Biography

Bernard is a construction lawyer specialising in large infrastructure projects. He has over 30 years post qualification experience in construction, having previously worked in Singapore and Australia, before moving to HK in 1998. He is qualified in Hong Kong, Singapore and in England and Wales.

Within the wider construction practice at Pinsent Masons Hong Kong, Bernard leads a team of specialist transactional lawyers who advises clients in the region throughout all stages of a construction project, with a particular focus on initial procurement advice/structuring, contract and tender preparation and negotiation. He has a significant track record in continuing to advise clients, post contract, on project risks mitigation strategies, claims management and dispute avoidance, helping clients achieving completion to targets.

Bernard is recognised as a leading Hong Kong construction lawyer in Who's Who Legal since 2015.

Abstract

Good Faith in NEC4 – to what extent is it enforceable?

Bernard will discuss the impact of ECC 10 on the rights and remedies available to the parties. The extent of the duty to act in mutual trust and cooperation (essentially a duty of good faith) will be examined specifically in relation to interpretation of other clauses (and whether clause 10 should be regarded as having paramount effect), and the extent to which it constrains the exercise of other rights. He will also briefly discuss whether the good faith obligation translates into a more generic duty to warn, and whether good faith is adequate to support a claim for damages.

Biography

Mr. John Battersby, FCInstCES, FGIS, FASI, FCIOB, FHKICM, MRICS, MHKIS, FCMI, FCIArb, FHKIArb, MAE, RPS(QS) is Group Managing Director of BKAsiaPacific Limited and a Registered Professional Quantity Surveyor (Hong Kong) and Chartered Construction Manager having worked in the construction industry for 57 years, 41 years of which have been spent working on projects in Hong Kong, China and South East Asia.

John has acted as an expert witness several times, both in arbitration and litigation, in respect of additional cost/loss and expense/damages claims, measurement issues, adjustment of rates, valuation of variations and causes and effects of delays to construction works. He has acted both as party appointed expert and “single joint expert” (or “tribunal expert”). He is a Practising Member of the Academy of Experts and accredited by the Academy as an Expert. He has also been appointed as Arbitrator, Assessor, Adjudicator, Mediator and Dispute Resolution Advisor several times.

John has delivered many NEC training seminars in Hong Kong and has also conducted collaborative contracting workshops for Hong Kong’s Mass Transit Railway Corporation’s Target Cost Contracts. He is a keen advocate of NEC and in sharing his insight and knowledge on how NEC can overcome many of the problems which arise from traditional contracting through collaborative working relationships, proper contract administration and sound project management, emphasizing prospective versus retrospective resolution of problems.

Abstract

Building Trust and Co-operation

When I came to Hong Kong over 40 years ago, I was a claims expert, having been involved in claims on big motorways in UK. 

I have been involved in some of the biggest disputes in Hong Kong, employed by Government, Contractors, Subcontractors, Employers and Consultants as well as in a neutral capacity.  I have learnt what a huge waste, in terms of cost and manpower, that is to our industry.

From a claimsman, I have become NEC’s biggest supporter.

NEC to me means best practice in planning and programming, risk management, contract administration and, yes, prompt payment of claims/compensation to contractors through the compensation event procedure.  Mutual trust and co-operation is written into the contract and is necessary to make it all work.

The use of NEC in UK was influenced by the Latham and Egan Reports, in 1994 and 1998 respectively, which highlighted the huge waste in the industry caused by disputes.  Our own Tang Report in 2001, which highlighted the same problems in Hong Kong, led to Government’s adoption of NEC.

The Client’s choice of NEC4 ECC means that it believes that mutual trust and co-operation between its Project Manager, Supervisor,and their delegates, and the Contractor is fundamental to the successful delivery of the project.

The application of trust starts with the Client’s preparation of tender documents.  The extent to which the Client really believes in the NEC approach is reflected in the extent to which it amends the NEC4 ECC provisions.  Amendments should be minimized.

NEC forms the basis of successful project delivery but does not work by itself.  It has to be made to work by all those involved.

Biography

Ir Edmond Cheng is a Fellow Member of the various professional institutions including HKIE, HKIArb, HKIHT, and HKIoD with over 40 years’ experience in the management, construction and contract administration for mega infrastructures projects in Hong Kong and overseas. For the past two decades, he was the Project Director for the design and construction of signature public works projects including the Hong Kong-Zhuhai-Macao Bridge, Hong Kong Cross Boundary Facilities and Hong Kong Link Road.
 
On top of his engineering engagements, Ir Cheng obtained MBA in 2002, LL.B in 2006 and MAArbDR in 2012. He is an accredited mediator and arbitrator on various panels of professional bodies. He has great experience in acting as a mediator to settle disputes and in participating in arbitrations.
 
