Dispute Resolution in Construction Industry Recent … · · 2017-06-27Dispute Resolution in...
Transcript of Dispute Resolution in Construction Industry Recent … · · 2017-06-27Dispute Resolution in...
Dispute Resolution in Construction Industry
Recent Trends and the Way Forward
Christopher To - Executive Director, Construction Industry Council
13 November 2013
Society of Construction Law Hong Kong
Content
• Characteristic of Construction Industry in Hong Kong
• Payment Problems and Legislative Approaches
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• Adjudication
• Expert Determination
• Independent Expert Certifier (IEC)
• Dispute Resolution Advisor (DRA)
• CIC’s work on Dispute Resolution and Partnering
Characteristic of Construction
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Characteristic of Construction Industry in Hong Kong
Characteristics of the Construction Industry in Hong Kong
• One of the major pillars of theoverall economy and majoremployers in Hong Kong
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� overall contribution to GDP was3.3% in 2010
� overall employment share was7.8% in 2011
� There were 1,228 activeconstruction sites in March2013
Characteristics of the Construction Industry in Hong Kong (Cont’d)
• Wide range of construction activities - fromnew construction to alteration, repair ordemolition of buildings and civilengineering works
• High level of multi-tier sub-contracting
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• Projects of different scale and complexity
• Increasingly complex and fast-trackconstruction projects
• Changes to the details of the design aretypical and frequent throughout theconstruction process
• Intense competition among contractors
Characteristics of the Construction Industry in Hong Kong (Cont’d)
• Latest statistics (as at 13 June 2013)
Q1 2013
(HK$ billion)
% change
Gross value of construction works in nominal
terms performed by main contractors
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terms performed by main contractors
• Private sector sites
• Public sector sites
• Locations other than sites
11.6
16.3
15.2
+3.4
+24.0
+14.2
Total 43.2 +14.4
Residential building projects 9.3 +8.8
Transport projects 10.5 +55.7
Characteristics of the Construction Industry in Hong Kong (Cont’d)
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Parties Involved in Construction Projects
• Rights and obligations of the parties are governed by a contractual web formed by a series of separate and often independent contracts
Employer
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Employer
Architect/civil engineer
Quantity surveyor
Structural engineer
Services engineers
General contractor
Domestic sub-contractor
Sub-sub-contractor
Supplier
Nominated sub-contractor
Example: Traditional Form of Contract
CIC’s Work on Dispute Resolution
The Reference Materials summarises the
discussions and recommendations of the
Reference Materials for Applications of Dispute Resolution in Construction Contracts (Version 1) January 2013
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discussions and recommendations of the
Task Force on Dispute Resolution
Documentation on the sample contract
clauses and to facilitate the incorporation of
the relevant alternative dispute resolution
methods recommended in the 2010
Guidelines into construction contracts.
Payment Problem and
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Payment Problem and Legislative Approaches
Payment Problems and Legislative Approaches
� “Construct for Excellence” reportpublished by the Construction IndustryReview Committee in 2011.
