1999 於、 MESSAGE FROM THE EDITOR By Edgar Li No news is not a good news??! You will agree this statement if you read the announcement of this BS Newsletter. Our BSD is pleased to announce our great events including the coming annual dinner, innovative compact disk produced for BS Conference and the sponsorship for attending overseas conferences. All of these activities are well suited for our members. In addition, the Editorial Board wishes to give our thanks for the continuous supports from our senior members to contribute the invaluable articles relating to facilities management and arbitration. The Editorial Board is calling for editorial contribution from our members in the coming publications. If you wish to submit your article, please contact the editor directly. Editorial Board Alan Sin Terence Lam Gordon Wong Edgar Li Wong Kam Wah (Editor) (Member) (Member) (Member) (Member) ANNOUNCEMENT BS Annual Dinner 99 The Annual Dinner will be held on 30 November 1999 (Tuesday) at Hong Kong Football Club, Happy Valley, Hong Kong. This is no longer a usual dinner. You can take all the gifts by joining our lucky draw and a series of wonderful games. There will also be a presentation of awards to the best APC practical task candidates. Last year, the annual dinner did attract a number of members and costed HK$300 per member. This year, the incredible low price is only HK$180 per member. Come on, don't miss the chance!!! You are very welcomed to join us. Reservation form has been mailed to all members. For inquiries, please contact Mr Edgar Li at phone no: 2839 7606. Sponsorship for Overseas Conference Another good news to our members! Our Building Surveying Division is going to recommend our BS members, to the General Council of HKIS, for sponsorship as our official delegates to attend the relevant conferences held at overseas. It intends to enhance and widen professional knowledge of building surveying as developed in Hong Kong. The Council of the Building Surveying Division will oversee this recommendation process and issue a guideline for conditions of sponsorship later. The following conferences has been under consideration for this purpose: * "WOBO's 5th World Congress" to be held at Dubai on 26-29 March 2000. * "International Conference, Construction Information Technology 2000" to be held at Reykjavik, Iceland on 28 -30 June 2000. * "Habitus 2000" to be held at Perth, Australia on 5 - 9 September 2000. * "International Symposium Providing Facilities Solutions to Business Challenges - Moving Towards Integrated Resources Management" to be held at Brisbane, Australia on 15 -17 November 2000. Inquiries and suggested conferences should be sent to Dr. S M Lo of Department of Building and Construction, City University of Hong Kong, Tat Chee Avenue, Kowloon Tong, Hong Kong, or fax (852) 2788 7612, or e-mail bcsmli@cityu. edu.hk. [T
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1999 於、
MESSAGE FROM THE EDITOR
By Edgar Li
No news is not a good news??! You will agree this statement if
you read the announcem ent o f this BS Newsletter. O ur BSD
is pleased to announce our great events including the coming
an n u a l d inner, innovative com pact disk p ro d u ced for BS
C o n fe ren ce and the sponsorsh ip fo r a t ten d in g overseas
conferences. All o f these activities are well suited for ou r
members. In addition, the Editorial Board wishes to give our
thanks for the continuous supports from our senior members
to c o n tr ib u te the invaluable articles re la tin g to facilities
m anagem ent and arbitration.
The Editorial Board is calling for editorial contribution from
our members in the coming publications. If you wish to submit
your article, please contact the editor directly.
Editorial Board
Alan Sin
Terence Lam
Gordon Wong
Edgar Li
Wong Kam Wah
(Editor)
(Member)
(Member)
(Member)
(Member)
ANNOUNCEMENT
BS Annual Dinner 99
T he A nnual D inner will be held on 30 N ovem ber 1999
(Tuesday) at H ong Kong Football Club, Happy Valley,
H o n g Kong. This is no longer a usual dinner. You can
take all the gifts by jo in ing our lucky draw and a series of
w onderfu l games. T here will also be a presen ta tion of
awards to the best APC practical task candidates. Last year,
the annual dinner did attract a num ber o f members and
costed HK$300 per member. This year, the incredible low
price is only HK$180 per m em ber. Come on, don 't miss
the chance!!! You are very welcomed to jo in us.
Reservation form has been m ailed to all members. For
inquiries, please contact Mr Edgar Li at phone no: 2839 7606.
Sponsorship for Overseas Conference
A nother good news to our members!