Ir Cheng is the Executive Director of China Harbour Engineering Company Limited and the General Manager of the Commercial Department in the Company. He has been handling many NEC projects and was a guest speaker in Tsinghus University in 2020 on NEC training. He is also the Council Member and Vice-Chairman of Civil Engineering Committee of Hong Kong Construction Association (HKCA). In addition, he was appointed as the leader of NEC Task Force Group in HKCA.

Abstract

Tracking the steps of building up collaboration with the Client

Following the successful completion of the first NEC pilot project on Fuk Man Road in 2012, the client - the Hong Kong Development Bureau (DEVB) - began implementing numerous small-scale NEC pilot projects across various Public Works Departments. In 2015, after gaining more experience with NEC adoption, the client initiated the implementation of an increased number of NEC projects with larger contract sums. To align with the client's strategy for the broader adoption of NEC projects, the Hong Kong Construction Association (HKCA) established regular meetings with DEVB. The goal of these meetings was to voice out some of the NEC-related issues and concerns collected from HKCA members.

From 2012 to 2023, HKCA highlighted many issues and concerns related to the execution of NEC contracts:

1. Enhancement of interim payments procedures to avoid negative cash flow;
2. Approval limit of Compensation Events with a maximum sum of $300k by project managers;
3. Standardisation of the Z-clause and limiting additional z-clauses by Works Departments;
4. Addressing the sceptical attitudes of project staff;
5. Pre-bid agreements with subcontractors or early engagement of subcontractors during the tender stage;
6. Provision of “reference quantity not forming part of the contract” for NEC option C tender;
7. Streamlining approval procurement procedures for Subcontracting (C9) and for suppliers (C11);
8. Scheduled payment for preliminary, plant and materials and sub-contracts;
9. Removal of the percentage limit on cap fee;
10. Compensation events for inclement weather, including “Hot Weather”;
11. Lack of incentives for contractors to promote cost-saving design;
12. Impact of Statutory Minimum Wages and Waste Disposal Levy;
13. Contract Performance Report (CPR) enhancements for NEC Project;
14. Implementation of Security of Payment Provision in Public Works Contract; and so on.

In 2023, HKCA carried out the “Survey on NEC Project Administration Effectiveness for Public Works” with HKCA’s members and reported the findings to DEVB for consideration. In January 2024, HKCA conducted a follow-up Survey to review the findings once again and will report them to DEVB soon.

Overall, HKCA and DEVB had frank and open discussions over time. Both parties have collaborated to resolve some of the listed issues and/or concerns. HKCA is confident that 'The Power of Industry-Wise Collaboration for NEC' will benefit all parties involved and foster a change in the management culture of the construction industry.

Biography

Robert specialises in NEC contracts, both setting these up and successfully managing them. He has 41 years’ experience in contract management and carries out training and consultancy around the world. Robert is based in Hong Kong and works as a Senior NEC Consultant for Thomas Telford Limited.

He is an examiner for the Institution of Civil Engineers Certificate in Law and Contract Management course and has also held the position of NEC Users’ Group Secretary from 2006 to date. Robert was an NEC4 Contract Drafter, part of the NEC3 contracts working group and an Accredited NEC4 ECC Project Manager.

Robert is also an Accredited Mediator through the London School of Mediation, registered through the UK Civil Mediation Council and is a member on mediation panels in UK, Hong Kong and New Zealand. He is currently studying an online Master in Laws (LL.M.) degree programme in Mediation and International Commercial Dispute Resolution at Newcastle University, UK.

Robert’s publications include NEC3 and NEC4 Compared (2017), NEC2 and NEC3 Compared (2005), joint author in NEC4 Avoiding and Resolving Disputes (2019), NEC4 Practical Solutions (2017) and NEC3 Practical Solutions (2015).

He can be contacted on robert.gerrard@neccontract.com or by WhatsApp +852 6583 5864.

Biography

Shy is a partner at the London office of Bryan Cave Leighton Paisner, an international law firm. His practice covers advising on construction and engineering projects in the UK and abroad and he has been involved in a large number of NEC based projects, where he has provided ongoing project support on contractual and legal issues and delivered training workshops, as well as acting in dispute resolution proceedings, including conflict avoidance panels. Shy regularly writes and lectures on NEC related issues and since 2020 has been a member of the NEC Contract Board.  Shy is recognised for his expertise in Who’s Who Legal: Construction where he is listed as a Global Thought Leader, as well as being recognised in Legal 500 and Chambers & Partners.  He is a Fellow of the Chartered Institute of Arbitrators, a Fellow of the Institution of Civil Engineering Surveyors and a Visiting Fellow at the Construction Law MSc course at King's College London.  