� Suggested the need for enacting
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� Suggested the need for enactingsecurity of payment legislation
� to facilitate quick and easy payment forwork or suppliers provided by contractors,subcontractors and suppliers to headcontractors or principals underconstruction contracts
Payment Problems and Legislative Approaches: HKCA Survey
2008
HKCA conducted a survey on“General Building Contractors andSpecialist Contractors’ Status on
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Specialist Contractors’ Status onCash Flow & Other Relation Issues”
Objectives:
� to collect information on theextent of cash flow problems
� to formulate strategies toimprove the situation
Payment Problems and Legislative Approaches: HKCA Survey (Cont’d)
Results:
• Inflation and high cost of materials was a big problemfor contractors
• Outstanding payment problem from the contract parties
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• Outstanding payment problem from the contract parties
• Insufficiency of new projects awarded
• Demand on wages by workers
• Other contract parties’ non-proactive attitude on contractadministration
• Payment in disagreement with the other contract parties
• Change of terms and requirements by the other contractparties
Payment Problems and Legislative Approaches: CIC Survey
2009
• CIC conducted a survey on “ Problems of Outstanding Payment in Construction Supply Chain”
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• Survey respondents: employers, consultants, contractors, subcontractors and suppliers
• Objectives:
� to identify problems of outstanding payment within the industry
� to formulate strategies to improve the situation
Payment Problems and Legislative Approaches: CIC Survey (Cont’d)
Results (serious payment problems in private works):
• Late resolution of disputes
• Continuation of work while arrears were notsettled
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settled
• Late settlement of final account
• Delay in certification of interim payments
• Other obstacles for payment
Payment Problems and Legislative Approaches: CIC’s Initiatives
Initiatives proposed by CIC to address the seriouspayment problems:
• To set up
�Task Force on Standard Contract Provisions for
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�Task Force on Standard Contract Provisions forDomestic Subcontracts
�Task Force on Dispute Resolution Documentation
�Task Force on Security of Payment Legislation
Payment Problems and Legislative Approaches: CIC’s Initiatives (Cont’d)
Task Force on Standard Contract Provisions forDomestic Subcontracts
• To work out a set of standard clauses forincorporating into domestic subcontracts as
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incorporating into domestic subcontracts asappropriate
• The standard domestic subcontract is expected tobe launched in 2013
Payment Problems and Legislative Approaches: CIC’s Initiatives (Cont’d)
Task Force on Security of Payment Legislation
• To consider the necessity of security of paymentlegislation in Hong Kong
• To made recommendation of suitable legislative
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• To made recommendation of suitable legislativemeasures to the government
Payment Problems and Legislative Approaches: CIC & DEVB Survey
2011
Task Force on Security of Payment Legislation andDevelopment Bureau (DEVB) conducted anindustry-wide survey on “Payment Practice in theConstruction Industry”
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Construction Industry”
• Objectives:
�To ascertain the magnitude of the paymentproblems in the local construction industry
�To seek views of stakeholders on the effectivenessof possible administrative and legislativesmeasures to secure payments in the constructionsupply chain
Payment Problems and Legislative Approaches: CIC & DEVB Survey (Cont’d)
Details:
• Survey frame: 8,100 companies
• Reference period: 1 Jan 2009 – 31 Dec 2010
• Participants: Private sector developers and public
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• Participants: Private sector developers and publicsector employers, Consultants, Main contractors,Sub-contractors (both specialist and domesticsub-contracts), Suppliers
• Selected sample: 1,900 companies
• No of interviews conducted: 1,200
• Overall response rate: 64%
Payment Problems and Legislative Approaches: CIC & DEVB Survey (Cont’d)
Key findings:
• Average outstanding payments per annum
� for main contractors: HK$9.4 billion (8% of annualaverage business receipts)
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average business receipts)
� for sub-contractors: HK$9.9 billion (12% of annualaverage business receipts)
• Major reason for payment problems encounteredby the main contractors, sub-contractors andconsultants
� disagreements and disputes between the contractingparties
Payment Problems and Legislative Approaches: CIC & DEVB Survey (Cont’d)
Key findings (cont’d):
• Considered payment problems to be very serious/seriousSubcontractors Suppliers Main
Contractors
Consultants
57% 59% 45% 37%
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• Considered conditional payment practice as not acceptable/not reasonable
57% 59% 45% 37%
Subcontractors Suppliers
74% 79%
Payment Problems and Legislative Approaches: CIC & DEVB Survey (Cont’d)
Key findings (cont’d):
• Respondents’ views on the effectiveness of administrative and legislative measures to improve payment problems in contracts
Administrative Measure Legislative Measures
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Administrative Measure Legislative Measures
Public Works Very Effective/Effective Very Effective/Effective
Private Works Very Effective/Effective
Payment Problems and Legislative Approaches: CIC & DEVB Survey (Cont’d)
Survey report:
• Incorporated with views from REDA, HKCA, HKFEMCand HKCSA
• Submitted to DEVB in September 2012
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• Submitted to DEVB in September 2012
�as a reference for the Government to effectively enactsuitable legislation to resolve the underlining problemsof payment practice along the construction supplychain
Working Group on Security of Payment Legislation for the Construction Industry
• Working Group on Security of Payment Legislation for theConstruction Industry was set up in October 2012.
