbitrator(s) acts like court
judge directing the parties in a more or less
adversarial manner throughout. Arbitration process
starts when one party serves the other a Notice of
Arbitration, then both parties will come to a point to
select arbitrator(s) for their case. Under the HKIA
standard forms of building contracts, the parties must
refer to HKIA for nomination and appointment. After
the receipt of the request for appointment, the

12
presidents of HKIA and HKIS will work together on the
request. As and when this appointment process
specified by contract for certain reason cannot give
result, the statute comes to fill up the gap to enable
successful appointment of arbitrator(s) to facilitate
the case to proceed whereby the party(ies) may
approach HKIAC for appointment under Section 12 of
the HK Cap. 341 Arbitration Ordinance.

The arbitrator will then hold preliminary meeting with

the parties to foretell how he will handle the case
before him and obtain the parties’ consensual
agreement on the whole procedural design. In the
preliminary meeting, a working schedule and the
matters of representation, witness and expert witness
will be dealt with. Then starts the pleading procedure
whereby the arbitrator will direct the parties to
submit their Statement of Claims, Statement of
Defence and Counter-claims, Response to Statement
of Defence and Counter-claims. Followed by
discovery and exchange of documents, the arbitrator
may determine whether site inspections would be
needed for further, inquisitorial discovery directed by
himself/herself. When the arbitrator considers that
most available evidence before him has come to point
of sufficiency, he would plan and advise the parties by
the issuance of direction for hearing. As also allowed
by the Ordinance and as the parties may agree from
time to time, during the arbitral process, to
negotiated by themselves or with a third party neutral
acting as a mediator or conciliator through separate
appointment of another individual or even (one of)
the arbitrator(s) himself/herself separately appointed
to act as such in attempting to assist the parties to
reach consensual agreement through negotiation
before the arbitration further proceed. Once a
consensual agreement is reached, it can be converted

13
 into a consent award by the arbitrator which is
supported by court on recognition and for
enforcement. If no detour has been desired or
fruitful, arbitration moves on to hearing.

In the same token, the adversarial nature of the

hearing as in court may be adhered in a larger or
lesser extent as the arbitral tribunal thinks fit. All the
evidences obtained during the hearing shall become
part of the evidence before the arbitrator(s) who shall
then deliberate his case and issue a reasoned award
with his signature before the manifested deadline.
Parties obtaining the award may choose to enforce
directly or apply to court under 2GG of the Ordinance.

The governing law on arbitration practices are

procedural rather than substantive ones. Principally,
due process must be upheld by the arbitrator where
both parties must be treated equally and fairly, from
the start till the publication of the award. If the
arbitrator misses out some necessary procedures or if
parties have been treated differently, challenge may
be launched upon him even up to court level whereby
he may be removed. However, if a party chooses not
to follow a procedure directed by the arbitrator, this
cannot directly lead to a case default or a waiver and
the arbitrator shall continue the arbitral process and
decide the case based on all the presented evidence
before him.

6. Confidentiality. This is one of the most important

features in arbitration and other ADRs over litigation
in open court. It applies to all participants in any
arbitration infringement of which may lead to serious
consequences including possibilities of having the
award set aside, removal of arbitrator(s), remittance
for re-arbitration, refusal of court recognition and/or

14
 enforcement of arbitral award. Simply put, all efforts
and resources invested by the parties in resolving
professed disputes will go down the drain, not to
mention on the loss of time and costs that devoid the
purpose of arbitration by law and practice.

From the commencement of arbitration, all case

documents and information are only reserved to be
exchanged between the parties, the arbitral tribunal
and, if the process is an administered one, the
administration organization. Even after the arbitral
award is published by the arbitrator and issued to the
parties, it must be kept in confidence except for
submission only to court when court endorsement is
initiated under Section 2GG of the Ordinance. In
another words, no case details shall be in the public
domain. This leads to the consequences of:-

i. Perfect case confidence and privacy where

parties can rest assured of reservation of
their respective market reputations; and

ii. Unavailability of case details and decisions so

formed in the award to be referred to as
reference or res judicata when another case
of the same project having exactly the same
issues where reliance on prior decisions may
provide weight decision and, hence, save
costs and deliver consistency, or some other
similar latter cases having similar issues in
arbitration to refer like case laws.

7. Construction Arbitration. Some features in

construction arbitration includes:

i. Legal representation is often employed

although by law, this is not necessary. This

15
 may be owing to the non-familiarization of
preparation of various claim and defence
documents, and the understanding on how
different documents including expert reports
are helpful to the case. However, the
arbitrator has the flexibility by law not to
follow the law of evidence and legal
procedures but to direct the parties the way
he sees fit so that the case before him is
sufficiently evidential for his deliberation of
award. Often, in the exercising of his unique
inquisitorial power which is not available for
court judges, site inspections are part of
construction arbitration procedures. He may
even advise the parties the necessity of
expert witness to be employed directly by the
arbitral tribunal to serve the case instead of
having parties introducing their own ones. To
this, arbitration comparatively emphasizes
more onto the substance of the case while
procedural rigidities are less effective to the
result of the case.

ii. Construction contracts are relatively

complicated than, say, sales of goods contract.
By its nature being a right-based dispute
resolution process, construction arbitration
very often demands arbitrators, expert
witness as well as lawyers and counsels when
they are employed, must be prudent and
proficient in construction contracts,
operations, and disputes. HKIA / HKIS
maintain their sets of list of dispute resolution
professionals like arbitrators and expert
witnesses where disputants may find useful
to their cases.

16
B2. MEDIATION

In right-based dispute resolution processes, parties put the

case before a third neutral adjudicating party for resolution
who possess entrusted authority and power by the parties
transferred to him/her either by law or by contract. He/she
must also possess sufficient legal and technical competence
to evaluate the case before him/her so that his/her decision is
adequately just and fair enough to be taken as final. This is
the case in litigation and arbitration whose decisions are final,
binding, recognized by court and enforceable. This is not too
so, however, in other forms of adjudicative dispute resolution
processes such as adjudication, expert determination, dispute
resolution panel or board, etc. When the case is to be
decided in right-based processes instead of negotiated to
reach consensual agreement, parties often hold firm in their
positions and are reluctant to give concession or even to
communicate. There are certainly cases where settlements
are reached before trial (in litigation) or hearing (in
arbitration). This is, however, often taken as coerced
compromise rather than consensus.

When contractual differences and conflicts are already

escalated to Dispute, before or even during a right-based
resolution process, parties may by consensus initiate
mediation as an intermediary or determining procedure to
seek possible resolution to their Dispute via a totally different
process based on interest-based approach.

In mediation, the mediator acts as the third party neutral who

possesses no power or authority at all over the parties and
the merits of the case / claims, nor to decide on the case
before him/her. The mediator’s role is “only” to attempt to
assist and facilitate the disputants to communicate for the
reaching of a negotiated consensual settlement of disputes by
employing specialized set of mediation procedures, which
may take a variation of styles. Mediation normally has a

17
“much shorter” period to achieve results. At the lapse of the
contractually defined mediation period where settlement of
disputes are not reached, or, during any point of the
mediation session where further mediation is seen as
unfruitful by the mediator, or, as required by any of the
parties, initiation for fresh or resumption to the on-going
right-based dispute resolution process such as arbitration or
litigation are at parties’ deliberation. Depending on the scale
and complication of the case, mediation can give results, in
parts or all, within hours. In more complex and larger scale
like in construction disputes, it is not unusual that the
mediation process may take a few sessions that span across
days to normally no more than 3 months. The settlement
derived from mediation will be prepared, agreed and signed
between the parties with the mediator’s signatory as witness
for enforcement as a contract.

The following lists the principal features of mediation:-

1. Interest-based. This is the main difference between

mediation and any right-based determination
processes. Parties’ interests in a dispute are directly
identifiable from:

a. their existing contract; and

b. applicable statutes over the contract’s execution.

Other forms of interests of the parties may include:

(i) speedy settlement of the dispute;

(ii) method of payments;
(iii) maintenance of good relationship;
(iv) face;
(v) future prospects between parties;
(vi) savings on legal costs;
(vii) interests on other existing contracts between
the same parties;

18
(viii) alternative forms of remedy than compensation,
such as rescission or apology; and so on.

Categorically speaking, interests cover:

(i) commercial interest;

(ii) technical interest;
(iii) social interest;
(iv) personal interest;
(v) professional interest;
(vi) trade interest; and
(vii) global / industrial interest.

When put at different levels, interests can be

stratified at:

(i) personal level;

(ii) professional level’
(iii) trade level;
(iv) industry level;
(v) social level;
(vi) public level;
(vii) government – administrative, executive
/compliance level;
(viii) prosecution / judicial level;
(ix) economic level;
(x) cultural level; and
(xi) educational level.

In modern world commercial activities such as in the

construction industry where multiple stakeholders
come together very often for the first time to
collaborate on sizable project ventures, such multiple
interests can never be adequately detailed or inserted
in any conventional or most sophisticate forms of
building or professional contracts. Successful
partnering is manifestly recognized as essential for

19
 win-win transaction for all natures of parties at
different level. Yet, it is these unmentioned
territories of interests in any contract in dispute that
leaves ample rooms for the interest-based mediation
to serve, which could be the essential key to secure
satisfaction of multiple interests of the contracting
parties even better than the conventional avenue in
courtroom or through arbitration that most of the
time demand much higher costs and lengthy process
which, in turn, strangle off those less resourceful
stakeholders from access to fair treatment.

2. Process. Mediation takes a generic process

framework:

i. CONVENING : Formation of Agreement to

Mediate between the parties under the conduct
of the prospective mediator who has the duty to
explain to the parties and their representatives :

(a) the purpose of the forgoing mediation

process,
(b) the reasons of having such process (by
Practice Directions, by contract, or at mutual
wish),
(c) the role of himself and the parties throughout,
and
(d) the etiquette for the sessions, ie, joint
sessions and caucuses.

It is here when the mediator emphasizes his on

his neutrality and independence, the voluntary
and confidentiality nature of mediation. Once
such Agreement is signed, parties’ consensual
agreement to mediate is obtained and mediation
can start or, otherwise, refusal to mediate will be
taken.

20
ii. OPENING : Mediation commences where
mediator starts by first elaborating the basic rules
of the session which are based on mutual respect
and effective management. Parties then open
their cases respectively while the mediator, with
careful listening and brainstorming skills,
identifies, prioritizes, summarizes and seeks to
obtain consensual agreement from the parties
over the various consolidated issues and
remedies sought. The mediator sometimes
suggests to and seeks the parties’ consent on
various options to proceed as he/she sees fit for
the effective resolution of the differences of
claims before him/her.

iii. COMMUNICATING : the mediator, like a

director or a facilitator, leads the parties into
communicating like partners in a dance. Without
giving any evaluated views or suggested
proposals to resolve one or some of the issues or
remedies sought after, the mediator tries to
narrow the gap between the parties. With careful
putting the issues into isolation and positive,
pleasant gestures, while maintaining good
atmosphere, the mediator leads the parties to see
to any unexplored settlement opportunities by
thinking “outside the box” and “expanding the
pie” of interests. During impasse, deadlocks or as
requested by any parties, the mediator conducts
caucuses to elicit sensitive points individually and
privately before the next joint session starts again.

iv. NEGOTIATION : at this point of mediation

where some tough issues are still yet to be settled,
the mediator’s expedience to keep the process
moving, attempting to extract concessions, trade-

21
 offs from the parties through reality checks with
BATNA, EATNA, PATNA, WATNA, hypothetical
offers, etc. The mediator’s excellent proficiency
on different negotiation styles which include
positional/competitive/distributive, collaborative/
integrative, principled approaches that may be
used by the parties throughout the process will
his/her best tools in managing parties’ before
him/her so as to lead the parties back to the right
path to fulfill the purpose of mediation.

v. SETTLEMENT AGREEMENT : after the negotiation

process when all or most of the issues and
remedies sought after have come to consensual
agreement between the parties, that further on
with the mediation will not foster any more
benefit to the remaining issues, the mediator
requests the parties’ agreement for the putting
down all of the discussed and agreed settlement
arrangements into writing. The mediator
summarizes and clarifies as necessary with the
parties on the agreed points, explores various
terms to make sure that those agreed settlement
arrangements are adequate deliberated for
execution. The Settlement Agreement shall also
note down the remaining issues not yet agreed
and list down the various steps for the parties’
consideration of their next proceedings. Finally,
the mediator requests the signatures of the
parties onto the Settlement Agreement followed
with his own to complete the documentation
whereby the mediation process ends.

22
3. Jurisdiction and Law : Mediation is fully voluntary
and the only bounds are by contract and the Practice
Directions issued by the Judiciary. In most contracts,
when mediation fails, either party has contractual
right to escalate the dispute resolution to the next
level, which, in construction industry, is normally
specified for arbitration. Under the Practice
Directions, party who chooses to refuse to mediate
may suffer cost sanction in the subsequent
proceedings in court. The execution of the
Settlement Agreement takes the form of contract.
Under some important circumstances, Settlement
Agreements may gain approval by the court to be
endorsed as court judgment for implementation.

4. Rules. There are prevalent mediation rules in practice

by the different sectors of the market. In government
contracts, the HKSAR Government Mediation Rules
prevails while, in the private sector, the HKIAC
Mediation Rules are mostly adopted as extensions of
the based contract when being inserted.