Abstract

Using the NEC contract to achieve genuine collaboration

The talk will look at the practical aspects of using the NEC contract to achieve genuine collaboration, following the publication of the NEC4 Hong Kong Edition. This will cover the need to understand how risk sharing operates in the context of NEC and a target cost contract,  the practical challenges that arise out of operating the early warning mechanism, what is needed to get the full benefits of the accepted programme and the importance of contemporaneous and prospective assessment. In addition, the role of the supply chain will be considered as well as what steps can be taken to ensure both the employer and the contractor can achieve the change of mindset that is required for using the NEC form of contract.

The growing trend for collaborative contracting and the use of the NEC form of contract reflects a growing recognition that traditional forms of procurement give rise to an adversarial environment that goes against efficient project delivery. This is especially the case in the UK where the government requires the construction sector to take a more collaborative approach in order to improve the delivery of complex infrastructure projects. Similarly, the Hong Kong NEC edition was published last year and will increasingly start coming into use. At the same time, it is accepted that the move to collaboration requires a change in mind set and a different approach to procurement that focuses less on cost but takes into account wider considerations such as innovation and whole life performance. This will require both employer and contractor to invest in ensuring their staff understand what is required under the NEC and have the necessary skills. There are steps that can be taken to ensure that happens, including sufficient training but also ongoing support and dispute avoidance throughout the life of the project.

Biography

Rudi Klein is a barrister with his own legal practice He is currently semi-retired after having been CEO of the Specialist Engineering Contractors’ Group for over 30 years. SEC Group represented the largest value sector in UK construction. He has received a number of lifetime achievement awards including an award from the Society of Construction Law for his contribution to the development of construction law. He has taught construction law at UK universities.

For over 17 years Rudi was chairman and then president of the NEC USERS’ GROUP. He stepped down as President at the end of December 2023. He has promoted the use of NEC throughout UK construction and has been a frequent speaker on NEC at construction conferences. He was instrumental in the development of the project bank account secondary option for NEC [Y(UK)].

Biography

Mr Tim Leung, CEng CSci FICE FIMMM FHKIE PRE(Civil) NEC4 ECC Accredited Project Manager, is an experienced professional in infrastructure development in Hong Kong with over 30 years’ experience. He has specialized in tunnelling and other underground works during his early time with an engineering consultant. Mr Leung served as a Director, General Manager and Head of Civil at a prominent main contractor, lately advancing to the role of Executive Director. Currently, he serves as the Director of Business Development at China State Construction Engineering (Hong Kong) Limited. He plays a leading role in strategic planning, tendering and project management in civil construction. His passion for delivering superior project execution, accelerating engagement and driving organizational change through scaled innovation and collaboration.

Mr Leung, in his capacity as the Director of NEC ECC contracts, has effectively overseen several remarkable projects. These include the Central Kowloon Route at Kai Tak East, Fanling Bypass Eastern Section, Anderson Grey Water Treatment Plant, Yuen Long Effluent Polishing Plant and Lok Ma Chau Loop Contracts. His management of these NEC ECC projects led to notable accolades, such as being awarded the NEC Transport Contract of the Year, NEC Sustainability Award of the Year, NEC Water Contract of the Year and NEC Contractor of the Year in the NEC Martin Barnes Awards 2023.

Throughout his work, Mr Leung has consistently implemented collaborative and cooperative working procedures; and excels in building strong and trusting relationships with various stakeholders, both external and internal.

In recent years, Mr Leung has demonstrated his organizational skills by successfully planning and executing several conferences and events that promote the application of the NEC spirit. Notably, he served as the Co-Chairman of the organizing committee for the prestigious conference “Innovation and Technology: Building a Smart and Livable City” jointly organized by HKIE CVD and CEDD.

Furthermore, Mr Leung actively supports the construction and engineering industries, as well as the academic community. Since 2021, he has held the position of Vice-Chairman of the Civil Engineering Committee at The Hong Kong Construction Association (HKCA) and a member of the NEC Task Force Group in HKCA. He has been serving the Civil Division at The Hong Kong Institution of Engineers (HKIE CVD) since 2019. Additionally, he takes pride in his role as an Advisor to The Hong Kong University Engineering Alumni Association also since 2019. Mr. Leung has published multiple papers in various international conferences.

Biography

Dr.Li is a highly qualified and experienced professional with over 20 years of practice in public hospitals. With a Ph.D. in Clinical Psychology and a Juris Doctor degree, she possesses expertise in both human behavior and legal principles. As the Founder of YHL Consulting Limited, she specializes in promoting health and safety in the construction sector, serving notable clients such as MTR Corporation, Airport Authority Hong Kong, Environmental Protection Department of HKSAR Government through the following contractors : Penta-Ocean Construction Co., Ltd., China State Construction Engineering (Hong Kong) Limited, and Hong Kong Resources Recovery Park. Dr.Li's award-winning work in Safety Collaborative Culture showcases her deep understanding of individuals' needs and challenges. Beyond her consultancy work, she actively supports non-governmental organizations and established the Shui Yun Charitable Foundation to help those suffering from Mood Disorders. Recognized as a Chartered Scientist and Co-Founder of the Hong Kong Blockchain Society, she embraces cutting-edge technologies. Dr.Li's multifaceted qualifications and dedication make her a sought-after expert in enhancing safety, productivity, leadership coaching and organizational well-being through the integration of psychology and scientific principles. Her compassionate approach continues to inspire and empower individuals, leaving a lasting impact on their lives.