Issues with general
consensus• A total of 49 key
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67%8%
25%
consensus
Issues with
difference in views
but with adequate
deliberations
Issues with
difference in views
and require further
deliberations
issues have beendiscussed.
(33)(4)
(12)
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with General Consensus
• Scope of Application
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� Applicable when law of the contract is not HK law
� Same treatment for parties with different nationalities
� To include different types of consultancy services (e.g. feasibility andplanning studies), but excluding accounting, legal and financial services
� To include ‘Supply Only’ contracts and ‘Supply & Installation’ contracts
� To include industry / specific exclusions (e.g. employment contracts),insurance, loans, BOT, PPP and investment contracts.
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with General Consensus
• Rights to Progress Payments� Parties should be free to agree when entitlement to payment would rise
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� Parties should be free to agree when entitlement to payment would rise
� Default payment interval provided in SOP legislation (Default Interval = 1calendar month)
� Payment period - 60 days (interim progress payment) and 120 days (finalpayment)
� Payment response period - 30 days (interim progress payment) and 90days (final payment)
� Payment claim model to be adopted
� Failure to respond to a payment claim should not lead to full amount ofclaim becoming due for payment
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with General Consensus
• Adjudication� Right to adjudicate applies to claims / disputes arising up or down the contractual
chain� Time limits for referring claims / dispute = 28 days
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� Time limits for referring claims / dispute = 28 days� No exclusion of certain types of claim from adjudication� No statutory control on who can be an adjudicator and a nominating body (left to
the free market)� Parties to be free to agree the nominating bodies and to agree their own
adjudicator. HKIAC to be the sole default nominating body� Adjudicators should not have the power to order one party to pay the other’s legal
costs� Adjudicator should have the power to order one party to pay adjudicator’s costs
and expenses� The SOP legislation should not provide for a review adjudication mechanism
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with General Consensus
• Right to Suspend Works for Non-Payment� Party intending to suspend for non-payment should give notice to the principal and
site owner (if known)
• Prohibition on Conditional Payment
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• Prohibition on Conditional Payment� Pay-when-paid type provisions should be outlawed� SOP legislation should prohibit ‘pay-when-certified’ provisions. No exceptions
should be allowed for Nominated Subcontractors� ‘Pay-when-paid’ arrangements should be ineffective in the event of insolvency
• Enforcement of Adjudicator’s Decision� Express provision for enforcement by allowing adjudicator’s decision to be filed
directly in court� No express right to stay enforcement pending conclusion of court / arbitration
proceedings� Adjudicator should not have express power to issue approval for a charging order
against the site where a claim was against the site owner
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with Different Views and Adequately Deliberatedin Previous Meetings
• Geographical Scope (Application of SOP legislation limited to work carriedout inside HK due to legal uncertainty and small number of cross-boundary
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out inside HK due to legal uncertainty and small number of cross-boundaryprojects)
• Written and Oral Contracts (Written, oral and partly written and oralcontracts to be included in the SOP legislation)
• Limitations on / Conditions Precedent to the right to Adjudication(Calculation of progress payment, statutory right to adjudication, initiation ofadjudication in relation to payment response, right to adjudication followingclaim handling procedures)
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with Different Views for Further Deliberations
• Adjudication timetable and problems of ‘Ambush’ and insufficient time forlarge / complex claims
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large / complex claims� A period of 60 working days should be the maximum time allowed for the adjudication
process (from submission of adjudication claim to adjudicator’s decision)
� Flexibility should be provided for preparation of defence by respondent and/or therendering of adjudicator’s decisions in complex cases
� Time for responding party to submit his defence should be 20 working days
� Adjudicator has no power to dismiss claims considered too large and complex foradjudication
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with Different Views for Further Deliberations
• Statutory right to suspend works for non-payment� There should be a statutory right to suspend work by the unpaid parties in the event of
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� There should be a statutory right to suspend work by the unpaid parties in the event ofnon-payment by paying party.
� Right to suspend should arise only after adjudication and when respondent failed tocomply with adjudicator's decision.