5. Confidentiality. Like arbitration, all parties and

persons participated in mediation are required to
uphold the confidentiality of the case during and after
mediation completes. Likewise, any discussions
during any part of the mediation process must not be
used in the subsequent proceedings, especially those
concessions offered by the parties during negotiation.

The mediator, during private meetings where he/she

explores bottom lines with individual parties, is
particularly restrained by conduct not to expose any
concessions offered by the different parties when
conducting private meetings with another.

23
6. Construction Mediation. Construction mediation
started when the Government adopted it 20 years
ago. It only started in 2005 in the private sector via
the HKIA Agreement and Schedule of Conditions in
Building Contract 2005. Many consider that
construction claims are by large right-based that
mediation may not have the adequate address
towards the parties’ developed attitudes and
approaches in securing their claimed remedies. Other
sees this as a cultural block. What may be more
worth conceiving is the positive effects and general
good that may descend to the construction
community as a whole if “interest-based” rather than
“right-based” incentives become the accepted norm
in dispute resolution and in general collaboration at
all levels among all different stakeholders.

24
B3. EXPERT WITNESS

Architects are experts by nature. Expert witness is something

else.

A witness to a case, whether it be in court, arbitration or

other dispute resolution processes, is a person giving oral
evidence (nowadays, written evidence by witness known as
witness statement is also admissible and to be exchanged
before trial) based on facts he/she possesses relevant to the
case. The purpose is to assist the third neutral party
designated by contract or by law, who has the power to
decide such case with adequate and credible evidence before
a decision is made.

Normative procedure for taking evidence from a witness

involves “chief examination” by the counsel of the party
introducing such witness, followed by “cross-examined” by
the adversarial counsel, and finally “re-examined” again by
the first counsel. Chief examination may be preceded by
exchange of written witness statement so that the time of
hearing may be saved while surprises during hearing may be
minimized.

Expert witness resembles the purpose of witness, with

additional terms to be fulfilled. He/she is the only exception
besides court judge who is allowed to give “opinions” over
his/her findings of the case that are taken as admissible
evidence and recorded for later deliberation for judgment. As
such, his professional knowledge, expertise, experience and
reputation based upon which his/her opinions are formulated
and founded give rise to his/her credibility, and, hence, the
setting of a stage of comparatively competence in case when
both parties produce their respective expert witnesses. One’s
professional credibility thus somehow infers significantly on
the weight and extent of his/her presented evidence and
opinion to be taken by the deciding judge/arbitrator.

25
Many times expert witness needs to work with lawyers and
counsels and to follow legal procedures in case of court trial
or as directed by the arbitrator in case of arbitration. Hence,
his legal knowledge, at least, on the procedure, standing and
representational effects of each different piece of his/her
statements must be well understood and suitably deployed.

Expert witness may be employed by a party or by the tribunal

directly. In the former instance, he/she will be directed by
the representing lawyer with a list of issues that require
his/her attention which may not be all the issues of the case
together with bundles of case documents. Focusing only on
the instructed list of issues, he/she will scrutinize and
organize the relevant case details and formulate his/her case
framework for further investigation. In construction cases,
sometimes when feasible, he/she may need to conduct
physical site inspection and perform inquisitorial interviews as
may be considered relevant by his/her instructing lawyer.

He/she will then prepare a preliminary expert report which

will be passed to the adversary with the exchange of the
other’s expert witness’ report. Both expert witnesses shall
need then to study the details of the other’s report to identify
the agreeable and un-agreeable parts between the reports,
and revise their views on the case as more expert’s views and,
perhaps, evidences, are become more available. Both expert
witnesses shall then come to a joint, without prejudice,
private meeting for exchange of expert’s views without the
presence of the parties nor their lawyers. Both expert
witnesses are expected through professional exchanges to
converge on most if not all of the previously raised points and
arguments, and re-establish their conclusion of the case.

As usually being directed by court/arbitral tribunal, a joint

expert witness report is required to be produced with co-
signatory listing out all the issues of the case under their
respective scrutiny that are able to come to agreeable

26
conclusions, and also those where the expert witnesses
cannot agree upon. The judge/arbitrator will review the joint
report and make further instruction as to whether expert
witnesses are required to attend the forthcoming hearing
depending on whether such differences are crucial to the
determination of the case.

In hearing, as expert witness is permitted to admit his/her

opinion based on the findings and personal credentials,
credibility attack is almost an inevitable stage which could be
the worse part of his/her service. The importance of
neutrality, independence, and competence comes into
challenges. Although expert witness is employed and paid
directly by the respective party, the purpose of their
appearance in the case is solely to assist the deciding
authority to decide the case. He/she should actually not to
stand in front of parties but his/her own professional role and
personally for himself/herself. And he/she must be seen to
do so. In court case where the judgment goes public
eventually, and so is the performance of the expert
witness(es).

27
B4. DISPUTE RESOLUTION ADVISOR

Dispute Resolution Advisor (DRAd) has become a new

profession where, at its initial deployment, construction
disputes between the Employer and Main Contractor are put
to positive attention on prevention of disputes from elevation
to Disputes with the introduction of a neutral third party right
at the commencement of a construction contract.

Initiated and established by the Architectural Services

Department in 1980s, DRAd system has been adopted and
deployed now in government’s construction projects
including those of the Housing Authority since 2000. Further,
ArchSD in July 2010 published “The Dispute Resolution
Advisor (DRAd) System Handbook” for internal deployment
which is also available in the public domain via the internet as
a market reference. The Handbook deals with the
followings:-

1. The approval for use of DRAd system for ArchSD

projects;
2. DRAd Listing procedures;
3. The selection and appointment procedures of DRAd
in ArchSD’s works contracts;
4. Performance reporting system;
5. Contract administration procedures; and
6. Standard tender / contract documents for non-Design
and Build Projects.

Besides ArchSD, Housing Authority has largely adopted the

DRAd system since its Quality Reform in 2000 under the
motto of “Partnering for Change”. Until now, Housing
Authority has deployed DRAd in 84 construction contracts up
to September 2010 where 31 numbers are foundation
contracts and the others 53 are building contracts.
Reportedly the DRAd system has tremendously permitted
Housing Authority in achieving its commitment to Quality

28
Reform. As a further derivative being proposed by DRAds in
2008, a new system of Dispute Avoidance Advisor (DAA) has
been incepted and put to practice by HA in the Kai Tak Site B
project whereby a third neutral party is appointed as early as
the drafting of the construction contract in association with
its Q.S. and legal vetting teams. The whole concept is to put
construction dispute prevention and avoidance measures as
integral parts of the particularized contract (hence, the
contract is also now named as the “integrated contracted” by
HA) before it is formed between the HA and the main
contractor and put to execution.

DRAd takes its position when the Employer and the Main
Contractor form their construction contract having a provision
for such service. Most of the time, the cost of DRAd will be
shared between the parties. Through invitation and receipt of
of quotes and service plans from the selected ones from the
ArchSD’s List, within a definite, specified period, DRAd is
appointed for the project. A first meeting will be conducted
by the DRAd to explain to the parties his service plan and how
he/she would consider appropriate to suitably carry out
his/her service with the expected participation of the parties
at different levels and different stages of the project.
Thereafter, DRAd will participate in regular project meetings
of the parties and, as he/she sees necessary, conduct
separate joint or private meetings with the management of
the parties to see to special issues or conflicts. In principle,
the terms of duties of DRAd is to avoid any escalation of
differences, conflicts or disputes arising from the contract to
Disputes whereby either party will become eligible to initiate
the dispute resolution provisions in the contract to call for
separate external third neutral party to enter into the scene
for mediation or arbitration.

The functioning of the DRAd can be taken as to employ

professional understanding, skillful facilitation, tactful
communication and, sometimes, evaluative opinion at a close

29
distance serving the parties from the start till the end of the
project to make sure every differences, conflicts and disputes
are properly anticipated, channeled, and dissolved in a
professional management approach. His/her activities may
include:-

1. attending project partnering workshops;

2. facilitating communication and solution-finding
between the Employer’s and the Contractor’s teams;
3. giving advice to parties to avoid possible claims and
disputes;
4. maintaining good records of incidents to facilitate
future claims assessment;
5. participating at the early stage of potential disputes.
Sometimes, he/she may provide relevant precedent
examples of similar cases so that parties will have
better ground to reconsider their positions before
next move;
6. acting like a mediator to resolve developed
differences between the Employer and the
Contractor’s team;
7. analyzing potential problems of sustenance of
differences, conflicts or disputes, conducting scenario
evaluations, and encouraging parties to have a
second thought to reach for compromises and
consensual agreements;
8. providing advice based on technical, practical and risk
considerations for parties to consider their positions
as well as their interests;
9. for cases where both parties are contractually
accountable, recommending bearing ratio for each
party to consider for acceptance;
10. issuing “Evaluation of Merits” of the dispute cases;
11. clarifying shares of accountable responsibilities
between Main Contractor and Nominated Sub-
contractors;

30
 12. advising on liability of defects and other non-
conformances;
13. keeping close monitoring for time taken for
assessment, valuation and agreement of variation
works by both parties;
14. advising on valuation approaches; and so on.

The criteria to be considered by the Technical Secretary of

ArchSD for inclusion into the List of DRAds emphatically call
for knowledge and experience in arbitration, mediation,
conciliation and expert witness while those gained from
project experiences are not taken. Believably, at least,
construction dispute prevention and resolution has been
considered now as a distinct and important professions where
the ingredients of neutrality, independence, integrity,
specialized competence and dispute management standards
are getting into one major arena where construction
professionals may excel themselves from their respective
traditional roles.

Furthermore, there has been manifested urge from those

users in the government who see the benefits of the DRAd
system to commend it for the adoption and deployment in
the private sector in order to promote a better region-wide
construction practices and improvements in end-results for all
the stake-holders who invest serious time, resources and
efforts as their profession and enterprises in the local
construction industry.

The market for dispute prevention and resolution in the

construction industry is fairly new, yearning to maturation for
global betterment. This could be the right time for every
construction professional to look at their own profile at
present and plan ahead for the future.

31
C. HKIA CODE OF PROFESSIONAL CONDUCT

32
C. HKIA CODE OF PROFESSIONAL CONDUCT

Preface

The Hong Kong Institute of Architects (hereinafter called “the

HKIA”) was constituted “for the general advancement of Civil
Architecture and for promoting and facilitating the
acquirement of the knowledge of the various Arts and
Sciences connected therewith”. Members of the HKIA are
governed by its Deed of Constitution, its Rules and this Code
of Professional Conduct, under and in addition to the general
law.

0.1 The object of this Code of Professional Conduct is to

promote the standard of professional conduct and self
discipline required of every Member of the Institute in the
interests of the public. (All references to “Member” in this
Code shall include Fellow, Member, Associate and Graduate.)

0.2 This Code rests on four Principles which are of universal

application. Under the principles are Rules, which are specific
injunction, and under the Rules are guidance notes, which
indicate good practice or the conditions under which certain
activities are permitted. Further Rules or Notes or Appendices
may be circulated by the Council from time to time. A
Member is expected to be familiar with these from the date
of their circulation.

0.3 A Member may be required to answer enquiries

concerning his professional conduct in accordance with the
Rules of the Institute. A Member is liable to reprimand,
suspension, or expulsion if his conduct is found to be in
contravention of the Code or otherwise inconsistent with his
status as a Member or derogatory to his professional
character. Contravention of the Code includes conduct by a
Member which dishonours any of its Principles, whether or
not the Member has contravened any specific Rule or Note.

33
0.4 This Code shall apply not only to a Member acting on his
own behalf but also to the conduct of any body corporate or
incorporate practising as architects in which a Member has an
interest.

Principle 1

A Member shall faithfully carry out the duties which he

undertakes, and shall have a proper regard for the interests
both of those who commission and of those who may be
expected to use or enjoy the product of his work.

Rule 1.1 A Member shall be prompt in all his dealings. A

Member who becomes unable or unwilling to continue with a
commission shall give reasonable notice of termination.

1.1.1 A Member shall not undertake or continue with

any work if he is unable to arrange that his resources
are adequate and properly directed to carry out the
work expeditiously.

1.1.2 A Member shall arrange that the work of his

office and any branch office is under the proper
control of a suitably qualified person.

1.1.3 A Graduate who undertakes a commission shall

seek guidance from a Member other than a Graduate
Member.

Rule 1.2 A Member shall not subcommission work for which

he has been commissioned without the prior agreement of
his client, nor without defining the responsibilities of those
concerned.

34
Rule 1.3 A Member shall act impartially in all cases in which
he is acting between parties, and shall interpret the
conditions of a building contract with fairness.

Rule 1.4 A Member who has been appointed assessor for any
competition shall not act in any capacity for the work, except
that he may act as arbitrator in any dispute between the
promoters and the selected architect.

Principle 2

A Member shall avoid any action or situation inconsistent

with his professional obligations or likely to raise doubts
about his integrity.

Rule 2.1 A Member who finds that his interests, whether

professional or personal, conflict so as to risk a breach of this
Principle shall, as the circumstances may require, either
withdraw from the situation, or remove the source of conflict,
or declare it and obtain the agreement of the parties
concerned to the continuance of his engagement.

Rule 2.2 A Member shall not have any financial or personal

interest in or connection with any business which would or
might breach this Principle, unless such interest or connection
is fully declared and accepted by his client, contractor and any
other parties likely to be affected thereby.

2.2.1 Where a conflict of interest is likely to occur

because a Member has a financial or personal interest
in a contract he shall arrange for an arbitrator to be
agreed and appointed at an early stage in its
performance, whether or not a dispute has arisen.

