3.1 Overview for the Dispute Resolution Mechanism;3.2 Mediation 3.3 ClosingQ&A

Presented by Contract and Dispute Resolution Committee, HKIADate : 25 August, 2012

3.1 Overview of the Dispute Resolution MechanismsAn Overview of Dispute Prevention and Alternative Dispute Resolution (ADR) Mechanisms used in Modern Construction Contracts;The Role of Architects in Dispute Prevention and Dispute Resolution for Modern Construction Contracts;3.2 MediationBrief review on what Mediation is about;Current development of Mediation in Hong Kong;How Mediation relates to Architect (as mediator, as advisor or as party);3.3 ClosingHKIA List of Dispute Resolution Professionals;Q&A

1. An Overview of Dispute Prevention and Alternative Dispute Resolution (ADR) mechanisms used in Modern Construction ContractsA). Dispute Avoidance & Dispute PreventionAvoid dispute is always the best!!Architect’s role as Authorized Person;Architect’s role as leader / coordinator of modern construction contracts – building contracts;Role of Consultants / Project Team – Architects / Engineers / Surveyors / Landscape Architects / Interior Designers etc.;Building Ordinance and related statutes;Terms & Conditions used in Modern Construction Contracts (e.g. HKIA/HKIS/HKICM Standard Form of Contract 2005 Edition);Special Conditions of Contract;Specifications / Particular Specifications / Contract Drawings etc.

1. An Overview of Dispute Prevention and Alternative Dispute Resolution (ADR) mechanisms used in Modern Construction ContractsA). Dispute Avoidance & Dispute PreventionDispute Prevention – Dispute Resolution Advisors (DRA);The role of DRA is to:“Foster co-operation between the Contractor and the Employer and their consultants & sub-consultants;“Minimize the no of claims;“Avoid conflicts at first glance; and;“Settle disagreements or disputes as they emerge and before they become Disputes………”

Selection of DRAUse in ArchSD/ Housing Authority / Engineering Departments / Other Users etc.Selection process includes:-Invitation;Submission (tender);- Fee proposal;- Technical proposal;Joint Selection by Employer & Contractor;DRA Tripartite Agreement;

Relevant Contract Provisionsi). GeneralSCC 80- Dispute Resolution Advisor System;SCC 81- Definition of Disputes;Amendments to GCC 48, 50, 61 & 63;ii). Time Limits for DRA in Contract ProvisionsAmendments to GCC 61;Amendments to GCC 63;Amendments to GCC 48(2);Amendments to GCC 50.Extension of Time Limits;

Specific Rolesi). Familiarization with Contract provisions;ii). Introduction Meeting / Pre-Meeting;iii). Monthly involvement / monthly report;iv). Cost Effective solutions;v). Neutral & Independent 3rd Party;vi). Rapid Response to conflicts, differences or disputes;vii). Avoid problems to escalate to Disputes.

1. An Overview of Dispute Prevention and Alternative Dispute Resolution (ADR) mechanisms used in Modern Construction ContractsB). Alternative Dispute Resolution (ADR)Advantages of ADR in comparison to litigation;Construction Mediation;Construction Arbitration;Other forms of ADR (e.g. Adjudication / Expert Determination etc.)

1. An Overview of Dispute Prevention and Alternative Dispute Resolution (ADR) mechanisms used in Modern Construction ContractsB). Alternative Dispute Resolution (ADR)Advantages of ADR in comparison to litigation;Construction Mediation;Construction Arbitration;Other forms of ADR (e.g. Adjudication / Expert Determination etc.)

B). Alternative Dispute Resolution (ADR)i). What is ADR?“ADR may be defined as a range of procedures which serve as alternatives to the adjudicatory procedures of litigation and arbitration for the resolution of disputes, generally but not necessarily involving the intercession and assistance of a neutral third party who helps to facilitate such resolution.”(Source: Henry Brown & Arthur Marriott, “ADR Principles and Practice’, Sweet & Maxwell, 1st

Edition, p.9)

B). Alternative Dispute Resolution (ADR)i). What is ADR?“Public policy is clear from many authorities that parties should be encouraged so far as possible to settle their disputes without reference to litigation.” (per Oliver L.J.)Cutt’s v Head [1984] Ch. 290.