� Unpaid parties should have advance notice of suspension to the paying parties
� Unpaid parties should have statutory rights to additional time for completion andreimbursement of costs arsing from suspension
� Flexible approach to assess entitlement to EOT and additional costs
� Unpaid parties should be entitled to suspend the whole or part of works or to reduce rateof progress
Working Group on Security of Payment Legislation for the Construction Industry (Cont’d)
Key Issues with Different Views for Further Deliberations
• Enforcement of Adjudicator’s decision� The principal (the employer of the non-paying party who fails to honour an adjudicator’s
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� The principal (the employer of the non-paying party who fails to honour an adjudicator’saward) has the right (but not obligation) to make direct payment of an adjudicator’saward to the unpaid party.
The above issues were discussed in the Working Group Meeting held on 31October 2013.
Disagreement
DRA/DRB/Partnering
Dispute
Mechanisms for Dispute
Avoidance Measures
Dispute Resolution
Mechanisms
Overview of Construction Dispute Resolution Mechanisms (Cont’d)
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Independent
Expert Certifier
Post-Completion Arbitration or
Litigation (if no Arbitration Agreement)
Adjudication
Arbitration or
Litigation (if no
Arbitration
Agreement)
Expert
DeterminationMediation
(Interim) (Interim)
Valuation/Payment
related mattersAll matters
(Final)
(Final)(Final)
(Supplemental
contract)
All mattersTechnical matters
All matters
Interim
settlement
before contract
completion
Disagreement
Disagreement
resolved
DRA resolves
disagreement
DRA appointed
One party initiates Dispute Resolution (DR)
DRA’s recommended Agree on one of the
YesYes
NoNo
NoNo
Overview of Construction Dispute Resolution Mechanisms (Cont’d)
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DRA’s recommended
DR method accepted by
both parties
Agree on one of the
DR methods
Mediation Adjudication Independent
Expert
Certifier
Expert
Determination
Short Form
Arbitration
Execute the decision immediately
Enter into
settlement
agreement
Post-Completion Arbitration
Execute the decision immediately
Dispute
resolved
Dispute resolved
A party wants to
challenge the decision
Yes
No
Yes
NoNo
Yes
No
Yes
Adjudication
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Adjudication
What is Adjudication?
A dispute preliminary resolved within a short time by an
adjudicator, usually an expert in technical matters, with his
decision to be bound for an interim period, i.e. until
completion of a construction project or until review in
(See for example the application of adjudication in UK under the
Housing Grants, Construction and Regeneration Act 1996)
decision to be bound for an interim period, i.e. until
completion of a construction project or until review in
arbitration or court proceedings.
What is Adjudication? (Cont’d)
Key features:
• Temporarily binding
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• Adjudicator is a third party neutral
• The adjudicator will produce a decision after receiving evidence and writtenand/or oral submissions from the parties
• The decision is binding in the interim, but it is not final and can bechallenged in post-completion arbitration
• A statutory process in oversees security of payment legislation
Adjudication Procedure
Dispute
resolution
clause
provides
applicable
rules
Notice of
intention to
refer dispute to
adjudication.
Nominate
adjudicator.
Notice often
contains:
Response
addresses
matters set out
in notice,
attaches other
relevant
documents and
Adjudicator
appointed.
Adjudication
commences.
Adjudicator Adjudicator
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Dispute
Parties agree
applicable
rules (no
HKIAC
adjudication
rules)
contains:
- summary of
nature and
background of
dispute;
- relief claimed;
- references to
relevant
documents,
copies
attached.
documents and
agrees
appointment of
adjudicator or
suggests
alternative.
HKIAC can play a
role in
appointment
depending on
what applicable
rules provide, or
parties’
agreement.
Adjudicator
often given
discretion to
decide
procedure.
This may involve
witnesses and
expert evidence
or a hearing, or
may be on a
documents-only
basis.
Adjudicator
makes written
decision.
Binding until
overturned by
an arbitrator
or court.
say
14
days
say
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days
Adjudication: Hong Kong Experience
• Not commonly used in Hong Kong
• Provided for as a mandatory process in the Airport CoreProgramme in 1990s
� four construction disputes were resolved in two
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� four construction disputes were resolved in twoadjudications with no further steps taken to challenge theadjudicator’s decisions
• One other adjudication was conducted in 2009 inanother context
• Dispute Resolution Advisor (DRA) system coupled withvoluntary adjudication� Specified in the civil engineering works contracts of the
Government with contract sum exceeding HK$200 million
Adjudication: Concerns over the Current Application
• Adjudication is too lengthy,time consuming andresource demanding.