2.2.2 A Member shall avoid any situation in which he

would be in a position to influence improperly the

35
 granting of planning applications or statutory
approvals.

Rule 2.3 A Member shall not take discounts, commissions, or

gifts as an inducement to show favour to any person or body,
nor shall he in his professional capacity recommend in
advertisements any service or product associated with his
profession.

Rule 2.4 A Member may by prior written agreement with his

client exclude liability for loss of use, loss of profits, or other
consequential loss.

Rule 2.5 A Member who is appointed to superintend or

control any activities of any body corporate or incorporate
shall advise his employer that the business of that body so far
as it relates to his profession shall be conducted in conformity
with this Code.

Rule 2.6 A Member shall not have as a partner or co-director

in his practice or firm any person who is disqualified from
membership by reason of expulsion under the relevant
disciplinary regulations from the HKIA or another professional
institution (unless the HKIA otherwise allows), or any person
who is an undischarged bankrupt, even though that person
engages in occupations separate from the architectural
practice.

Rule 2.7 A Member shall safeguard confidential information in

relation to his client and shall not disclose confidential
information to third parties without the written consent of
the client. A Member shall not receive any advantage, gift or
favour for disclosing such information to third parties or make
use of it for personal gain.

36
Rule 2.8 A Member shall not accept excessive entertainment
in relation to his client’s business because his decisions might
be seen as having been influenced by such entertainment.

Principle 3

A Member shall rely only on ability and achievement as the

basis for his advancement.

Rule 3.1 A Member shall uphold and apply the HKIA

Agreement between Client and Architect and the Scale of
Professional Charges contained therein (hereafter called
“HKIA Agreement”).

3.1.1 Where a Member is concerned with the

appointment of another, he shall make every effort to
ensure that the conditions of the commissioned
architect’s appointment are in accordance with the
HKIA Agreement. A Member who is unable to ensure
shall furnish the HKIA with a written declaration of
the facts.

3.1.2 A Member who is offering professional services

shall not revise a fee quotation to take account of the
fee quoted by another architect for the same service.

Rule 3.2 A Member shall inform his client in advance of the

Conditions in the HKIA Agreement and shall agree with his
client that those Conditions shall be the basis of his
appointment.

3.2.1 A Member shall explain to his client the

particular application of the HKIA Agreement to his
appointment, and shall define his own responsibilities
in relation to the commission.

37
Rule 3.3 A Member shall not prepare designs for a client in
competition with another Member without payment or for a
reduced fee, except in a competition conducted under the
HKIA and/or UIA Regulations for the Promotion and Conduct
of Competitions, or in a competition otherwise approved by
the HKIA and/or the UIA.

Rule 3.4 A Member shall not give discounts commissions or

other inducements for or in recognition of the introduction of
clients or work.

Rule 3.5 A Member shall not attempt to supplant another

architect.

Rule 3.6 A Member shall observe the guidelines laid down by

the HKIA for the promotion of professional services, and shall
ensure that these guidelines are adhered to by any person or
body who may direct the promotion of a Member’s
professional services on his behalf.

3.6.1 A Member may make his availability and

experience known to potential clients by providing
information which in substance and in presentation is
factual, relevant and neither misleading nor unfair to
others nor discreditable to the profession.

3.6.2 A Member, on being approached or instructed

to proceed with work on which he can ascertain by
reasonable enquiry that another architect is or has
been at any time engaged, shall notify the other
architect in writing.

3.6.3 A Member who is asked to give an opinion on

the work of another architect shall notify the fact to
that architect except where it can be shown that to
do so would be prejudicial to prospective litigation.

38
Principle 4

A Member shall endeavour to promote architectural

excellence through his work and by the encouragement of
others.

Rule 4.1 A Member is encouraged to participate in local and

international affairs concerning the environment.

4.1.1 A Member is encouraged to voice his opinion on

architectural matters provided that any adverse
criticism by him is neither malicious nor in
contravention of Principle 3.

Rule 4.2 A Member shall have proper regard for the

professional obligations and qualifications of those with
whom he is professionally associated.

4.2.1 A Member shall define the terms of

employment, authority responsibility and liability of
the architects and others he employs or superintends.

4.2.2 A Member shall endeavour to provide the

architects and others he employs or superintends
with opportunities to accept progressively greater
delegated authority and responsibility in accordance
with their ability and experience.

Rule 4.3 A Member shall maintain and advance his

competence by participating in continuing education and in
the affairs of his profession.

4.3.1 A Member shall enable the architects and

others he employs or superintends to do likewise.

4.3.2 A Member who employs or superintends

students shall cooperate with the HKIA and schools of

39
 architecture in their practical training and should
provide as varied experience as is possible.

Rule 4.4 A Member shall permit architects and others he

employs or superintends to enter architectural competitions
with his prior knowledge on the understanding that it does
not adversely affect the Member’s practice or firm.

Rule 4.5 A Member shall give recognition where possible to

the architects and others who participate in a project or
competition.

40
D. PREVALENT DISPUTE RESOLUTION CLAUSES

41
D1. HKIA STANDARD DISPUTE RESOLUTION CLAUSES

a. AGREEMENT & SCHEDULE OF CONDITIONS OF BUILDING

CONTRACT (2005 EDITION) CLAUSE 41

41 Settlement of disputes

Procedures and Designated Representatives

41.1 (1) Subject to clause 41.5 dealing with early arbitration

the parties shall follow the dispute settlement procedures
outlined in clause 41.

(2) Each party shall designate one of its own senior executives
as its representative (referred to in clause 41 as the
‘Designated Representatives’) within 14 days of acceptance of
the Contractor’s tender, and the Designated Representatives
shall endeavour to settle disputes that rise during the carrying
out of the Works.

(3) The Designated Representatives shall have the authority

to settle disputes and shall not be involved in the day to day
administration of the Contract.

Reference to Designated Representatives

41.2 (1) If a dispute arises under or in connection with the

Contract, the Architect shall, at the request of either party,
immediately refer the dispute to the Designated
Representatives.

(2) The Designated Representatives shall meet within 7 days

of receipt of a notice from the Architect requesting them to
resolve the dispute.

42
Reference to mediation

41.3 (1) if the dispute is not resolved by the Designated

Representatives within 28 days of the dispute being referred
to them by the architect under clause 41.2, either party my
give notice to the other party, by special delivery, to refer the
dispute to mediation and the person to act as the mediator
shall be agreed between the parties.

(2) If the parties fail to agree on the person to act as the

mediator within 21 days after either party has given to the
other a written request to do so, the mediator shall, on the
written request of either party, be appointed by the President
or Vice- President for the time being of the Hong Kong
Institute of architects co-jointly with the President or Vice-
President for the time being of the Hong Kong Institute of
Surveyors.

(3) The mediation shall, unless otherwise greed by the parties,

be conducted in accordance with and subject to the Hong
Kong International Arbitration Centre Mediation Rules except
those provisions in the Rules relating to the appointment of
the mediator.

(4) dispute under Article 5 shall be immediately referred to

arbitration without first being referred to mediation.

Reference to arbitration

41.4 (1) If the dispute is not settled by mediation within 28

days of the commencement of the mediation, either party
may give a notice to the other party, by special delivery, to
refer the dispute to arbitration and the person to act as the
arbitrator shall be agreed between the parties.

(2) If the parties fail to agree on the person to act as the

arbitrator within 21 days after either party has given to the

43
other a written request to do so, the arbitrator shall, on the
written request of either party, be appointed by the President
or Vice-President for the time being of The Hong Kong
Institute of Architects co-jointly with the President of Vice-
President for the time being of the Hong Kong Institute of
Surveyors.

(3) The Presidents or Vice-Presidents referred to in clause

41.4(2), if in agreement to do so, may, at their discretion,
request the Hong Kong International Arbitration Centre to
appoint the arbitrator, by a joint letter to the Chairman of
that organization.

(4) If the Presidents or Vice- Presidents referred to in clause

41.4(2) fail to appoint the arbitrator within 60 days after
receiving the written request to do so under clasue 41.4(2)
then the arbitrator shall on the written request of either party
be appointed by the Hong Kong International Arbitration
Centre.

(5) The arbitration shall be a domestic arbitration conducted

in accordance with the Arbitration Ordinance (Chapter 341,
Laws of Hong Kong) and, unless otherwise agreed by the
parties, with the Domestic Arbitration Rules of the Hong
Kong International Arbitration Centre except those provisions
in the Rules relating to the appointment of the arbitrator.

Time of arbitration

41.5 (1) The arbitrator shall have jurisdiction to hear the

parties and commence the arbitration of a dispute arising out
of, under or in connection with the Contract at any time on a
question of whether:

(a) An Article 5 objection will be upheld;

(b) The Architect is empowered by the Conditions to
issue an instruction;

44
 (c) A certificate has been improperly withheld or was not
issued in accordance with the Conditions;
(d) The assessment of the Employer’s loss of value under
clause 7(2) is reasonable;
(e) The Contractor’s objection to a Variation referred to
in clause 13.1 (1)(a) is reasonable; and
(f) The Contractor’s consent to the Employer taking
possession of a Relevant Part under clause 18.1 is
unreasonable withheld,

or on a dispute under clauses 35, 36 and 37.

(2) The hearing of disputes other that those listed in clause

41.5 (1) shall not commence until after Substantial
Completion or alleged Substantial Completion of the whole of
the Works or determination or alleged determination of the
Contractor’s employment or abandonment of the Works
unless the written consent of the parties to the hearing is
given after the dispute has arisen.

Arbitrator’s powers

41.6 The arbitrator’s powers include:

(a) Rectifying the Contract to accurately reflect the true

agreement made by the parties;
(b) Directing measurements or Valuations to determine
the rights of the parties;
(c) Assessing and awarding any sum which ought to have
been the subject of or included in a certificate; and
(d) Opening up, reviewing and revising, without
limitation, the giving, submitting or issuing of any
agreement, approval, assessment, authorization,
certificate, confirmation, consent, decision,
delegation, direction, dissent, determination,
endorsement, instruction, notice, notification,

45
 opinion, request, requirement, statement,
termination or Valuation.

The place of arbitration

41.7 The place of arbitration shall be Hong Kong.

Contractor to continue to proceed diligently

41.8 (1) The contractor shall continue to proceed regularly

and diligently with the Works despite a dispute having arisen,
and shall continue to give effect to all instructions from the
Architect unless and until revised by agreement between the
Designated Representatives, by mediation or in arbitration
under clause 41.

(2) The Contractor’s compliance with clause 41.8 (1) is

without prejudice to any other rights and remedies that he
may possess.

46
b. AGREEMENT & SCHEDULE OF CONDITIONS OF BUILDING
CONTRACT (1999 EDITION) CLAUSE 35

35 Arbitration

(1) Provided always that in case any dispute or difference

shall arise between the Employer or the Architect on his
behalf and the Main Contractor, either during the progress or
after the completion or abandonment of the Works, as to the
construction of this Contract or as to any matter or thing of
whatsoever nature arising thereunder or in connection
therewith (including any matter or thing left by this Contract
to the discretion of the Architect or the withholding by the
Architect of any certificate to which the Main Contractor may
claim to be entitled or the measurement and valuation
mentioned in clause 30 (5) (a) of these Conditions or the
rights and liabilities of the parties under clauses 25, 26, 32 or
33 of these Conditions), then such dispute or difference shall
be and is hereby referred to the arbitration and final decision
of a person to be agreed between the parties, or, failing
agreement within fourteen days after either party has given
to the other a written request to concur in the appointment
of an Arbitrator, a person to be appointed on the request of
either party by the President or Vice-President for the time
being of The Hong Kong Institute of Architects co-jointly with
the President or Senior Vice President for the time being of
the Hong Kong Institute of Surveyors.

(2) Such reference, except on article 3 or article 4 of the

Articles of Agreement, or on the questions whether or not the
issue of an instruction is empowered by these Conditions,
whether or not a certificate has been improperly withheld or
is not in accordance with these Conditions, or on any dispute
or difference under clauses 32 and 33 of these Conditions,
shall not be opened until after Practical Completion or alleged
Practical Completion of the Works or termination or alleged
termination of the Main Contractor’s employment under this

47
Contract, or abandonment of the Works, unless with the
written consent of the Employer or the Architect on his behalf
and the Main Contractor.

(3) Subject to the provisions of clauses 2(2) and 30 (7) of

these Conditions the Arbitrator shall, without prejudice to the
generality of his powers, have power to direct such
measurements and/ or valuations as may in his opinion be
desirable in order to determine the rights of the parties and
to ascertain and award any sum which ought to have been
the subject of or included in any certificate to open up, review
and revise any certificate, opinion, decision , requirement or
notice and to determine all matters in dispute which shall be
submitted to him in the same manner as if no such certificate,
opinion, decision, requirement or notice had been given.

(4) The award of such Arbitrator shall be final and

binding on the parties.

(5) Whatever the nationality, residence or domicile of the

Employer, the Main Contractor, any sub-contractor or
supplier or the Arbitrator, and wherever the Works, or any
part thereof, are situated, the law of the Hong Kong Special
Administrative Region shall be the proper law of this Contract
and in particular (but not so as to derogate from the
generality of the foregoing) the provisions of the Arbitration
Ordinance or any statutory modification thereof for the time
being in force shall apply to any arbitration under this
Contract wherever the same, or any part of it, shall be
conducted.