B). Alternative Dispute Resolution (ADR)ii). Use of ADR in the Construction IndustryConstruction Industry is one of the earliest sector to use ADR to resolve disputesBuilt-in Dispute Resolution Clause in Construction Contracts (e.g. HKIA/HKIS/HKICM Standard Form of Building Contracts 2005 Edition or HKSAR Government GCC for Building Works 1999 or MTRC / Engineering Contracts etc.);Practice Direction 6.1 – Construction Disputes as special type of disputes;Guidelines on Dispute Resolution (2010), Hong Kong Construction Industry Council;Construction Industry Council’s proposed New Dispute Resolution Systems for Construction Contracts (2012), Task Force on Dispute Resolution;Practice Direction 31 – [For Mediation only. Not for Construction Mediation.].

B). Alternative Dispute Resolution (ADR)iii). Advantages of ADRNeutrality & Impartiality;Expertise;Private & Confidential;Flexibility;Evidence;Representation;Finality (for Arbitration only that is final and binding and not subject to appeal generally);Party Autonomy;Speed & Cost (especially for Mediation);Enforceability (generally refers to Arbitration that will be final and binding as well as enforceable in other countries under New YorkConvention);Consensus and Win-Win Options to resolve parties dispute (for Mediation only as it is a voluntary, interest-based and consensual process).

C). Construction MediationWhat is Mediation?“Mediation is a structured process comprising one or more sessions in which an impartial mediator, without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following –a. Identify the issues in dispute;b. Explore and generate options;c. Communicate with one another;d. Reach an agreement regarding the resolution of the whole, or part of the dispute.”(Section 4(1), Mediation Ordinance – effective date of the Ordinance to be announced.

C). Construction MediationAdvantages of Mediation:-a. Focus on parties interests – parties can communicate & understand each others’ needs, concerns and problems;b. Informed Decisions / Mutually Acceptable or Win-Win Solutions – Parties are free and have their responsibility to decide under the facilitation of the mediator on their options to achieve a few mutually acceptable options or win-win options etc. to resolve their disputes amicably;c. Flexible – in both procedures, rules and arrangement of joint sessions or private sessions;d. Direct Communications – mediator to facilitate parties to directly communicate;e. Consensus – parties negotiate and voluntarily reach consensus or settlements on terms mutually acceptable to each other or as a win-win options. Relationships among parties can often be preserved.

C). Construction Mediation (Cont’d)Advantages of Mediation:-f. Confidentiality – the mediation communications, including discussions in joint or private sessions, parties communications with the mediator, mediation procedures and documents disclosed are protected under Section 8 of the Mediation Ordinance and parties’signed Agreement to Mediate;g. Private, Voluntary and Without Prejudice – the mediation is entirely between the parties in the dispute and protected by rule of Confidentiality. Parties & Mediator can withdraw from the mediation when they considered needed or appropriate. All the mediation communications are without prejudice and not permitted to be usein court litigation (or subsequent arbitration for Med-Arb Procedures under Section 32 & 33 of Arbitration Ordinance (Cap 609), unless where required by Court. h. Speedy and Cost-Effective – Compared with litigation and arbitration, mediation is a ADR process that is more speedy and cost-effective. But, parties may not arrive in settlement agreements.