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resource demanding.
• The procedures are similarto those of arbitration.
Adjudication: Strengths and Weaknesses
Strengths Weaknesses
Quick resolution for disputes while the project team still
existed and memories still freshThe party who knows the rule of the game will give
threat for adjudication
Economical means to resolve disputes A party may ambush the other party since a party can initiate complicated adjudication at any time of the contract. There is a time limit for the other party
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the contract. There is a time limit for the other party to prepare response
Jurisprudentially much more closely allied to certification by an architect or engineer
It is not sure if different disputes can be consolidated
Good cash flow for the Contractor It is not sure if additional parties, i.e. a subcontractor, can be added to the adjudication
Good budget control for the Employer By limiting the people involved in the adjudication process
and most evidence provided in documentary only (for
practicality and cost savings), the adjudicator may not be
properly informed of all the facts and only rough justice
may be obtained
Adjudication: Strengths and Weaknesses (Cont’d)
Strengths Weaknesses
Avoid undesirable knock-on effects There is a time limit for adjudicator’s decision, so Only rough justice is done
Practical business decisions prevent an adjudicator’s decision be reviewed after practical completion of a construction project
Complex disputes may not be solved in the shorttime frame allowed in most adjudications, but can beExtended by the parties’ agreement
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construction project Extended by the parties’ agreement
Unlike an Award of arbitration, there may be problems in Court enforcement of adjudicators’ decisions
Enforcement of international adjudication decision may Be problematic since adjudication is not covered by any international convention, i.e. New York Convention, or state legislation, i.e. Arbitration Act or Ordinance
New Adjudication Rules in Hong Kong??
The ‘Task Force on Dispute Resolution Documentation’ proposed a set of newAdjudication Rules with key elements as follow:
• Language – To remove ‘English’ as the language required to be morefavourable to smaller-sized contractors / subcontractors
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• Place of Adjudication – no specific place to make it less formal
• Appointment – time take to appoint will need to be trimmed down
• Witness – adjudicator should not be called as a witness in subsequentarbitration or litigation
• Cost Allocation – absolute discretion and express power to determinewhich party pays for the costs
Expert Determination
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Expert Determination
Expert Determination
Key features:
• A binding dispute resolution form
• A third party with expertise in a particular field is askedto give a determination on a disputed issue in that field
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to give a determination on a disputed issue in that field
• Single issue or handful of related issues, not a wholedispute
• Either technical, financial or contractual issues
• Flexible procedures, query if due process required
• Consensual and confidential
• Challenges in limited circumstances
Appointment of Experts
Methods:
• Agreed by the parties
• Appointment by the HKIAC if no agreement can
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• Appointment by the HKIAC if no agreement canbe reached
� HKIAC will establish and maintain a list of expertsin consultation with the HKIA, HKIE and HKIS
Appointment of Experts (Cont’d)
Requirements to become an Expert:• registered professional
• qualified by relevant professional institutes to have attained “fellow”
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• qualified by relevant professional institutes to have attained “fellow”membership status or such qualification as recognized by theinstitutes
• complete a compulsory training course
• fulfill other criteria as determined appropriate by respectiveprofessional institutes
Experts Determination: Strengths and Weaknesses
Strengths Weaknesses
Experts to resolve complicated technical or engineering issues
The determination is not backed by any legislation or international convention
Save costs and time for the adjudicating tribunal to understand the issues of dispute
Expert investigation process may be not be conducted properly and may have no control
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Ensure relevant complicated technical or engineering issues identified, understood and adjudicated correctly by the expert
Unlike arbitration, investigation process is not backed by any legislation, i.e. compelling discovery
Difficult to appeal
Enforcement of determination is by enforcing contractual right which may be subject to set-off and counterclaim
Independent Expert Certifier Review
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Independent Expert Certifier Review
Independent Expert Certifier (IEC) Review
• A new type of ADR• Independent Expert Certifier (IEC)
� an independent third party neutral with experience or expertise relevantto the area of the dispute
� conducts an independent and impartial review of the decision orcertification made by the Architect/Engineer/Surveyor (the Certifier)
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certification made by the Architect/Engineer/Surveyor (the Certifier)� provides a second opinion based on the same documents and
information that were initially provided to the Certifier
• Decision of the IEC� the decision on the dispute is binding in the interim, i.e. during the
currency of the Works� the decision of the IEC is not final and can be challenged by post-
completion arbitration
• Role of IEC� IEC will not replace or alter the Authorised Person’s statutory duties, functions
and power.