48
D2. MODELED DISPUTE RESOLUTION CLAUSE IN
GOVERNMENT CONSTRUCTION CONTRACTS

Model form of standard dispute resolution clauses are

incorporated in the following forms of standard government
construction contracts progressively that developed into the
present form(s) among the following General Conditions of
Contracts (GCC):-

- GCC for Term Contracts for Building Works 1988

Clause 92 (no mediation provision)
- GCC for Term Contracts for E&M Engineering Works 1994
Clause 89(1)
- GCC for Design and Build Contracts 1999
Clause 86(4)
- GCC for Building Works 1999
Clause 86(1)
- GCC for Civil Engineering Works 1999
Clause 86(1)
- GCC for E&M Engineering Works 1999
Clause 86(1)
- Sub-Contract for Building Works 2000
Clause 33(1)
- GCC for Term Contracts for Civil Engineering Works 2002
Clause 89(1)
- GCC for Term Contracts for E&M Engineering Works 2007
Clause 89(1)

The following is an excerpt from the above listed GCC for

Building Works 1999 Clause 86:-

Settlement of Disputes

86. (1) If any dispute or difference of any kind whatsoever

shall arise between the Employer and the Contractor in
connection with or arising out of the Contract or the carrying
out of the Works including any dispute as to any decision,

49
instruction, order, direction, certificate of the Architect or
certificate or valuation by the Surveyor whether during the
progress of the Works or after their completion and whether
before or after the termination, abandonment or breach of
the Contract, it shall be referred to and settled by the
Architect who shall state his decision in writing and give
notice of the same to the Employer and the Contractor.
Unless the Contract shall have been already terminated or
abandoned the Contractor shall in every case continue to
proceed with the Works with all due diligence and he shall
give effect forthwith to every such decision of the Architect
unless and until the same shall be revised in mediation or
arbitration as hereinafter provided. Such decision shall be
final and binding upon the Contractor and the Employer
unless either of them shall require that the matter be referred
to mediation or arbitration as hereinafter provided. If the
Architect shall fail to give such decision for a period of 28 days
after being requested to do so or if either the Employer or
Frustration Settlement of disputes the Contractor be
dissatisfied with any such decision of the Architect then either
the Employer or the Contractor may within 28 days after
receiving notice of such decision, or within 28 days after the
expiry of the said decision period of 28 days, as the case may
be, request that the matter be referred to mediation in
accordance with and subject to The Government of the Hong
Kong Special Administrative Region Construction Mediation
Rules or any modification thereof being in force at the date of
such request.

(2) If the matter cannot be resolved by mediation, or if either

the Employer or the Contractor do not wish the matter to be
referred to mediation then either the Employer or the
Contractor may within the time specified herein require that
the matter shall be referred to arbitration in accordance with
and subject to the provisions of the Arbitration Ordinance
(Cap. 341)or any statutory modification thereof for the time
being in force and any such reference shall be deemed to be a

50
submission to arbitration within the meaning of such
Ordinance. Any reference to arbitration shall be made within
90 days of:

(a) the receipt of a request for mediation and

subsequently the recipient of such request
having failed to respond, or
(b) the refusal to mediate, or
(c) the failure of the mediation proceedings to
produce a settlement acceptable to the
Employer and the Contractor, or
(d ) the abandonment of the mediation, or
(e) the Architect failing to make a decision for a
period of 90 days after being so requested to
do so and subsequently neither the Employer
nor the Contractor having requested
mediation, or
(f) the receipt of a notice of a decision by the
Architect and subsequently neither the
Employer nor the Contractor having
requested mediation.

(3) The arbitrator appointed shall have full power to open up,
review and revise any decision (other than a decision under
Clause 46(3) not to vary the Works), instruction, order,
direction, certificate of the Architect or certificate or
valuation by the Surveyor and neither party shall be limited in
the proceedings before such arbitrator to the evidence or
arguments put before the Architect for the purpose of
obtaining his decision above referred to. Save as provided for
in sub-clause (4) of this Clause no steps shall be taken in the
reference to the arbitrator until after the completion or
alleged completion of the Works unless with the written
consent of the Employer and the Contractor.

51
Provided that:

(a) the giving of a certificate of completion in

accordance with Clause 53 shall not be a
condition precedent to the taking of any step
in such reference;
(b) no decision given by the Architect in
accordance with the foregoing provisions
shall disqualify him from being called as a
witness and giving evidence before the
arbitrator on any matter whatsoever relevant
to the dispute or difference so referred to the
arbitrator as aforesaid.

(4) In the case of any dispute or difference as to the exercise

of the Architect’s powers under Clause 81(1) the reference to
the arbitrator may proceed notwithstanding that the Works
shall not then be or be alleged to be complete.

(5) The Hong Kong International Arbitration Centre Domestic

Arbitration Rules shall apply to any arbitration instituted in
accordance with this Clause unless the parties agree to the
contrary.

(6) The reference to arbitration under sub-clause (2) of this

Clause shall be a domestic arbitration for the purposes of Part
II of the Arbitration Ordinance (Cap. 341).

52
E. PREVALENT DISPUTE RESOLUTION RULES

53
E1. HONG KONG MEDIATION CODE and
AGREEMENT TO MEDIATE

HONG KONG MEDIATION CODE

Published by the Department of Justice in June 2009 and later

adopted by major mediation service providers including HKIA
in 2010.

(The Code may be subject to change from time to time and

shall not be reproduced or published, in full or in part, for any
commercial or profit making purposes without prior written
consent from the Department of Justice of the Hong Kong
SAR.)

GENERAL RESPONSIBILITIES

1. The Mediator shall act fairly in dealing with the Parties to

the mediation, have no personal interest in the terms of any
Settlement Agreement, show no bias towards the Parties, be
reasonably available as requested by the Parties, and be
certain that the Parties have been informed about the
mediation process.

RESPONSIBILITIES TO THE PARTIES

2. Impartiality/Conflict of Interest

The Mediator shall maintain impartiality towards all Parties.

The Mediator shall disclose to the Parties any
affiliations/interests which the Mediator may have or had
with any Party and in such situation obtain the prior written
consent of all the Parties before proceeding with the
mediation.

54
3. Informed Consent

(a) The Mediator shall explain to all Parties the nature of

the mediation process, the procedures to be utilised
and the role of the Mediator.
(b) The Mediator shall ensure the Parties sign an
Agreement to Mediate prior to the substantive
negotiations between the Parties.*
(c) The Agreement(s) to Mediate shall include the
responsibilities and obligations of the Mediator and the
Parties.

4. Confidentiality

(a) The Mediator shall keep confidential all information,

arising out of or in connection with the mediation,
unless compelled by law or public policy grounds.
(b) Any information disclosed in confidence to the
Mediator by one of the Parties shall not be disclosed to
the other Party without prior permission.
(c) Paragraphs 4(a) and 4(b) shall not apply in the event
such information discloses an actual or potential threat
to human life or safety.

5. Suspension or Termination of Mediation

The Mediator shall inform the Parties of their right to

withdraw from the mediation. If the Mediator believes that a
party is unable or unwilling to participate effectively in the
mediation process, the Mediator can suspend or terminate
the mediation.

6. Insurance

The Mediator shall consider whether it is appropriate to be

covered by professional indemnity insurance and if so, shall
ensure that he/she is adequately covered.

55
DEFINING THE PROCESS

7. Independent Advice and Information

In a mediation in which a Party is without legal representation
or relevant expert opinion, the Mediator shall consider
whether to encourage the Party to obtain legal advice or
relevant expert opinion.

8. Fees
The Mediator has a duty to define and describe in writing the
fees for the mediation. The Mediator shall not charge
contingent fees or base the fees upon the outcome of the
mediation.

RESPONSIBILITIES TO THE MEDIATION PROCESS AND THE

PUBLIC

9. Competence
The Mediator shall be competent and knowledgeable in the
process of mediation. Relevant factors shall include training,
specialist training and continuous education, having regard to
the relevant standards and/or accreditation scheme to which
the Mediator is accredited. For example, in the event the
mediation relates to separation/divorce, the Mediator shall
have attained the relevant specialist training and the
appropriate accreditation.

10. Appointment
Before accepting an appointment, the Mediator must be
satisfied that he/she has time available to ensure that the
mediation can proceed in an expeditious manner.

11. Advertising/promotion of the Mediator’s services

The Mediator may promote his/her practice, but shall do so in
a professional, truthful and dignified manner.

56
 AGREEMENT TO MEDIATE

THIS AGREEMENT IS MADE ON _____________________

BETWEEN THE FOLLOWING PERSONS (in this Agreement
called the ‘Parties’)

_________________________ ________________________
(Name of Party: Please Print) (Name of Party: Please Print)

_________________________ ________________________
(Contact Telephone Number) (Contact Telephone Number)

_________________________ ________________________

_________________________ ________________________

_________________________ ________________________
(Address) (Address)

AND THE MEDIATOR (called ‘the Mediator’)

_________________________
(Name of Mediator: Please Print)

_________________________
(Contact Telephone Number)
_________________________

_________________________

_________________________
(Address)

57
Appointment Of Mediator

1. The Parties appoint the Mediator to mediate the Dispute

between them in accordance with the terms of this
Agreement.

Role Of The Mediator

2. The Mediator will be neutral and impartial. The Mediator

will assist the Parties to attempt to resolve the Dispute by
helping them to:

(a) systematically isolate the issues in dispute;

(b) develop options for the resolution of these issues; and
(c) explore the usefulness of these options to meet their
interests and needs.

3. The Mediator may meet with the Parties together or

separately.

4. The Mediator will not:

(a) give legal or other professional advice to any Party; or

(b) impose a result on any Party; or
(c) make decisions for any Party.

Conflict Of Interest

5. The Mediator must, prior to the commencement of the

mediation, disclose to the Parties to the best of the
Mediator’s knowledge any prior dealings with any of the
Parties as well as any interest in the Dispute.

6. If in the course of the mediation the Mediator becomes

aware of any circumstances that might reasonably be
considered to affect the Mediator’s capacity to act impartially,
the Mediator must immediately inform the Parties of these

58
circumstances. The Parties will then decide whether the
mediation will continue with that Mediator or with a new
mediator appointed by the Parties.

Cooperation By The Parties

7. The Parties agree to cooperate in good faith with the

Mediator and each other during the mediation.

Authority To Settle And Representation At The Mediation

Session

8. The Parties agree to attend the mediation with authority to

settle within any range that can reasonably be anticipated.

9. At the mediation each Party may be accompanied by one or

more persons, including legally qualified persons, to assist
and advise them.

Communication Between The Mediator And The Parties

10. Any information disclosed to a Mediator in private is to be

treated as confidential by the Mediator unless the Party
making the disclosure states otherwise.

Confidentiality Of The Mediation

11. Every person involved in the mediation:

(a) will keep confidential all information arising out of or in

connection with the mediation, including the fact and
terms of any settlement, but not including the fact that
the mediation is to take place or has taken place or
where disclosure is required by law to implement or to
enforce terms of settlement; and

59
(b) acknowledges that all such information passing
between the Parties and the Mediator, however
communicated, is agreed to be without prejudice to any
Party’s legal position and may not be produced as
evidence or disclosed to any judge, arbitrator or other
decision-maker in any legal or other formal process,
except where otherwise disclosable in law.

12. Where a Party privately discloses to the Mediator any

information in confidence before, during or after the
mediation, the Mediator will not disclose that information to
any other Party or person without the consent of the Party
disclosing it, unless required by law to make disclosure.

13. The Parties will not call the Mediator as a witness, nor
require him to produce in evidence any records or notes
relating to the mediation, in any litigation, arbitration or other
formal process arising from or in connection with the Dispute
and the mediation; nor will the Mediator act or agree to act
as a witness, expert, arbitrator or consultant in any such
process.

14. No verbatim recording or transcript of the mediation will

be made in any form.

Termination Of The Mediation

15. A Party may terminate the mediation at any time after

consultation with the Mediator.

16. The Mediator may terminate the mediation if, after

consultation with the Parties, the Mediator feels unable to
assist the Parties to achieve resolution of the Dispute.

60
Settlement Of The Dispute

17. No terms of settlement reached at the mediation will be

legally binding until set out in writing and signed by or on
behalf of each of the Parties.

Exclusion Of Liability And Indemnity

18. The Mediator will not be liable to any Party for any act or
omission by the Mediator in the performance or purported
performance of the Mediator’s obligations under this
Agreement unless the act or omission is fraudulent.

19. Each Party indemnifies the Mediator against all claims by

that Party or anyone claiming under or through that Party,
arising out of or in any way referable to any act or omission
by the Mediator in the performance or purported
performance of the Mediator’s obligations under this
agreement, unless the act or omission is fraudulent.

20. No statements or comments, whether written or oral,

made or used by the Parties or their representatives or the
Mediator within the mediation shall be relied upon to found
or maintain any action for defamation, libel, slander or any
related complaint, and this document may be pleaded as a
bar to any such action.

Mediation Code

21. The mediation shall proceed according to the terms of this

Agreement and the Hong Kong Mediation Code.

Cost Of The Mediation

22. The Parties will be responsible for the fees and expenses
of the Mediator in accordance with the SCHEDULE.

61
23. Unless otherwise agreed by the Parties in writing, each
Party agrees to share the mediation fees equally and also to
bear its own legal and other costs and expenses or preparing
for and attending the mediation (“each Party’s Legal Costs”)
prior to the mediation. However, each Party further agrees
that any court or tribunal may treat both the mediation fees
and each Party’s legal costs as costs in the case in relation to
any litigation or arbitration where that court or tribunal has
power to assess or make orders as to costs, whether or not
the mediation results in settlement of the Dispute.