C). Construction MediationEssential Ordinances, Code of Conduct and Mediation Rules etc.a). Mediation Ordinance – the Mediation Bill had been enacted by LegCo in June, 2012, pending the effective date for implementation. Retrospective effects of Mediation Ordinance;b). Hong Kong Mediation Code – a Cod of Conduct drafted and prepared by the Department of Justice to control the standards and best practices of Mediation;c). Practice Direction 6.1 (Feb., 12, 2009) & Effective on April, 2009) – Practice Direction issued by the Judiciary of HKSAR to control and set procedures for Construction Disputes. Voluntary Construction Mediation is also covered;d). Practice Direction 31 (Feb., 12, 2009) – Practice Direction issued by the Judiciary of HKSAR to control and set the procedures of Voluntary Mediation, including Mediation Notice, Mediation Response, Mediation Minutes, Mediation Certificates, potential Cost Sanction where the Court finds to be necessary and fit to do so;e). Contract Dispute Resolution Clauses –- e.g. Clause 41 of HKIA/HKIS/HKICM Standard Form of Buildings Contract 2005 Edition; - e.g. Hong Kong Government GCC for Building Works 1999 Edition;- e.g. Hong Kong Government GCC for Civil Engineering Works 1999 Edition;- e.g. Engineering or MTRC Contracts etc.)

C). Construction MediationEssential Ordinances, Code of Conduct and Mediation Rules etc. (Cont’d)f). Mediation Rules – Mediation Rules are set up by individual professional bodies or Government supported institutions. The most common Mediation Rules may include:-- e.g. Joint Mediation Helpline Office Limited (JMHO) Mediation Rules; - e.g. Hong Kong Government Mediation Rules;- e.g. Hong Kong International Arbitration Centre (HKIAC) Mediation Rules; - e.g. Hong Kong Mediation Centre (HKMC) Mediation Rules; - e.g. Chartered Institute of Arbitrators (CIArb) Mediation Rules; - e.g. Hong Kong Construction Arbitration Centre (HKCAC) Mediation Rules etc.g). Institutions supported by Government to promote / facilitate use of Mediation –- e.g. Joint Mediation Helpline Office Ltd (JMHO) [Note: relevant to Construction Mediation.];- e.g. Mediation Information Office in High Court starting 4 January, 201 [Note: relevant to Construction Mediation.]; - e.g. Building Management Mediation Coordination Office (BMMCO) set up under Lands Tribunal – [Note: for Building Management cases under Lands Tribunal only];- e.g. Financial Dispute Resolution Centre (FDRC) – [Note: for financial disputes only.]h). Arbitration Ordinance (Cap 609) – Section 32 & 33 of Arbitration Ordinance covers Med-Arb or Arb-Med process under the laws of Hong Kong.

C). Construction MediationConstruction Mediation in Practicea). Construction Mediator – jointly agreed and appointed by the parties (e.g. under Practice Direction 6.1); or appointed by an Mediation Appointment Authority (e.g. the appointment by Presidents or Vice-Presidents of HKIA and HKIS; or where it fails, to be appointed by HKIAC under the Dispute Resolution Clause of HKIA/HKIS/HKICM Standard Form of Buildings Contract 2005 Edition);b). Parties voluntary entered into Mediation – the parties in dispute (e.g. Employer; Main Contractor; Sub-Contractors). Under the rule of Privity of Contract, generally only the Contracting Parties will enter into a dispute, requiring voluntary mediation. However, the decisions or certifications of the Architect / Engineer / Surveyor may be challenged and form grounds / issues in dispute.c). Consultants / Project Team etc. – the decisions / certifications by Consultant (e.g. Architect / Engineer / Surveyor) on matters like Disqualification of materials; Failure of testing and technical specification, assessment of Extension of Time; Payment Certificates, or Defect List and Practical Completion etc. may often form the issues of dispute in the “Factual Matrix”;

C). Construction MediationConstruction Mediation in Practiced). Factual Witness & Witness Statements – Unlike litigation or arbitration, normally the witness wont appear in the Construction Mediation to save cost and time (at least to my experiences / observations). But parties are free to invite witness to attend the mediation provided that witness would follow the rules of mediation and terms & conditions of Agreement to Mediate to be signed by them. Inclusion of Witness Statements are sometimes common in the Mediation Bundle.e). Expert Witness and Report from Expert Witness – experts may or may not appear in construction mediation. However, it is common the Report from Expert Witness would be included in the Mediation Bundle. This can be used to facilitate the negotiation and mediation process under the facilitation of the mediator.f). Legal Representatives – It is common for parties to have their legal representatives to attend the mediation sessions (i.e. joint session and private sessions) to assist parties to present their views, case and legal issues behind. The legal representative may also give legal advice to the parties during the entire process of construction mediation.