Appointment of IEC
Methods:
• Agreed by the parties
• Appointment by the HKIAC in consultation with the HKIA,HKIE and HKIS if no agreement can be reached
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HKIE and HKIS if no agreement can be reached
� HKIAC is recommended to establish and maintain a panelof IECs in consultation with the HKIA, HKIE and HKIS
� this appointment mechanism might be subject to review ofthe HKIA, HKIE and HKIS
Dispute Resolution Advisor (DRA)
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Dispute Resolution Advisor (DRA)
Dispute Resolution Advisor (DRA)
Dispute Resolution Advisor is a neutral third partyjointly appointed by the Employer and Contractor at thebeginning of the project to familiarise the project and
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follow through the project pro-actively to prevent disputeand to assist settlement of disagreement before they getcrystallized to become a dispute. The DRA has no powerto make decision but has his function to be facilitative.
Dispute Resolution Advisor (DRA) (Cont’d)
The role of DRA is to
� foster cooperation between the Contractor and theEmployer and their consultants and sub-contractors
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� minimise the number of claim
� avoid conflicts in the first instance and
� settlement disagreement or disputes as they emerge andbefore the become disputes
DRA: Hong Kong Experience
• The concept of employing DRA to avoid constructiondisputes was practiced by the public sector since 1991� Architectural Services Department:
• used DRA in over 70 building projects since1991
• used Notice of Dispute - the DRA shall within 14 days attempt to
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• used Notice of Dispute - the DRA shall within 14 days attempt toresolve the dispute; a written report should be provided within afurther 3 days if the dispute is not resolved
� Hong Kong Housing Authority: used DRA on all building andfoundation contracts since 2004
� Other Works Departments (DSD, CEDD, HYD, WSD): DRAextended to civil engineering works in 2005
• DRA system was also adopted by Hong Kong Scienceand Technology Parks Cooperation (HKSTP)
DRA: Hong Kong Experience(Cont’d)
The role of DRA in Building Contracts (e.g. of the HKHA) is also stipulated into the dispute resolution clause as a SCC:
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“The role of the DRA is to foster co-operation between the
Employer and the Contractor and amongst Nominated Sub-
contractors …, to minimise the volume of claims, disputes and
disruptions to the Works, and to ensure the cost-effective and
expeditious resolution of those disputes that do arise,…”
DRA: Hong Kong Experience(Cont’d)
• The role of DRA in Civil Engineering Contracts of the HKSAR is stipulated into the dispute resolution clause as an SCC:
“The role of the DRA is to foster co-operation between the
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“The role of the DRA is to foster co-operation between the
Contractor and the Employer and their consultants and sub-
contractors, minimise the number of claims, avoid conflicts in
the first instance and settlement disagreements or disputes as
hey emerge and before they become disputes….”
Use of DRA in Subcontracts??
The ‘Task Force on Dispute Resolution Documentation’ recommendedto consider the use of DRA in Subcontracts.
Factors to be considered:
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Factors to be considered:
• Work Commitment - DRA may easily be overwhelmed by heavycommitments on all meetings with different parties
• Fee Payment - concerns of Employer paying the DRA fees forsubcontracts
• Domestic Subcontracts - dispute resolution for domesticsubcontracts may be more useful and practical then DRA insubcontracts
Admission of DRA
• Current list by Joint Management Committee (JMC) withrepresentatives from HKSAR Government WorksDepartments and HKCA.
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• Whether there is a need for another DRA list for private sectorshould be further discussed.
• A good DRA may not necessarily be an experienced mediatoror arbitrator.