Legal Status And Effect Of The Mediation

24. Any contemplated or existing litigation or arbitration in

relation to the Dispute may be started or continued despite
the mediation, unless the Parties agree or a court orders
otherwise.

25. This Agreement is governed by the law of the Hong Kong

Special Administrative Region and the courts of the Hong
Kong Special Administrative Region shall have exclusive
jurisdiction to decide any matters arising out of or in
connection with this Agreement and the mediation.

FULL DISCLOSURE (applicable to family mediation)

26. (a) The Parties agree to fully and honestly disclose all
relevant information as requested by the Mediator and by
each other.
(b) Any failure by either of the Parties to make full and frank
disclosure may result in the setting aside of any agreement
reached in mediation.

62
SIGNING OF THE AGREEMENT TO MEDIATE

Date: _________________________________

_________________________________________________
Name of Party or Representative (Please print and sign here)

_________________________________________________
Name of Party or Representative (Please print and sign here)

_________________________________________________
Name of Party or Representative (Please print and sign here)

_________________________________________________
Name of Party or Representative (Please print and sign here)

_____________________________________
Name of Mediator (Please print and sign here)

SCHEDULE
Fees and Expenses of Mediator
1. For all preparation $ (per hour)
2. For the mediation $ (per hour)
3. Room hire fees $
4. Allocation of costs
Party 1 %
Party 2 %
Party 3 %
Party 4 %
Or
All parties equally %

63
E2. HONG KONG INTERNATIONAL ARBITRATION
CENTRE DOMESTIC ARBITRATION RULES 1993

RULES:
Preamble
1 Commencement of Arbitration
2 Appointing Authority
3 Appointment of Arbitrator
4 Communication between Parties and the Arbitrator
5 Conduct of the Proceedings
6 Submission of Written Statements and Documents
7 Representation
8 Hearings
9 Witnesses
10 Assessor Appointed by the Arbitrator
11 Powers and Jurisdiction of the Arbitrator
12 Default of Appearance by a Party
13 Venue
14 Language
15 Deposits and Security
16 The Award
17 Interpretation of Awards, Correction of Awards and
Additional Awards
18 Payment Into Court
19 Costs
20 Interest
21 Exclusion of Liability
22 Waiver
23 Destruction of Documents
24 Interpretation and General Clauses Ordinance
25 Documents-Only Arbitration
26 Confidentiality

64
PREAMBLE

Where any agreement, submission or reference provides for

arbitration under the Domestic Arbitration Rules of Hong
Kong International Arbitration Centre (the Rules), the parties
shall be taken to have agreed that the arbitration shall be
conducted in accordance with the following Rules, or such
amended Rules as Hong Kong International Arbitration Centre
(HKIAC) may have adopted to take effect before the
commencement of the arbitration. The Rules are subject to
such modifications as the parties may agree in writing at any
time.

Article 1 Commencement of Arbitration

1.1 Any party wishing to commence an arbitration under

these Rules (the Claimant) shall send to the other party (the
Respondent) a written notice requiring the Respondent to
appoint or concur in appointing the Arbitrator (Notice of
Arbitration) which shall include, or be accompanied by:

(a) the names and addresses (and telephone, telex and fax
numbers as appropriate) of the parties to the dispute
and, where the Claimant chooses to be represented by
a Representative (under Article 7) and wishes to have
communications sent to its Representative, the
Representative's name and address (and telephone,
telex and fax numbers);
(b) reference to the contractual documents in which the
arbitration clause is contained or under which the
arbitration arises;
(c) a copy of any separate arbitration agreement which is
invoked.
(d) a brief statement describing the nature and
circumstances of the dispute, and specifying in outline
the relief claimed;

65
(e) a proposal that either HKIAC appoints the Arbitrator,*
or a list of up to three names from which the
Respondent may choose an Arbitrator.

The arbitration shall be deemed to commence on the date of

receipt by the Respondent of the Notice of Arbitration.

1.2 A copy of the Notice of Arbitration shall be sent to the

Secretary-General of HKIAC (the Secretary-General) at the
same time that it is sent to the Respondent.

* HKIAC may be asked either to make a direct appointment or

may be asked to use the list system of appointment detailed in
the “Guide to Arbitration Under the Domestic Arbitration
Rules 1993.”

1.3 For the purpose of facilitating the choice of the

Arbitrator, within 28 days of receipt of the Notice of
Arbitration, the Respondent shall send to the Claimant a
Response containing:

(a) confirmation or denial of his willingness to arbitrate

and, if denial, the grounds relied upon;
(b) confirmation or denial of all or part of the claims;
(c) a brief statement of the nature and circumstances of
any envisaged counterclaims;
(d) a response either agreeing to any proposals
contained in the Notice of Arbitration, as called for
under Article 1.1(e), or a list of up to three names
from which the Claimant may choose an Arbitrator.
(e) details of its Representative, including the
Representative's name and address (and telephone,
telex and fax numbers), if appropriate.

1.4 A copy of the Responses shall be sent to the

Secretary-General at the same time that it is sent to the
Claimant.

66
1.5 Failure to send a Response shall neither preclude the
Respondent from denying the claim nor from setting out a
counterclaim in its Statement of Defence.

Article 2 Appointing Authority

2.1 HKIAC shall be the Appointing Authority.*

2.2 Any application to the Appointing Authority to act in

accordance with these Rules shall be accompanied by:

(a) copies of the Notice of Arbitration and Response and

any other related correspondence;
(b) confirmation in writing that a copy of the application
has been sent to or received by the other party;
(c) particulars of any method or criteria for selection of
the Arbitrator agreed by the other parties.

Article 3 Appointment of Arbitrator

3.1 There shall be a sole Arbitrator.

3.2 The Arbitrator shall be and remain at all times wholly

independent and impartial, and shall not act as advocate for
any party.

* HKIAC will require payment of an appointment fee for the

use of its services as Appointing Authority as set out in its Fee
Schedule.

3.3 Prior to appointment any proposed Arbitrator, and

after appointment the Arbitrator, shall disclose to the parties
any circumstance likely to create an impression of bias or
prevent a prompt resolution of the dispute between the
parties. Except by consent of the parties, no person shall
serve as the Arbitrator in any dispute in which that person has

67
any interest which, if a party knew of it, might lead him to
think that the Arbitrator might be biased.

3.4 The Arbitrator may be appointed by agreement of the

parties. Failing such agreement within 42 days of the
commencement of the arbitration in accordance with Article
1, the Arbitrator shall upon the application of either party be
appointed HKIAC.

3.5 If the Arbitrator dies, is unable to act, or refuses to act,

HKIAC will, upon request by either party, appoint another
Arbitrator.

Article 4 Communication between Parties and the Arbitrator

4.1 Where the Arbitrator sends any communication to

one party, he shall send a copy to the other party at the same
time.

4.2 Where a party sends any communication (including

Statements and documents under Article 6) to the Arbitrator,
it shall be copied to the other party and be indicated to the
Arbitrator to have been so copied at the same time.

4.3 The addresses of the parties for the purpose of all

communications arising under the Rules shall be those set out
in the Notice of Arbitration, or as either party may at any time
notify the Arbitrator and the other party.

4.4 Unless the contrary is proved, any communication by

post shall be deemed to be received in the ordinary course of
mail. Any instantaneous means of communication (e.g. fax or
telex) shall be deemed to be received on the same day as
transmitted.

4.5 If the parties so agree, the Secretary-General will act

as arbitration administrator. Where the Secretary-General is

68
so appointed, all communications and notices between a
party and the Arbitrator in the course of the arbitration
(except at meetings and hearings) will be addressed through
the Secretary-General.

Article 5 Conduct of the Proceedings

5.1 The Arbitrator shall have the power to adopt

wherever possible a simplified or expedited procedure and in
any case shall have the widest discretion allowed by law to
conduct the proceeding so as to ensure the just, expeditious,
economical, and final determination of the dispute.

5.2 The Arbitrator should, and shall, if requested by any party,

hold a preliminary meeting with the parties as soon as
possible after accepting his appointment.

Article 6 Submission of Written Statements and Documents

6.1 Subject to any procedural rules agreed by the parties

or determined by or requested from the Arbitrator under
Article 5, the written stage of the proceedings shall be as set
out in this Article (and in accordance with Article 4).

6.2 Within 28 days of receipt by the Claimant of

notification of the Arbitrator's acceptance of the appointment,
the Claimant shall send to the Arbitrator a Statement of Claim
setting out a full description in narrative form of the nature
and circumstances of the dispute specifying all factual matters
and, if necessary for the proper understanding of the claim, a
summary of any contentions of law relied upon and the relief
claimed.

6.3 Within 35 days of receipt of the Statement of Claim,

the Respondent shall send to the Arbitrator a Statement of
Defence setting out a full description in narrative form the
factual matters and contentions of law in the Statement of

69
Claim which he admits or denies, on what grounds, and
specifying any other factual matters and, if necessary for the
proper understanding of the defence, a summary of any
contentions of law relied upon. Counterclaims, if any, shall be
submitted with the Statement of Defence in the same manner
as claims set out in the Statement of Claim.

6.4 Within 21 days of receipt of the Statement of Defence

the Claimant may send to the Arbitrator a Statement of Reply
which, where there are Counterclaims, shall include a
Defence to Counterclaims.

6.5 If the Statement of Reply contains a Defence to

Counterclaims, the Respondent may within a further 21 days
send to the Arbitrator a Statement of Reply regarding
Counterclaims.

6.6 All Statements referred to in this Article shall be

accompanied by copies (or, if they are especially voluminous
and by leave of the Arbitrator, lists) of all essential documents
on which the party concerned relies and which have not
previously been submitted by any party, and (where
appropriate) by any relevant samples.

6.7 The Arbitrator may order the parties to produce any

additional documents he may specify.

6.8 As soon as practicable following completion of the

submission of the Statements specified in this Article, the
Arbitrator shall proceed pursuant to his authority under the
Rules unless otherwise agreed by the parties.

Article 7 Representation

A party may conduct his case in person or be represented

throughout or in part by lawyers or other advisers or
representatives of his choice (Representative). A party shall

70
notify the Arbitrator, HKIAC and the other parties of any
change of Representative and his address (and telephone,
telex and fax numbers) as soon as practicable after any such
change.

Article 8 Hearings

8.1 Subject to Article 12, each party has the right to be

heard before the Arbitrator, unless the parties have agreed to
documents-only arbitration under Article 25.

8.2 The Arbitrator shall fix the date, time and place of
meetings and hearings in the arbitration, and shall give the
parties reasonable notice thereof.

8.3 The Arbitrator may in advance of hearings provide the

parties with a list of matters or questions to which he wishes
them to give special consideration.

8.4 The Arbitrator may order opening and closing

statements to be in writing and shall fix the periods of time
for communicating such statements and the replies that may
be necessary.

8.5 The Arbitrator may also order a transcript of any

hearing or part of any hearing.

8.6 All meetings and hearings shall be in private unless

the parties agree otherwise.

Article 9 Witnesses

9.1 The Arbitrator may at any time require any party to

give notice of the identity of witnesses he intends to call and a
short summary of the subject matter of their testimony and
its relevance to the issues. The Arbitrator may also require
the exchange of witnesses’ statements and of expert reports.

71
9.2 The Arbitrator has discretion to allow, limit, or refuse
to allow the appearance of witnesses, whether witnesses of
fact or expert witnesses.

9.3 Any witness who gives oral evidence may be

questioned by each party or its Representative, under the
control of the Arbitrator, and may be required by the
Arbitrator to testify under oath or affirmation in accordance
with the Arbitration Ordinance. The Arbitrator may put
questions to the witnesses at any stage of the examination.

9.4 The testimony of witnesses may be presented in

written form, either as signed statements or by duly sworn
affidavits, and the Arbitrator may order that such statements
or affidavits shall stand as evidence-in-chief. Subject to Article
9.2 any party may request that such a witness should attend
for oral examination at a hearing. If the witness fails to attend,
the Arbitrator may place such weight on the written
testimony as he thinks fit, or may exclude it altogether.

Article 10 Assessor Appointed by the Arbitrator

Unless otherwise agreed by the parties, the Arbitrator may:

(a) appoint an Assessor to assist him;

(b) require a party to give any Assessor any relevant
information or to produce, or to provide access to any
relevant documents, goods or property for inspection
by the Assessor.

Article 11 Powers and Jurisdiction of the Arbitrator

11.1 Without prejudice to the generality of Article 5.1 and

unless the parties at any time agree otherwise, the Arbitrator
shall have the power and/or jurisdiction to:

72
(a) allow any party, upon such terms (as to costs and
otherwise) as the Arbitrator shall determine, to
amend any document submitted under Article 6;
(b) extend or abbreviate any time limits provided by the
Rules or by his directions;
(c) conduct such enquiries as may appear to the
Arbitrator to be necessary or expedient;
(d) order the parties to make any property or thing
available for inspection, in their presence, by the
Arbitrator or any Assessor;
(e) order any party to produce to the Arbitrator, and to
the other parties for inspection, and to supply copies
of any documents or classes of documents in their
possession, custody or power which the Arbitrator
determines to be relevant;
(f) order the rectification in any contract or arbitration
agreement of any mistake which he determines to be
common to the parties;
(g) rule on the existence, validity or termination of the
contract;
(h) rule on his own jurisdiction, including any objections
with respect to the existence or validity of the
arbitration agreement to the validity of his
appointment or to his terms of reference;
(i) determine any question of law arising in the
arbitration;
(j) determine any question of good faith, dishonesty or
fraud arising in the dispute, if specifically asserted by
a party in one of their Statements;
(k) receive and take into account such written or oral
evidence as he shall determine to be relevant and
shall not be bound by the rules of evidence;
(l) proceed in the arbitration and make an award
notwithstanding the failure or refusal of any party to
comply with these Rules or with the Arbitrator's
written orders or written directions, or to exercise its

73
 right to present its case, but only after giving that
party written notice that he intends to do so;
(m) Order the making by one party to another of an
interim payment of monies alleged to be due where,
in the opinion of the Arbitrator, payment is
undoubtedly due;
(n) order any party to provide security for the legal or
other costs of any other party by way of deposit or
bank guarantee or in any other manner the Arbitrator
thinks fit.
(o) order any party to provide security for all or part of
any amount in dispute in the arbitration.