C). Construction MediationConstruction Mediation in Practiceg). Agreement to Mediate – It is required under the Mediation Ordinance and Hong Kong Mediation Code (as well as many Mediation Rules) that the Mediator need to agreed and signed an Agreement to Mediate prior to commencement of Mediation Sessions. The Department of Justice had drafted an Agreement to Mediate where the terms & conditions can applied to many different types of cases,including construction mediation. Mediators can revise the terms and conditions in construction mediation to suit the nature of the case, Court’s order, arbitration proceeding, use of expert witness etc.h). Mediation Bundle – the documents the parties may wish to discuss in the mediation. It may include Statement of Claims; Statement of Defence and Counter-Claim; Reply and Statement of Defence to Counter-Claim; Expert Reports; Court Orders; Answers to Request for Further Particulars etc.i). Settlement Agreement (Partial or Full & Final) – Parties during the voluntary mediation may arrive at some mutual consensus under the mediator’s facilitation. The mediation may assist to prepare a Partial Settlement Agreement or a Full & Final Settlement Agreement for the parties to consider and sign. Once the Settlement Agreement is signed by Parties, it will be legally enforceable.

D). Construction ArbitrationWhat is Arbitration?“Arbitration” means any arbitration, whether or not administered by a permanent arbitral institution.(Source: Section 2(1) of the Arbitration Ordinance (Cap 609) on Interpretation)“Binding determination of the dispute by a third party neutral appointed by the parties. It is the primary method of binding determination of disputes in the construction industry and a number of other industries.”(Source: Tim Hill, Partner of Hogan Lovells)

D). Construction ArbitrationAdvantages of Arbitration:Enforceability - Final & binding arbitration awards;International recognition of arbitral awards – under New York Convention or as Mainland Awards [Note:- See Sections 82 – 91 of Arbitration Ordinance (Cap 609) on Recognition and Enforcement of Awards; or See Sections 92 – 98 of Arbitration Ordinance (cap 609) on Enforcement of Mainland Awards.]Neutrality;Flexibility;Party Autonomy;Choice of languages; places of arbitration; nationality of arbitrators etc;Specialized expertise of arbitrators;Speed & Economy;Confidentiality;(Source: International Chamber of Commerce (ICC)).

D). Construction ArbitrationArbitration Framework in Hong Kong:Arbitration Ordinance (Cap 341) – Domestic and International Arbitration. [Note:- It has been repealed. Historically, construction arbitration in Hong Kong was a form of domestic arbitration.]Arbitration Ordinance (Cap 609) – Unitary Regime [Note:- enacted in April, 2010 and it the current law on arbitration.]Unitary Regime – created for both domestic and international arbitration;Adopted and utilized the UNCITRAL Model Law on International Commercial Arbitration, commonly known as the UNCITRAL Model Law;Section 99 of Arbitration Ordinance (Cap 609) allows parties to opt-in for all or any of the sections in Schedule 2 of Arbitration Ordinance (Cap 609) by express agreement;Section 100 of Arbitration Ordinance (Cap 609) provides for automatic application of these provisions if the arbitration agreement is a domestic arbitration agreement entered into before or within 6 years from commencement of the ordinance. [Note:-this applies to construction contract as automatic opt-in.]Section 101 of Arbitration Ordinance (Cap 609) provides for automatic opt-in provisions under Section 100 to extend to sub-contracts or arbitration agreements down the line unless they are foreign contracts or largely performed outside H.K. Section 102 of Arbitration Ordinance (Cap 609) enables parties to “opt-out” of the provisions under Schedule 2 of Arbitration Ordinance.