Abstract

Fostering a Collaborative Culture: The Power of Positive Psychology and Trust

Collaboration has always been a necessity for organizations, but in today's era of hyper-specialization, it has become even more essential. It's important to remember that collaboration is fundamentally interpersonal and starts with people. Individuals exhibit diverse behaviors across various situations, and different individuals may respond differently in the same situation. Research has even shown that having a higher proportion of experts within a team can sometimes lead to unproductive conflicts or stagnation. Understanding these dynamics is crucial for comprehending collaborative culture.

Positive psychology and trust play vital roles in fostering collaboration within organizations. Positive psychology, characterized by a "No Blame" culture, creates an environment of psychological safety where individuals can freely express their ideas and address issues without fear of negative consequences. Trust, on the other hand, involves aligning values, promoting transparency, and facilitating effective communication among team members.

By recognizing the significance of positive psychology and trust, organizations can establish a strong foundation for effective collaboration, leading to the achievement of shared goals. Embracing these principles creates an environment where individuals can thrive and contribute to the collective success and growth of all involved.

Biography

Mr. Vincent Li is a practicing barrister, and a registered professional civil engineer in Hong Kong. He is also a U.K. Chartered Engineer, and a NEC4 ECC Accredited Project Manager. His name is included in the lists of mediators, adjudicators,  and arbitrators of various local and international institutions. He is also included in the Hong Kong Government’s approved list of Dispute Resolution Advisors.

Before stepping into the legal arena,  Mr. Li has been working in the construction and commercial fields for more than 25 years, In Hong Kong, he had been involved in various civil and building construction projects in both the private and public sector. In mainland China, he had participated in a number of infrastructure investment projects including residential development in Tianjin, concrete batching plant in Chongqing, and deep-water port project in Jiangsu province. In addition to technical and commercial matters, Mr. Li was also responsible for handling the contractual and legal issues arising from these projects, including resolution of disputes by means of mediation, arbitration and litigation.

Mr. Li is now practicing as a barrister involving as legal counsel in various arbitrations, as well as civil and commercial litigation cases. He also acts as the arbitrator, mediator, dispute resolution advisor, and NEC Advisor/Specialist in various cases and projects involving commercial and construction matters.

Mr. Li is one of the co-authors of the book Arbitration in Hong Kong: A Practical Guide (2nd Edition) published by Sweet & Maxwell in 2011; and the book Construction Contract Essentials in Hong Kong published by the HKU Press in 2017. He has also been serving as a part-time lecturer and visiting lecturer at the University of Hong Kong and the Hong Kong Polytechnic University teaching subjects relating to construction law and dispute resolution.

Biography

Managing Director, astute Executive Manager and Professional Engineer with more than 30 years in a range of managerial positions in the Engineering and Construction Industry in Europe, Africa, and the US, including 2 years of industrial and manufacturing experience with Volkswagen and SKF in Europe. Mile has well-rounded competences in all phases of business development and FEED to EPC(M) project implementation, from small to multibillion Rand projects, across several markets (Oil & Gas, Power, Mining, Infrastructure and Industrial). Throughout his career Mile has successfully carried out executive and hands on responsibilities for engineering, project management, construction, business growth, performance, and profit, with expertise in contract management and dispute avoidance and resolution (FIDIC and NEC), while maintaining high standards for safety, quality, and client satisfaction. The current business focus is on collaborative working relationships that enable strategy execution through appropriate working culture, people, and performance. His work style is energetic, positive, engaging, supportive and client centric.

Mile is a formal NEC tutor as accredited by the NEC UK and registered as a NEC Professional Project Manager for both NEC3 and NEC4.

Abstract

Clause 10 and the Project Manager

Mile will explain the key obligations that Clause 10 is assigning to the Project Manager . Clause 10 in the NEC4 suite of contracts embodies the core principle for all to “act as stated in this contract” and support mutual trust and co-operation between the Parties and role players involved in a project. The Project Manager’s overall rights and obligations are embedded in different clauses throughout the contract. While working as per the contract, the Project Manager must ensure that collaboration is pivotal in fostering a positive working relationship, aimed at avoiding disputes and ensuring the successful delivery of a project. Mile will further explain how the Project Manager could effectively manage a project using the philosophy of ECS’ Collaborative Project Strategies and what is expected from the Client to ensure its objectives are achieved.