11.2 By agreeing to arbitration under the Rules, the parties

hereby agree to apply to the Arbitrator, and not to any court
of law or other judicial authority, for any order which, but for
the Rules, would normally be made by a court of law or other
judicial authority.

11.3 For the purpose of Article 11.1(h) above, an

arbitration clause which forms part of a contract shall be
treated as an agreement independent of the other terms of
the contract. A decision by the Arbitrator that the contract is
null and void shall not entail the invalidity of the arbitration
clause.

11.4 A plea that the Arbitrator does not have jurisdiction

shall be raised not later than the time for service of the
Statement of Defence. A plea that the Arbitrator is exceeding
the scope of his authority shall be raised promptly after the
Arbitrator has indicated his intention to decide on the matter
alleged to be beyond the scope of his authority. In either case
the Arbitrator may nevertheless admit a late plea under this
paragraph if he considers the delay justified.

74
Article 12 Default of Appearance by a Party

If the Claimant fails to attend any hearing of which due notice

has been given, the Arbitrator may make an award on the
substantive issues and an award as to costs, with or without a
hearing. If the Respondent fails to submit a Statement of
Defence or to attend any hearing after due notice has been
given, the Arbitrator may conduct the hearing in the absence
of the Respondent and make an Award on the evidence.

Article 13 Venue

The venue of the arbitration will be Hong Kong but the

Arbitrator may decide for the purpose of expediting any
hearing or saving costs to hear witnesses or oral argument or
consult with an Assessor (if appointed) at any place the
Arbitrator deems appropriate having regard to the
circumstances of the arbitration.

Article 14 Language

14.1 The language of the arbitration shall be English and all

written communications and statements, and all hearings
shall be conducted in the English language unless the parties
and the Arbitrator otherwise agree.
14.2 The Arbitrator may order that any documents other
than written statements which are produced in the course of
the arbitration in their original language shall be accompanied
by a translation into the language of the arbitration, such
translation to be certified if not agreed.

14.3 Unless the Arbitrator otherwise orders, witnesses

shall be entitled to give their evidence in the language of their
choice and the Arbitrator may order the translation of that
evidence into the language of the arbitration by a suitably
qualified person.

75
Article 15 Deposits and Security

The Arbitrator may direct the parties, in such proportions as

he deems just, to make one or more deposits to secure the
Arbitrator's fees and expenses. Such deposits shall be made
to and held by the Arbitrator, or HKIAC or some other person
or body to the order of the Arbitrator, as the Arbitrator may
direct, and may be drawn from as required by the Arbitrator.
Interest on sums deposited, if any, shall be accumulated to
the deposits.

Article 16 The Award

16.1 The Arbitrator shall make his award in writing and,

unless all the parties agree otherwise, shall state the reasons
upon which the award is based. The award shall be dated and
signed by the Arbitrator. The award shall be deemed to be
made in Hong Kong.

16.2 The Arbitrator shall notify the parties as soon as the

award is ready for collection but shall not be obliged to
deliver the award unless his fees and expenses have been
paid.
16.3 Unless the parties otherwise agree, the Arbitrator
shall provide a copy of the award to the Secretary-General.

16.4 The Arbitrator may make interim awards including

separate awards on different issues at different times.

16.5 If, before the award is made, the parties agree on a

settlement of the dispute, the Arbitrator shall either issue an
order for termination of the reference to arbitration or, if
requested by both parties and accepted by the Arbitrator,
record the settlement in the form of a consent award. The
Arbitrator shall then be discharged and the reference to
arbitration concluded, subject to payment by the parties of all
outstanding fees and expenses of the Arbitrator.

76
Article 17 Interpretation of Awards, Correction of Awards
and Additional Awards

17.1 Within 14 days of receiving an award, unless another

period of time has been agreed upon by the parties, a party
may by written notice to the Arbitrator and the other party
request the Arbitrator to give an interpretation of the award.
Such party may also request the Arbitrator to correct in the
award any errors in computation, any clerical or typographical
errors or any errors of a similar nature. If the Arbitrator
considers the request to be justified, he shall provide an
interpretation or correction within 14 days of receiving the
request. Any interpretation or correction shall be given in
writing and shall be notified in writing to the parties and to
the Secretary-General and shall become part of the award.

17.2 The Arbitrator may correct any error of the type

referred to in Article 17.1 on his own initiative within 14 days
of the date of the award.

17.3 Unless otherwise agreed by the parties, a party may

request the Arbitrator, within 14 days of the date of the
award, and with written notice to the other party, to make an
additional award as to claims presented in the reference to
arbitration but not dealt with in the award. If the Arbitrator
considers the request to be justified, he shall notify the
parties and the Secretary-General within 7 days and shall
make the additional award within 28 days.

17.4 The provisions of Article 16 shall apply to any

interpretation or correction of the award and to any
additional award.

Article 18 Payment into Court

Any party may at any time avail himself of the procedure for
payment into court pursuant to the provisions of Order 73 of

77
the Rules of the Supreme Court of Hong Kong, although the
Arbitrator may take account of any written offer of
settlement where a payment into court could have been
made.

Article 19 Costs

19.1 The Arbitrator shall specify in the award the total

amount of his fees and expenses, including the charges of any
arbitration administrator, Assessor, transcriber or translator.
Unless the parties shall agree otherwise after the dispute has
arisen, the Arbitrator shall determine the proportions in
which the parties shall pay such fees and expenses, provided
that the parties will be jointly and severally liable to the
Arbitrator for payment of all such fees and expenses until
they have been paid in full. If the Arbitrator has determined
that all or any of his fees and expenses shall be paid by any
party other than a party which has already paid them to the
Arbitrator, the latter party shall have the right to recover the
appropriate amount from the former.

19.2 Unless the parties shall agree otherwise after the

dispute has arisen, the Arbitrator may order in the award that
all or a part of the legal or other costs of one party reasonable
in amount and reasonably incurred shall be paid by the other
party. The Arbitrator also has power to tax these costs and
shall do so if requested by the parties.

19.3 If the Arbitration is abandoned, suspended or

concluded, by agreement or otherwise, before the final award
is made, the parties shall be jointly and severally liable to pay
to the Arbitrator his fees and expenses including the charges
of any arbitration administrator, Assessor, transcriber or
translator as determined by him.

78
Article 20 Interest

Unless otherwise agreed by the parties, the Arbitrator may

order that compound interest be paid.

Article 21 Exclusion of Liability

21.1 Without prejudice to any existing rule of law, the

Arbitrator shall not be liable to any party for any act or
omission in connection with any arbitration conducted under
the Rules, save for the consequences of fraud or dishonesty.

21.2 HKIAC and its Secretary-General shall not be liable to

any party for any act or omission in connection with any
arbitration conducted under these Rules, save for the
consequences of fraud or dishonesty.

21.3 After the award has been made and the possibilities
of interpretation, correction and additional awards referred
to in Article 17 have lapsed or been exhausted, the Arbitrator,
HKIAC and its Secretary-General shall not be under any
obligation to make any statement to any person about any
matter concerning the arbitration, and no party shall seek to
make the Arbitrator, HKIAC or its Secretary-General a witness
in any legal proceedings arising out of the arbitration.

Article 22 Waiver

A party which knew or ought to have known of non-

compliance with these Rules and yet proceeds with the
arbitration without promptly stating its objection to such non-
compliance, shall be deemed to have waived its right to
object. The Arbitrator shall determine any issue which may
arise as to whether a party has waived its right to object to
the non-compliance by any other party.

79
Article 23 Destruction of Documents

HKIAC may destroy all documents served on it pursuant to the

Rules after the expiry of a period of one year after the date of
the last correspondence received by HKIAC relating to the
arbitration.

Article 24 Interpretation and General Clauses Ordinance

The Interpretation and General Clauses Ordinance (or any

statutory modification or re-enactment thereof for the time
being in force) shall apply to these Rules.

Article 25 Documents-Only Arbitration

25.1 Where the parties have agreed that a documents-only

arbitration procedure shall be adopted, the parties shall not
be entitled to a hearing and the testimony of any witness shall
be presented in written form and shall be submitted in
accordance with Article 6. If the Arbitrator feels unable to
make an award on the basis of the documents submitted, he
shall be entitled to require further evidence or submissions
whether oral or in writing.

25.2 If a party fails to submit any statement in accordance

with Article 6, the Arbitrator may make an award on the
substantive issues and an award as to costs without a hearing.

Article 26 Confidentiality
No information relating to the arbitration shall be disclosed
by any person without the written consent of each and every
party to the arbitration.

* for full version and referenced documents, please visit

http://www.hkiac.org/documents/Arbitration/Arbitration%20Rules/
e_domestic.pdf

80
E3. HONG KONG INTERNATIONAL ARBITRATION
CENTRE MEDIATION RULES 1999

Mediation

1. Mediation under these Rules is a confidential, voluntary,

non-binding and private dispute resolution process in which a
neutral person (the mediator) helps the parties to reach a
negotiated settlement.

Application of Rules

2. These Rules apply to the mediation of present or future

disputes where the parties seek amicable settlement of such
disputes and where, either by stipulation in their contract or
by agreement, they have agreed that these Rules shall apply.
The parties may agree to vary these Rules at any time.

Initiation of the Mediation Process

3. (a) If a dispute arises, a party may request the initiation of

mediation by delivering a written request for mediation to the
other party or parties with copies to HKIAC. Such request for
mediation shall contain a brief self-explanatory statement of
the nature of the dispute, the quantum in dispute (if any), the
relief or remedy sought and nominating a mediator or
mediators thought suitable.

(b) The names, addresses, phone and fax numbers of all

parties to the dispute, and those who will represent them,
should be exchanged between the parties and also furnished
to the HKIAC.

Response to Request for Mediation

4. A party or parties who receive a request for mediation shall

notify any other party and HKIAC within 14 days after receipt

81
of the request whether any mediator nominated is acceptable.
Failure by any party to reply within 14 days shall be treated as
a refusal to mediate.

Appointment of the Mediator

5. Where the parties agree on a mediator and the proposed

mediator is willing to serve, they will notify HKIAC. The
mediation shall then proceed in accordance with these Rules.
If the parties fail to agree within the time stipulated in Rule 4
they will notify HKIAC who shall appoint a single accredited
mediator who is prepared to serve and is not disqualified
under Rule 6.

Disqualification of Mediator

6. No person shall act as mediator in any dispute in which that

person has any financial or personal interest in the result of
the mediation except by consent of the parties. Before
accepting an appointment, the proposed mediator shall
disclose to the parties (and to the HKIAC if the HKIAC has
made the appointment under Rule 5) any circumstances likely
to create a presumption of bias or prevent a prompt
resolution of the dispute. Upon receipt of the information
HKIAC shall immediately communicate the information to the
parties for their comments. If any party takes objection to the
proposed mediator within 7 days he shall not be appointed.
In such case the HKIAC shall nominate another suitable
accredited mediator.

The Mediation Process

7. The mediator shall commence the mediation as soon as

possible after his appointment and shall use his best
endeavours to conclude the mediation within 42 days of his
appointment. His appointment shall not extend beyond a

82
period of three months without the written consent of all
parties.

Role of the Mediator

8. The mediator may conduct the mediation in such manner,

as he considers appropriate, taking into account the
circumstances of the case, the wishes of the parties and the
need for a speedy settlement of the dispute.

Role of the Parties

9. The mediator may communicate with the parties together

or with any party separately, including private meetings and
each party shall cooperate with the mediator. A party may
request a private meeting with the mediator at any time. The
parties shall give full assistance to enable the mediation to
proceed and be concluded within the time stipulated.

Representation

10. The parties may be represented or assisted by persons of

their choice.

Each party shall notify in advance the names and the role of
such persons to the mediator and the other party. Each party
shall have full authority to settle or he accompanied by a
person with such authority.

Termination of the Mediation

11. The mediation process shall come to end:-

(a) Upon the signing of a settlement agreement by the

parties or;

83
(b) Upon the written advice of the mediator after
consultation with the parties that in his opinion further
attempts at mediation are no longer justified or;
(c) Upon written notification by any party at any time to
the mediator and the other parties that the mediation
is terminated.

Confidentiality

12. (i) Mediation is a private and confidential process. Every

document, communication or information disclosed, made or
produced by any party for the purpose of or related to the
mediation process shall be disclosed on a privileged and
without prejudice basis and no privilege or confidentiality
shall be waived by such disclosure. Confidentiality also
extends to the settlement agreement except where its
disclosure is necessary for implementation or enforcement.
(ii) Nothing that transpires during the course of the mediation
is intended to or shall in any way affect the rights or prejudice
the position of the parties to the dispute in any subsequent
arbitration, adjudication or litigation.

