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

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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

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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

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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

iv

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

v

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.

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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

vii

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;

viii

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.

ix

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;

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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

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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

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

Building Contract (2005 edition) Clause 41

42

b. Agreement and Schedule of Conditions of Building Contract (1999 edition) Clause 35

47

2. Modeled Dispute Resolution Clause in Government Construction Contracts

49

E PREVELANT DISPUTE RESOLUTION RULES

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

54 57

2. Hong Kong International Arbitration Centre Domestic Arbitration Rules 1993

64

2

CONTENTS

E PREVELANT DISPUTE RESOLUTION RULES (cont’d)

3. Hong Kong International Arbitration Centre Mediation Rules 1999

81

4. HKSAR Government Construction Mediation Rule 1999 HKSAR Government Administration Guidelines for Mediation in Construction Disputes

88

92

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

Committee (CDRC) 109

A. PREFACE

2

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

3

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.

4

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.

5

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.

6

B. PREVALENT DISPUTE RESOLUTION SYSTEMS

7

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

8

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 so3 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

9

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.

10

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

11

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.

12

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

13

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

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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

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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

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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.

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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

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“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;

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(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

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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.

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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-

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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.

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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.

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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.

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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.

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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

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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).

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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

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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

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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;

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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.

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C. HKIA CODE OF PROFESSIONAL CONDUCT

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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D. PREVALENT DISPUTE RESOLUTION CLAUSES

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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.

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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

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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;

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(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,

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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.

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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

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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.

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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,

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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

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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.

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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).

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E. PREVALENT DISPUTE RESOLUTION RULES

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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.

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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.

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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.

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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)

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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

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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

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(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.

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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.

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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.

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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 %

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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

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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;

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(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.

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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

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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

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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

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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

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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.

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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:

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(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

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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.

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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.

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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.

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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

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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.

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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.

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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

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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

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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

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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;

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(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.

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(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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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

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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/upload/196/1/WB0499.pdf

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F. HKIA DISPUTE RESOLUTION PROFESSIONALS

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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

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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

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F3. LIST OF THE HKIA EXPERT WITNESS

CHAN Bui Sze Suzanne

CHAN Hon Wan Edwin

CHAN Kwok Ho

CHAN Tin Yau

CHAN Wing Chuen William

CHAU Kei Yun Athena

CHE Kwai Leung Chris

CHEE Wai Hung Simon

CHENG Yuen Kwan Vicky

CHEUNG Ka Nang Benny

CHEUNG Pak Chiu Patrick

CHO Wing Cheong Peter

CHOW Yuen Sai Esther

CHOY Kei Shun

HUI Miu Ling Suzanne

KAN Chee Man Florence

KO Wai Kei, Ricky

KONG Chiu Kin

LAM Chi Wai

LAM Tin Cho

LAM Yiu Hon Nevin

LAU Man Kwan

LEUNG Dik Sze

LI Chun Luen

LI Kwok Hing

LUK Chung Lam Patrick

SHEN Edward

TONG Sin Ching

TSANG Man Biu

TSANG Stephen

TSE Terence

Wan Yiu Keung

WONG Chi Wai Jacky

WONG Hoi Lui Helen

YEUNG Mona

UNG Chi Kin

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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

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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

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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

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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.

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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.

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G. USEFUL LINKS

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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_Witness_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_Lev1=6

9. Hong Kong International Arbitration Centre http://www.hkiac.org/show_content.php?sec=7

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H. HKIA CONTRACT AND DISPUTE RESOLUTION

COMMITTEE

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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.

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List of CDRC Members 2010 Name Contact

number

E-mail address

Chairman

SHEN Edward 25086666 shene@srtdesign.com

Deputy Chairman

CHAN Hon Wan

Edwin

27665800 bsedchan@polyu.edu.hk

Members

CHE Chris 28323535 chrische@p-t-group.com

CHEE Wai Hung

Simon

25451500 simonchee@simonchee.com

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

Terence

29600008 tsehm@cartesian.com.hk,

ttse114@gmail.com

YEUNG Kwong

Sunny

21381005 asayeung@netvigator.com

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