D). Construction ArbitrationArbitration Framework in Hong Kong (Cont’d)Hence, construction contracts in Hong Kong will mostly continue to be arbitrated under traditional domestic regime unless the parties opt-out otherwise. (Sections 99 to 102 of Arbitration Ordinance (Cap 609) refers).In the Hong Kong SAR Government GCC of Building Contracts 1999 Edition (or HKSAR Govt GCC for Civil Contracts 1999), it is expressly provided that the Hong Kong International Arbitration Centre (HKIAC) Domestic Arbitration Rules applies unless parties agree to the contrary.Consolidation of arbitration (i.e. consolidation of 2 or more arbitration proceedings) is provided where the Court may ordered them to be consolidated on such terms it thinks fit. (See Section 2 of Schedule 2 of Arbitration Ordinance (Cap 609))

D). Construction ArbitrationOverview of Arbitration Ordinance (Cap 609)Section 3(1) – Objective of the Ordinance is to facilitate fair & speedy resolution of disputes by arbitration without unnecessary expense.Section 3(2)(a) – Party Autonomy;Section 3(2)(b) – Court should interfere in arbitration only as expressly provided in the Ordinance.Section 18 – Confidentiality to protect / maintain business relationship and reputation (Note: See also Article 39 of HKIAC Administered Arbitration Rules)Sections 23 & 24 that adopts Articles 10 & 11of UNCITRAL Model Law –Numbers, Nationality & Qualifications of Arbitrators (Note: See also Articles 6 – 11 of HKIAC Administered Arbitration Rules);Section 63 – manners for case representation;Section 48 that adopts Article 19 of UNCITRAL Model Law – Flexibility on choice of the place of arbitration;Section 50 that adopts Article 22 of UNCITRAL Model Law – Flexibility on choice of language to be used;Sections 35, 36, 37, 38, 39, 40, 41 & 42 that adopts and supplements Articles 17, 17A to 17G of UNCITRAL Model Law – Arbitral tribunal possesses powers on granting orders, directions and awards.

D). Construction ArbitrationOverview of Arbitration Ordinance (Cap 609) (Cont’d)Sections 3(1), 3(2), 12, 23(1), 23(2), 24(2), 47, 48, 50, 51(2), 52(1), 64, 99, 100, 101 & 102 – Provisions allowed for “flexibility” and/or “party autonomy”;Section 47(1) & 47(3) – Arbitration dont need to follow strict rules of evidence;Sections 54 & 63 and Articles 26 of UNCITRAL Model Law – these provisions deals with “experts appointed by arbitral tribunal” and “representation and preparation work”. Parties are free to choose local/foreign legal advisors or expert witness;Section 81 that adopts Article 34 of UNCITRAL Model Law – arbitration awards are final and binding and not subject to appeal for international arbitration. Application for setting aside arbitration awards are only made under exclusive recourse/grounds as set out in Article 34(2) of UNCITRAL Model Law . [Note:- However, construction arbitration are mostly conducted as domestic arbitration. Appeal to Court can be made on “question of law” under Section 5 ofSchedule 2 of Arbitration Ordinance (Cap 609), subject to Court’s determination. Further, a challenge to remit or set-aside an award can be made on the grounds of “serious irregularity affecting the tribunal, the proceedings or award” under Section 4 of Schedule 2 of Arbitration Ordinance (Cap 609).See “Nema Guidelines” as refined in Aden Refinery Co. Ltd v Ugland Management Ltd. Se Swire Properties Ltd & others v Secretary of Justice [2003] 6 HKCFAR 236.]