Costs

13. (i) Unless otherwise agreed, each party shall bear its own
costs regardless of the outcome of the mediation or of any
subsequent arbitral or judicial proceedings. All other costs
and expenses shall be borne equally by the parties and the
parties shall be jointly and severally liable to pay to the
mediator such costs, including:-

(a) the mediator’s fees and expenses;

(b) expenses for any witness or expert advice or opinion
requested by the mediator with the consent of the
parties; and
(c) any administrative costs in support of the mediation
including HKIAC’s costs.

84
(ii) The sum designated in HKIAC’s Schedule of Initial Deposits
shall be deposited by each of the parties with HKIAC before
the mediator enters upon the mediation, as a contribution to
the cost and proper expenses of the mediation including the
mediator’s fees and expenses.

(iii) The mediator may at any time during the mediation

require the parties to make further deposits to cover any
additional anticipated fees and expenses and suspend the
process until such deposit is made.

(iv) Any surplus funds deposited shall be returned to the

parties at the conclusion of the mediation.

Mediator’s Role in Subsequent Proceedings

14. The parties undertake that the mediator shall not be

appointed as adjudicator, arbitrator or representative,
counsel or expert witness of any party in any subsequent
adjudication, arbitration or judicial proceedings whether
arising out of the mediation or any other dispute in
connection with the same contract. No party shall be entitled
to call the mediator as a witness in any subsequent
adjudication, arbitration or judicial proceedings arising out of
the same contract.

Exclusion of Liability

15. The parties jointly and severally release, discharge and

indemnify the mediator and the HKIAC in respect of all
liability whatsoever, whether involving negligence or not,
from any act or omission in connection with or arising out of
or relating in any way to any mediation conducted under
these Rules, save for the consequences of fraud or dishonesty.

* for full version and referenced documents, please visit

http://www.hkiac.org/documents/en_mediation.pdf

85
E4. HONG KONG SAR GOVERNMENT
CONSTRUCTION MEDIATION RULES and
ADMINISTRATIVE GUIDELINES 1999 Edition

HKSAR government first introduced mediation as a means of

dispute resolution before the use of arbitration proceedings
in its construction contracts in 1988, with its mediation rules
first published in 1989. Subsequently, Works Bureau issued
on February 1, 1999 the latest version of government’s
Mediation Rules and Administrative Guidelines that are now
to be followed among all government’s construction contracts
where mediation is provided.

HONG KONG SAR GOVERNMENT CONSTRUCTION

MEDIATION RULES

Rule 1. Definition of mediation

Mediation under these Rules is a confidential, voluntary and

non-binding dispute resolution process in which a neutral
person, "the mediator", helps the parties to reach a
negotiated settlement.

Rule 2. Application of the Rules

These Rules apply to the mediation of present or future

disputes where the parties seek amicable settlement of such
disputes and where, either by stipulation in their contract or
by agreement, they have agreed that these Rules shall apply.
The parties may agree to vary these Rules at any time.

Rule 3. Initiation of the mediation process

If either party is dissatisfied with a decision of the

Architect/Engineer, or if the Architect/Engineer fails to give a
decision in the time required under the contract, either party

86
may initiate the mediation process by a written request to the
other party with a copy to the Architect/Engineer. Such
request shall contain a brief self-explanatory statement of the
nature of the dispute, the amount claimed or remedy sought
and the name of a person or persons nominated to act as
mediator.

Rule 4. Response to request for mediation

The party which receives a request for mediation shall notify

the other party, within 28 days after receipt of the request,
whether or not it agrees to participate in the mediation and if
so whether the person or persons nominated to act as
mediator are acceptable. If the person or persons nominated
are not acceptable, the parties shall attempt to agree a
suitable mediator within 14 days of acceptance of the request
for mediation. The absence of any reply within the time
specified shall be treated as a refusal to mediate.

Rule 5. Appointment of the mediator

Where the parties agree on a mediator and that person

agrees to act as mediator, the mediation shall then proceed in
accordance with these Rules. If the parties fail to agree within
the time stipulated in Rule 4 either party may request the
Hong Kong International Arbitration Centre (HKIAC) to
appoint a suitable mediator.

Rule 6. Disqualification of the mediator

No person shall act as mediator where that person has any

financial or personal interest in the outcome of the mediation,
except with consent of the parties. Before accepting
appointment the proposed mediator shall disclose to the
parties and to the HKIAC (if the appointment has been made
by the HKIAC under Rule 5), any circumstances likely to create
a presumption of bias or prevent a prompt resolution of the

87
dispute. In the case of a proposed mediator to be appointed
by the HKIAC, the HKIAC shall immediately advise the parties.
If either party objects to the proposed mediator within 7 days
of the receipt of the proposed appointment by the HKIAC he
shall not be appointed. In such case the HKIAC shall appoint
another suitable mediator.

Rule 7. The mediation process

The mediator shall commence the mediation as soon as

possible after his appointment and shall endeavour to
conclude the mediation within 42 days. The mediator's
appointment shall not extend beyond a period of three
months without the consent of both parties.

Rule 8. Role of the mediator

The mediator may conduct the mediation in such manner as

he considers appropriate, taking into account the
circumstances of the case, the wishes of the parties and the
need for a speedy settlement of the dispute. The mediator
may communicate with the parties together or with each
party separately.

Rule 9. Role of the parties

Each party shall co-operate in good faith with the mediator.

Either party may request a private meeting with the mediator
at any time.

Rule 10. Representation

The parties may be represented or assisted by persons of

their choice. Each party shall notify in advance the names and
the role of such persons to the mediator and the other party.

88
Rule 11. Termination of the mediation

The mediation process shall come to an end:

(a) upon the signing of a settlement agreement by the

parties; or
(b) upon the written advice of the mediator after
consultation with the parties that in his opinion
further attempts at mediation are no longer justified;
or
(c) upon written notification by either party at any time
to the mediator and the other party that the
mediation is terminated.

Rule 12. Confidentiality

Mediation is a private and confidential process and every

aspect of communication for the purpose of or related to the
mediation process shall be without prejudice. Confidentiality
also extends to the settlement agreement except where its
disclosure is necessary for implementation or enforcement.

The parties shall not rely on or introduce as evidence in any

subsequent arbitral or judicial proceedings:

(a) any oral or written exchanges within the mediation

between either party and the mediator or between
either party;
(b) any views expressed or suggestions made within the
mediation either by the mediator or either party in
respect of a possible settlement of the dispute;
(c) any admission made by a party within the mediation;
(d) the fact that either party had or had not indicated a
willingness to accept any suggestion or proposal for
settlement by the mediator or by the other party; and
(e) any documents brought into existence for the
purpose of the mediation including any notes or

89
 records made in connection with the mediation by
the mediator or either party.

Rule 13. Costs

Unless otherwise agreed, each party shall bear its own costs
regardless of the outcome of the mediation or of any
subsequent arbitral or judicial proceedings. All other costs
and expenses shall be borne equally by the parties and the
parties shall be jointly and severally liable to pay to the
mediator such costs, including:

(a) the mediator's fees and expenses;

(b) expenses for any witnesses or expert advice or
opinion requested by the mediator with the consent
of the parties; and
(c) any administrative costs in support of the mediation.

Before the commencement of the mediation, the mediator

may require the parties to deposit such portion of the
anticipated costs and expenses as he thinks appropriate. He
may at any time during the mediation require the parties to
make further deposits to cover any additional anticipated fees
and expenses. Any surplus funds deposited shall be returned
to the parties at the conclusion of the mediation.

Rule 14. Mediator's role in subsequent proceedings

The parties undertake that the mediator shall not be

appointed as arbitrator or representative or counsel of either
party in any subsequent arbitration or judicial proceedings
whether arising out of the mediation or any other dispute in
connection with the same contract. Neither party shall be
entitled to call the mediator as a witness in any subsequent
arbitration or judicial proceedings arising out of the same
contract.

90
Rule 15. Exclusion of liability

The parties jointly and severally release, discharge and

indemnify the mediator and the HKIAC in respect of all
liability whatsoever, whether involving negligence or not,
from any act or omission in connection with or arising out of
or relating in any way to any mediation conducted under
these Rules, save for the consequences of fraud or dishonesty.

* for full version and referenced documents, please visit

http://www.devb.gov.hk/filemanager/technicalcirculars/
en/upload/196/1/WB0499.pdf

91
HKSAR GOVERNMENT ADMINISTRATIVE GUIDELINES
FOR MEDIATION IN CONSTRUCTION DISPUTES

When to Mediate

1. Following the referral of a contractual dispute to the

Architect/Engineer, and if either party is dissatisfied with the
decision of the Architect/Engineer, or if the
Architect/Engineer fails to give a decision as required under
the settlement of disputes” Clause, then either party may
request that the dispute be referred to mediation. Whether
or not to seek mediation or agree to the Contractor request
to mediate rests with the Director of the works department
administering the contract (the Director).

Policy

2. There may be instances where mediation is not

considered appropriate, or where the claim appears to be
without substance. However, in all cases the merits of the
dispute should be given careful consideration before deciding
whether to agree to or to refuse mediation. The policy is to
implement mediation wherever it is possible that a dispute
may be resolved speedily and at less cost to government
should the dispute escalate to formal arbitration or litigation.
In an ongoing contract this should also avoid unnecessary
escalation of the dispute or festering of the relationship. In a
contract where a dispute has already been referred to
arbitration or litigation, mediation may still provide a cheaper,
speedier and more acceptable solution.

Initiation by Government

3. Any request for mediation initiated by government

should be submitted to the Director after first obtaining Legal
Advisory Division of Works Bureau (LAD/WB) advice. The
Director may then initiate mediation in accordance with Rule

92
3 of the Rules. The formal mediation request should be
copied to S for Tsy, S for W (Attn : PGC/LAD and PAS(WP&S))
and the Architect/Engineer.

Initiation by the Contractor

4. On receiving a request for mediation from the

Contractor, the Director or an officer at D2 rank or above
delegated by him shall, in accordance with Rule 4 of the Rules,
advise the Contractor within 28 days after receipt of the
mediation request whether he is willing to participate in the
mediation. The Director or the officer delegated by him shall
notify LAD/WB promptly of any such request. A copy of his
response to the Contractor must be copied to S for Tsy, S for
W (Attn: PGC/LAD and PAS(WP&S)) and the
Architect/Engineer.

Defining a Request for Mediation

5. With reference to Rule 3 of the Rules, a request for

mediation shall be formally recognised as such only if
submitted in writing by the Contractor to the Director or an
officer delegated by him, or by the Director or an officer
delegated appointed by him to the Contractor. Any request
for mediation received by the project officer must be referred
immediately to the Director.

Consultation

6. The department shall liaise with LAD/WB on the

extent to which LAD/WB assistance is required and shall
assess government's potential liability having regard to the
assessment of the Architect/Engineer, the Contractor's
arguments, the merits of the claims and the legal advice on
government's potential for success in arbitration or litigation.
If it is considered beneficial to settle the matter in dispute by
extra-contractual settlement which will incur financial

93
implications to government, he shall first seek the agreement
of S for Tsy on a ceiling figure up to which he may negotiate
with authority. If the information is insufficient for making an
assessment at the outset of the mediation, the department
may nevertheless proceed with the mediation and make a
proposal on the settlement ceiling during the course of the
mediation, when government's potential liability, and the
contractor's arguments, become clearer. The department
shall keep LAD/WB and S for Tsy informed at appropriate
stages of the mediation.

Appointment of the Mediator

7. The mediator shall be appointed in accordance with

the Rules.

Representation at the Mediation

8. The Director or an officer appointed by him shall be

responsible for selecting the personnel to represent him at
the mediation and, whilst he has full discretion in the
selection process, the representatives should normally be
officers at senior professional rank or above and led by an
officer at D2 rank or above. It is essential that those selected
as representatives should be available for the duration of the
mediation. In accordance with Rule 10 of the Rules, the
department shall notify the mediator and the other party in
advance, the names and the role of his representatives in the
mediation.

9. The Director or officer appointed by him may request

LAD/WB to attend, to advise or participate in some or all
stages of the mediation process. This may be particularly
desirable where a point of law is in dispute or if a commercial
settlement is being considered.

94
10. The number of government representatives attending
should not normally be more than four. It is important for
those selected as representatives in the mediation to bear in
mind that they are not presenting their facts to a Court of Law
and that mediation is an informal process. To simplify and
expedite the mediation, every attempt should be made to
agree in advance with the Contractor on the issues, facts and
law and establish any common ground. This will focus the
parties’ attention on the real problems and save time in the
mediation.

Mediation Process

11. The mediation process usually consists of several

stages, beginning with a preliminary meeting called by the
mediator. The purpose of a preliminary meeting is to
introduce the mediator to the parties, establish a cooperative
atmosphere, establish a timetable for the exchange of
documents, and to decide on procedural issues, a suitable
venue and a time schedule for the mediation. Ideally, all
those who would attend the mediation should attend the
preliminary meeting.

12. At the mediation hearing, the mediator will normally

make an opening statement in order to clarify his role,
emphasize his neutrality, explain the procedures, the goal of
the mediation, the confidential nature of the process and
legal aspects.