• Experience in project administration and site management aremore critical
Partnering
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Partnering
Partnering
Partnering is defined by Bennett J. and Peace S. as:
‘a set of actions taken by the work teams that form a project team to helpthem cooperate in improving their joint performance’
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The Construction Industry Institute in the United States definedpartnering as:
‘‘a long-term commitment between two or more organizations for the
purposes of achieving specific business objectives by maximizing the
effectiveness of each participant resources. This requires changing
traditional relationships to a shared culture without regard to organization
boundaries. The relationship is based on trust, dedication to common goals,and an understanding of each other’s individual expectations and values’
Partnering (Cont’d)
• Partnering requires cooperativeattitude among the parties that isbuilt on mutual trust and commongoals to achieve excellence
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goals to achieve excellence
• Partnering can take the form ofcontractual or non-contractual
Non-Contractual Partnering
• Non-contractual partnering places emphasis on the process ofbuilding harmonious working relationship between stakeholders.
• The general principles and objectives that are intended to guideand govern the relationship between the parties are set out in the
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and govern the relationship between the parties are set out in thepartnering charter which is not legally binding.
• During the project implementation stage, mutual objectives andperformance improvement are put forward through agreeddecision-making processes reinforced by partnering workshopsconvened by facilitator throughout the project.
Contractual Partnering
• Contractual partnering regulates the parties’ behaviour through a contractual framework which is legally enforceable
• Forms of standard partnering contracts includes� New Engineering Contract (“NEC”)
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� New Engineering Contract (“NEC”)
� Be Collaborative Contract
� PPC 2000
• Happy Valley Underground Stormwater Storage Scheme� Largest NEC contract awarded by the HK Government (HK$678 million)
� Completion expected in early 2018
Partnering in Hong Kong
• Non-Contractual Partnering as a means for dispute avoidance was introduced in Hong Kong since the 1990s
• It is fairly common in Hong Kong public sector whereas private sector generally continues to adopt it on an ad-hoc basis
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sector generally continues to adopt it on an ad-hoc basis
• Projects that adopted non-contractual partnering include � Choi Yuen Shopping Centre Phase 2,
� Central Concourse Expansion at the Hong Kong International Airport
� Route 8 Traffic Control and Surveillance System
� Design and Build of Improvement to Castle Peak Road
Partnering in Hong Kong(Cont’d)
• To date, most partnering relationships seen in Hong Kong havebeen non-contractual, although contractual partnering is gainingmonument
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• MTRCL New Extension Projects will all be delivered usingpartnering whist the government is implementing a series of pilotprojects under the NEC form of contract using a suitable contractualpartnering arrangement.
CIC’s Work on Dispute Resolution
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CIC’s Work on Dispute Resolution and Partnering
CIC’s Work on Dispute Resolution
The Guidelines aim to provide
industry stakeholders, particularly
private sector employers, with
Guidelines on Dispute Resolution (Version 1) September 2010
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private sector employers, with
more information about the use of
dispute avoidance measures and
various dispute resolution methods
for resolving different forms of
disputes in their construction
contracts.
Guidelines on Application of Dispute Resolutions inConstruction Contract (to be published)
To prepare sample contract clauses for implementing the
CIC’s Work on Dispute Resolution(Cont’d)
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To prepare sample contract clauses for implementing thedispute resolution mechanism as recommended in theGuidelines on Dispute Resolution to facilitate the adoptionof the new mechanism in the local construction contracts.
CIC’s Work on Partnering (Cont’d)
The Guidelines are intended as a reference document for employer, consultant and contractor
Guidelines on Partnering (Version 1) August 2010
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consultant and contractor organisations considering the use of partnering on construction projects in Hong Kong. They aim to provide practical advice with guidance on the use of the forms of partnering contracts that are currently available.
CIC Website <www.hkcic.org>
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A Quote
“World Peace, like community peace, does not
require that each man love his neighbor – it
requires only that they live together with mutual
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tolerance, submitting their disputes to a just and
peaceful settlement.”
By John F. Kennedy
A Quote
“Discourage litigation. Persuade your neighbors to
compromise whenever you can. As a peacemaker
the lawyer has a superior opportunity of being a
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good man. There will still be business enough.”
By Abraham Lincoln
Thank you
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Thank you