D). Construction ArbitrationOverview of Arbitration Ordinance (Cap 609) (cont’d)Section 47(1) that adopts Article 19 of UNCITRAL Model Law – Parties are free to agree on Arbitration Procedures. In construction arbitration, parties are free to choose document only arbitration to save cost and time for simple cases. Arbitrators are not bound to follow courtprocedures and rules of evidences;Schedule 2: Section 2 of Arbitration Ordinance (Cap 609) – on “consolidation of arbitrations”. Construction arbitration is commonly used to resolve “multi-tier disputes” in construction projects involving employer, contractors, consultants, sub-contractors, suppliers etc. by “consolidation of disputes”. This is impossible in litigation generally due to privity of contract. Schedule 2 may be expressly opt-for or automatically opt-in under Sections 99 – 102 of Arbitration Ordinance (Cap 609).Sections 82, 83, 84, 85, 86, 87, 88, 89, 90 & 91 that adopts and supplements Articles 35 & 36 of UNCITRAL Model Law – Recognition and Enforcement of Arbitration Awards under New York Convention as Convention Awards. Unlike litigation or mediation, arbitration awards are recognized and enforceable overseas in more than 140 countries under the New York Convention. This is often of significance forconstruction disputes.

D). Construction ArbitrationOverview of Arbitration Ordinance (Cap 609) (cont’d)Sections 92, 93, 94, 95, 96, 97 & 98 - on Enforcement of Mainland Awards. Hong Kong is a special administration region of the PRC China. Since 2000, the Supreme Court of the PRC had declared that arbitration awards made in Hong Kong can be recognized or enforced in a list of defined Courts of the PRC under China’s domestic arbitration law;Schedule 2: Section 5 of Arbitration Ordinance (Cap 609) – on “appeal against arbitration award on question of law”. Arbitration awards for construction arbitration are mostly arranged under the traditional domestic model even after the enactment of the new Arbitration Ordinance (Cap 609). Arbitration awards are final and binding. However, domestic arbitration may be subject to appeal on “question of law”. See also Schedule 2: Section 5(8) that “Leave of he Court or the Court of Appeal is required for any appeal from a decision of the Court under S.5(5) of Schedule 2 to confirm, vary, remit or set aside the award in whole or part.

D). Construction ArbitrationSpecial Features of ArbitrationDoctrines of “Kompetenz-Kompetenz” and “Separability” – an arbitrator has jurisdiction to rule on his own jurisdiction, including the objection to the validity of the arbitration agreement even if the contract is null & void, subject to Court’s final determination. [Note:- See Section 34 of Arbitration Ordinance (Cap 609) and Article 16 of UNCITRAL Model Law.]Impartiality, Independence and Rule of Natural Justice – An arbitrator can be subject to challenge on its jurisdiction under Section 26(1) of Arbitration Ordinance (Cap 609) that adopts Article 13 of UNCITRAL Model Law and Section 25 and Article 12 of Model Law regarding its impartiality and independency. An arbitral tribunal can be challenged on breaching the “rules of natural justice”(See e.g. Sections 46 & 52 of Arbitration Ordinance (Cap 609)). Wide sources of powers conferred to arbitrators or tribunal – Sections 47, 52, 56 & 69 of Arbitration Ordinance (Cap 609) conferred wide sources of powers to the arbitral tribunal such as security of costs or claims; power to decide on hearing or arbitral proceedings; directing evidences; discovery of documents; interrogatories; amending or making additional awards; costs; interim measures etc. Additional powers may be given to the arbitrators under the Arbitration Agreement, Arbitration Rules (e.g. HKIAC Administered Arbitration Rules or ICC Rules).

E). Construction Mediation & Arbitration etc. & Role of ArchitectArbitration & ADR in Practice – Integration with DRA and/or Mediation etc. 1). Disagreement;2). Partnering or informal dispute resolution activities (conducted according to contract terms as provided or architect /engineer /surveyor as “negotiator” and “quasi-arbitrator” to avoid disputes)3). Formal disagreement;4). Good faith discussions by site personnel or consultant architect / engineer / surveyor etc.;5). Meeting(s) with Dispute Resolution Advisor (DRA) where contracts have allowed for (e.g. public contracts by ArchSD, Housing Authority, CEDD, MTRC etc.);6). Report of DRA to disputed parties (where applicable);7). Senior Staffs Meeting of disputed parties to decide;