13. After the opening statement the mediator would

usually invite each party to present its case in turn, following
which he should clarify the issues in dispute and which need
to be resolved in the mediation. At the next stage the
mediator will try to control the flow communication between
the parties in joint meetings or private meetings. His goal is
firstly to focus on the underlying needs and interests of the
parties, to narrow differences, encourage the parties to

95
explore options, and possibly to test the validity of any
suggestions for settlement. The process also requires the
parties pro-active involvement to look for options, search for
any potential joint gains and if necessary to re-assess their
respective positions.

14. At the mediation, the government representatives

should initially present their case according to their
understanding of the terms of the contract, and seek a
settlement on that basis. However, if it appears following the
exchange of information and evidence, that there may be
grounds, or good commercial reasons, for exploring a
compromise settlement, then the government
representatives may negotiate up to the ceiling figure
previously agreed by the S for Tsy (see paragraph 6). Beyond
that ceiling figure, the government representatives shall
immediately seek the further approval or advice of the S for
Tsy.

15. If the parties agree on how to resolve the matters in

dispute, the mediator should facilitate a written agreement
on the terms of settlement for signature of the parties before
concluding the mediation.

Use of other Alternative Dispute Resolution Processes

16. Whilst government wishes to promote the use of

mediation, other amicable forms of dispute resolution may in
some cases offer a speedier and cheaper solution. If any
other method is considered, LAD/WB shall be consulted at the
earliest opportunity.

Reporting Mediation Requests for Record Purposes

17. All requests for mediation of construction disputes,

whether requested by government or the Contractor, shall be
notified for record purposes by the Director or an officer

96
delegated by him to the S for W (Attn: PGC/LAD and
PAS(WP&S)) in the form of the attached Appendix C
immediately after the rejection of the mediation request or
after the mediator is appointed where the mediation has
been accepted.

18. In the case of mediations requested by government, a

copy of the formal request for mediation shall be attached to
Appendix C.

19. At the conclusion of the mediation, relevant details

shall be notified to the S for W (Attn: PGC/LAD and
PAS(WP&S)) in the form of the attached Appendix D, together
with a copy of the Appendix C previously submitted.

20. All notifications to S for W shall be marked

‘CONFIDENTIAL’.

* for full version and referenced documents, please visit

http://www.devb.gov.hk/filemanager/technicalcirculars/en/u
pload/196/1/WB0499.pdf

97
F. HKIA DISPUTE RESOLUTION PROFESSIONALS

98
F1. HKIA LIST OF ARBITRATORS

CHAN Hon Wan Edwin*

CHEE Wai Hung Simon*

LEE Kim Keung James*

SHEN Edward*

YEUNG Kwong Sunny*

*Also on the HKIA/HKIS Joint Panel of Arbitrators

99
F2. HKIA LIST OF MEDIATORS

CHAN Hon Wan Edwin*

FUNG Yin Suen Ada

KAN Chee Man Florence*

KAN Cho Yau Kenneth*

LAM Yiu Hon Nevin*

LEE Kim Keung James*

NG Lai Ki Denise

WONG Man Sang*

YEUNG Kwong Sunny*

*Also on the HKIA/HKIS Joint Panel of Mediators

100
F3. LIST OF THE HKIA EXPERT WITNESS

CHAN Bui Sze Suzanne LAM Chi Wai

CHAN Hon Wan Edwin LAM Tin Cho
CHAN Kwok Ho LAM Yiu Hon Nevin
CHAN Tin Yau LAU Man Kwan
CHAN Wing Chuen William LEUNG Dik Sze
CHAU Kei Yun Athena LI Chun Luen
CHE Kwai Leung Chris LI Kwok Hing
CHEE Wai Hung Simon LUK Chung Lam Patrick
CHENG Yuen Kwan Vicky SHEN Edward
CHEUNG Ka Nang Benny TONG Sin Ching
CHEUNG Pak Chiu Patrick TSANG Man Biu
CHO Wing Cheong Peter TSANG Stephen
CHOW Yuen Sai Esther TSE Terence
CHOY Kei Shun Wan Yiu Keung
HUI Miu Ling Suzanne WONG Chi Wai Jacky
KAN Chee Man Florence WONG Hoi Lui Helen
KO Wai Kei, Ricky YEUNG Mona
KONG Chiu Kin UNG Chi Kin

101
F4. ROAD PATH TO HKIA LIST OF ARBITRATORS

Arbitrators admitted into the HKIA List of Arbitrators shall

possess:

1. sufficient experience in arbitration whether as arbitrator,

counsel, expert witness, instructing solicitor or otherwise,

2. good character and not having been removed as

arbitrator in circumstances where moral probity or
competency were an issue;

3. provision of two references in support of the application;

and

4. 7 years post qualification experience of HKIA membership.

Currently, the HKIA/HKIS Joint Dispute Resolution Committee

(JDRC) is the body entrusted by HKIA to assess any application
for inclusion into the HKIA List of Arbitrators. If the
application is accepted, the candidate’s name will be included
into the JDRC’s List of Arbitrators as well as the HKIA’s List.

JDRC’s published criteria for inclusion into the JDRC List of

Arbitrators is very similar to the HKIA’s published criteria, and
the differences are underlined as follow:-

1. Having sufficient experience in arbitration whether as

arbitrator, counsel, expert witness, instructing solicitor
or otherwise. Without prejudice to the generality of the
above, Fellowship of HKIArb and CIArb may suffice for
the purpose; and

2. Good character and not having been removed as

arbitrator in circumstances where moral probity or in-
competency were an issue; and

102
3. Provision of two references in support of the application;
and

4. 7 years post qualification experience of either HKIA or

HKIS membership.

HKIArb, ie, Hong Kong Institute of Arbitrators and CIArb,

Chartered Institute of Arbitrators (East Asia Chapter) are the
two major and only local arbitrator accreditation institutes in
Hong Kong. Their accreditation results are widely accepted in
the local, overseas as well as PRC arbitration community.
Many professional institutes and organizations in Hong Kong
including HKIA, HKIS, HK Law Society, HK Bar Association,
HKIAC, etc., recognize and accept this qualification of their
respective members for inclusion into the respective lists of
arbitrators.

HKIArb is a local establishment is normally based on the ICC

Arbitration Rules while CIArb’s accreditation context is more
inclined towards its UK origin and the application the UK
Arbitration Act. The international, or rather non-national
context of arbitration requires candidates’ fundamental
training towards jurisdictional applications and procedural
fairness as well as the concept of due process and natural
justice. In Hong Kong, arbitration training are available in the
master programmes of University of Hong Kong and City
University of Hong Kong.

Application form for inclusion into the JDRC List of Arbitrators

can be found at:
http://www.jdrc.com.hk/Appoint_Arbitrators_Form.pdf

103
F5. ROAD PATH TO HKIA LIST OF MEDIATORS

HKIA CDRC is the body that processes and determines

any applications from HKIA members to be listed in the
HKIA List of Mediators. The criteria to be fulfilled as
published are as follows:

1 7 years post HKIA qualification experience and member of

HKIAC mediation panel(s); or

2. Substantial experience in and knowledge of mediation,

including:

a. Satisfactory completion of a mediation training

course(s) of 40 hours minimum duration approved by
the Contract and Dispute Resolution Committee; and

b. Mediate or co-mediate at least two actual or

simulated mediation cases. After completion of any
two such live or simulated mediation cases, a
candidate is required to complete a self-evaluation
sheet assessing the mediation process in which the
candidate participated. In addition, a candidate
should obtain in the case of a live mediation, 2
completed evaluation sheets from clients, if possible,
together with the comments from the supervisor on
the candidate’s performance, or in the case of
simulated mediations, comments from the simulation
supervisors. The purpose of the evaluation sheets is
to satisfy the Contract and Dispute Resolution
Committee that an acceptable level of competence as
a mediator has been achieved

HKIAC has been accepted generally as the de facto

accreditation body region-wide while, under the present
market development and statutory control, there are a
number of other accreditation organizations that provide

104
specialized accreditation service for different sectors of the
market. The vision of the government on this point at present
is that, if mediation practices as well as the accreditation
system is becoming unified and managed by a single
organization in one style, the flexibility of having mediators at
different specializations to cater for the special needs of
different sectors of the society will be restricted, thus
dwarfing the effectiveness of the inherent nature of
mediation itself to promote harmonized and consensual
settlement of disputes. These other accrediting
organizations include Hong Kong Mediation Centre, Hong
Kong Law Society, Hong Kong Bar Association, Hong Kong
Construction Arbitration Centre, etc., where regular
accreditation processes are provided. On the other hand,
HKIA and HKIS have organized ad hoc training and
accreditation sessions. The issue here is more on recognition
of qualification. One latest development is that (the only)
reciprocal recognition has been reached between HKIAC and
Hong Kong Law Society on accredited mediators.

There are two processes where a member can be accredited

and included into the HKIA List of Mediators which follows
the prevalent practice world-wide. Stage One refers to a
successful completion of a minimum of 40 hours of mediation
training. This is available in about a dozen channels including
universities and private organizations. Stage Two refers to a
market standard of successful pass for 2 simulated mock
cases where candidates are required to act as mediators
walking through the disputes with parties under coaching.

Application form for inclusion into JDRC List of Mediators can

be downloaded respectively at:
http://www.jdrc.com.hk/Appoint_Mediators_Form.pdf

Application form for inclusion into HKIA List of Mediators can

be obtained upon request.

105
F6. ROAD PATH TO HKIA LIST OF EXPERT WITNESS

To be qualified as one, basic training on the role, duties,

significance and liabilities of expert witness are essential so
that his/her service as such will be able to assist the
adjudicator of the case, whether it be court judge, arbitrator,
adjudicator, dispute resolution board/panel, etc., to decide
the case with more credible relevance to the substantiveness
of the issues in disputes.

Since 2007, HKIA organizes Expert Witness training sessions in

series of five seminars for its members. The expert witnesses
admitted into the HKIA List of expert witness shall possess:

1. sufficient experience in expert witnessing as an architect,

solicitor or a counsel or

2. successfully completion of a five-seminar series of

‘Architect as Expert Witness’ organized by HKIA; and

3. a CV stating professional qualifications in support of the

application.

Check out the latest training programme as announced by

CDRC from time to time.

106
G. USEFUL LINKS

107
G USEFUL LINKS

1. Latest HKIA Lists of Arbitrators, Mediators and Expert

Witness and their entrance requirements.
http://www.hkia.net/UserFiles/File/others/Expert_Witnes
s_Arbitrators_Mediators.pdf

2. HKIA/HKIS Joint Dispute Resolution Committee

http://www.jdrc.com.hk/index.htm

3. Hong Kong Institute of Arbitrators

http://www.hkiarb.org.hk/

4. Hong Kong International Arbitration Centre

http://www.hkiac.org/show_content.php?sec=7

5. Joint Mediation Helpline Office

http://www.jointmediationhelpline.org.hk/

6. Hong Kong SAR Judiciary – Practice Directions 6.1 and 31,

and other official mediation documents.
http://mediation.judiciary.gov.hk/en/index.html

7. HKSAR Department of Justice – Report of the Working

Group on Mediation, Arbitration Bill, HK Cap. 341
Arbitration Ordinance, etc.
http://www.doj.gov.hk/eng/new/index.htm

8. HKSAR Architectural Services Department – Various

General Conditions of Contracts
http://www.archsd.gov.hk/archsd_home01.asp?Path_Lev
1=6

9. Hong Kong International Arbitration Centre

http://www.hkiac.org/show_content.php?sec=7

108
H. HKIA CONTRACT AND DISPUTE RESOLUTION
COMMITTEE

109
H. HKIA CONTRACT AND DISPUTE RESOLUTION
COMMITTEE

Terms of Reference

1. To acquire the knowledge of up to date industry

standards and practice in all forms of dispute resolution
and contractual matters. To disseminate such
information and knowledge to HKIA’s general
membership through publications, lectures or seminars.

2. To represent HKIA and to participate in all external

liaison, communication and cooperation with other
professional or government bodies to facilitate the
promotion of dispute resolution mechanisms applicable
to the construction industry.

3. To accept and assess application from HKIA members for

inclusion in the arbitrators, mediators, expert witnesses
and such pertinent lists as HKIA sees fit. To administer
and maintain such lists in good order for the purpose
designated.

4. Such work responsibilities as the HKIA Council may

designate.

110
List of CDRC Members 2010

Name Contact E-mail address

number

Chairman
SHEN Edward 25086666 shene@srtdesign.com

Deputy Chairman
CHAN Hon Wan 27665800 bsedchan@polyu.edu.hk
Edwin

Members
CHE Chris 28323535 chrische@p-t-group.com
CHEE Wai Hung 25451500 simonchee@simonchee.com
Simon simonchee@hkcac.net

LAI Yip Hung Alex 25255878 alexlai@netvigator.com

LAM Tin Cho Eric 21868915 ericlam2047@gmail.com

LAM Wai Pan Wilson 28674335 lamwpw@archsd.gov.hk

LAM Yiu Hon Nevin 28673713 lamyhn@ab.archsd.gov.hk

LAU Kam Sing Dickie 28037833 wg@netvigator.com

LI Chun Luen 28212616 chunluenli@gmail.com

TSE Hau Ming 29600008 tsehm@cartesian.com.hk,
Terence ttse114@gmail.com
YEUNG Kwong 21381005 asayeung@netvigator.com
Sunny

111
19/F
One Hysan Avenue
Causeway Bay
Hong Kong

Telephone: (852) 2511 6323

Fax: (852) 2519 6011 (852) 2519 3364
E-mail: info@hkia.net, hkiasec@hkia.org.hk