E). Construction Mediation & Arbitration & Role of ArchitectArbitration & ADR in Practice – Integration with DRA and/or Mediation etc. (Cont’d)8). Dispute settled or Dispute continues;9). Parties voluntarily agreed if Construction Mediation is to be adopted. (e.g. according to Dispute Resolution Clause in HKIA/HKIS/HKICM Standard Form of Building Contracts 2005 Editions or HKSAR Govt GCC for Building Contracts 1999 Edition or under Practice Direction 6.1 etc.)10). Where parties voluntarily agreed on use of construction mediation, if the mediation is successful, the parties’ decision can be agreed as a Partial Settlement Agreement or Full & Final Settlement Agreement. When the parties have agreed on its terms and signed, the Settlement Agreement would be legally binding;11). Under Sections 32 & 33 of Arbitration Ordinance (Cap 609), the allowance for Med-Arb procedures can enable the Mediation Settlement Agreement to be converted to Arbitration Consent Award that is final and binding in law;12). Where mediation fails or where parties do not go for mediation, arbitration will be the default mechanism to resolve disputes where arbitration agreement or dispute resolution clause is provided.

E). Construction Mediation & Arbitration & Role of ArchitectArbitration & ADR in Practice – Integration with DRA and/or Mediation etc. (Cont’d)13). Commencement of Arbitration – Notice to Commence arbitration;14). Parties to nominate or agreed on the arbitrator;15). Where parties cannot agreed on the arbitrator, it will usually be appointed by an independent arbitration appointing body (e.g. President of HKIE or HKIArb under civil contracts; joint appointments of Presidents or vice-Presidents of HKIA & HKIS; Chairman of CIArb or Chairman of Hong Kong Bar Association etc. depending on the parties’agreement or terms in the dispute resolution clause.16). Where such appointment fails, HKIAC is the default arbitration appointment authority under Arbitration Ordinance (Cap 609).17). Parties to agreed on Arbitration Bundle;18). Preliminary Meeting – arbitrator to agreed or set the arbitration proceedings based on parties’ submissions on Arbitration Bundle. The hearing date or procedures and/or use of expert evidences etc. will generally be covered and agreed in Preliminary Meeting.

E). Construction Mediation & Arbitration & Role of ArchitectArbitration & ADR in Practice – Integration with DRA and/or Mediation etc. (Cont’d)19). Discovery and Disclosure of Documents;20). Architects (or other construction professionals or site personnel) to assist in discovery and disclosure stage.21). Architects (or other construction professionals) to act as factual witness on decisions under Contract terms or Certifications under contract provisions;22). Independent architect (or other construction professionals) as a neutral third party to act as expert to giveexpert evidence & expert opinion to assist the arbitrator or arbitral tribunal;22). Arbitration Proceedings & Hearings – Arbitrator to hear evidences of factual witness and/or expert witness in proceedings; cross examination of evidences; separate meeting of experts);23). Arbitration Award – to be issued with reasons.

F). Adjudication & Expert DeterminationOther ADR methods used in overseas.Generally, they are lack of actual uses in Hong Kong construction

industry.Adjudicators or Expert Determinator are also neutral third party to

decide on disputes;However, their powers are not governed in laws of Hong Kong

and their process are lack of statutory protection as compared to mediation and arbitration.They are recently included in Construction Industry Council’s

2012 consultation paper on new dispute resolution system for construction industry. Wait to see the future development.

Completion of Part 1 PresentationTHANK YOU!

Presented by:

Mr. Lam Wai Pan, WilsonB.A.(A.S), B.Arch (Dist), MBA, MSc. Fin. (1st Class Hon)

MSc. Const. & Econ., LLM (Arb & DR),HKIA, RIBA, MCIArb, FHKIArb, FHKCAC,

BEAM Pro, Registered Architect,Authorized Person (Architect),

Accredited Mediator (HKIAC, HKIArb, HKIA, HKMC & HKCAC)