O ur Building Surveying Division is going to recom m end
o u r BS mem bers, to the G eneral C ouncil o f HKIS, for
sponsorship as our official delegates to attend the relevant
conferences held at overseas. It in tends to enhance and
w iden professional knowledge o f bu ild ing surveying as
developed in H ong Kong. T he Council o f the Building
Surveying Division will oversee this re com m enda tion
process and issue a guideline for conditions of sponsorship
la ter. T h e fo llow ing c o n fe re n c e s has b e e n u n d e r
consideration for this purpose:
* "WOBO's 5th World Congress" to be held at Dubai on
26 -2 9 March 2000.
* "International Conference, C onstruction Inform ation
Technology 2000" to be held at Reykjavik, Iceland on 28
-30 Ju n e 2000.
* "Habitus 2000" to be held at Perth , Australia on 5 - 9
refer such dispute to arbitration? Let me side-track my 玎ow of
narrative a bit by pointing to all s tudent surveyors that since
30 Ju n e 1997, the decisions o f the House o f Lords have no
longer been binding on the courts of H ong Kong, although
artic le 84 o f the Basic Law perm its the c o u r t to re fe r to
precedents o f o the r com m on law jurisdictions. Thus in the
H ong Kong case Westco A ircondition ing Ltd v Sui C hong
Construction & Engineering Co Ltd (1999), certain dicta of
Lord Mustill in C hannel T unnel G roup Lim ited Balfour
B eaty Construction Ltd (1993) were no t followed It is for this
reason all cases quoted in this aricle are local ones.
In Schindler Lifts (H ong Kong) Ltd v Shui On Construction
Co Ltd (1985), the C ourt o f A ppeal he ld th a t the judge .s
concern that it would be useless to the proceedings because
the matter would come back before the court on a case stated
fo r construction o f the co n trac t was ill-found in th a t the
^ b i t r a t io n O rdlinance (at tha t time) had been am ended to
rem ove the pow er o f an a rb itra to r to state a case fo r the
consideration of the H igh Court.
F o r m any yea rs , w h en ev e r th e re w ere two c o n c u r r e n t
a p p lic a t io n s fo r su m m ary ju d g m e n t (i.e . u n d e r legal
p roceed ings) an d stay o f legal p ro ceed in g s in favour o f
a rb itra tion , the stay w ould only prevail if th e re was a real
dispute, i.e. an arguable issue, Now by virtue o f s,6( l ) o f the
& b i比a乜on Ordinance 1997, article 8 (1) of the Uncitral Model
Law applies:-
_’A court before which an action is brought in a m atter which
is the su切ect of an arb itra tion agreem ent shall.....refer the
parties to arbitration unless it Hnds that the agreem ent is null
and void, inoperative or incapable or being performed."
In fact, before the new O rdinance emerges, there has already
been some court decisions pointing in that movement, albek
n o t precisely. In Pilocon (H ong Kong)Led v Mightyton Ltd
(1992) which held that before a par印 to the legal proceedings
had the right to apply for a stay of the proceedings, the su句ect
m atter of the proceedings had to be in respect of any matter
which the parties had agreed to be referred to arbitration. If
there was no dispute at the com mencem ent of the proceedings,
there was no thing which had been agreed to be referred to
arbitration and the su句ect m atter of the proceedings was not
yet a m atter which the parties had agreed to be raferred to
arbitration. H ence &.6 o f the h b i t r a t io n O rdinance would
no t apply and neither p a ry would be entitled to apply for a
s这y of the proceedings. Only if there was a dispute or di浪 rence
in existence on the date of the issue of the writ. Could a stay be
gran ted u n d e r s.6? In Jo o n g and Shipping Co Ltd & Choi
Chong-sick v Chu Chin-Ho,t , a Chang Ho Co (1994), Mr Jus 乜 ce
Kaplan held that: ( l ) i f there is anything in dispute be^^een
parties who have agreed on arb itra tion , then it is only right
an d p ro p e r th a t they shouid be be ld to th e ir con trac tual
bargain to have the disputes resolved by arbitration and ⑵
on the o ther h an d , if there is no dispute be駿 en the parties,
there is no th ing to go to arbitration and it is appropriate to
g ran t sum m ary judgm ent. This can only be the approach if
there is a clear admission as to liabili印 and quantum .…though
both of these decisions swayed towards disputes be resolved by
a rb itra ion , they d id n o t a t tem p t to define precisely w hat
constitutes a "dispute”.
T h e post-1997 th re sh o ld is se t by th e new A rb itra t io n
O rdinance 1997 which adopts the U N C I T ^ ^ MODEL
artic le 8 , w hich has b een in c o rp o ra te d in to m ost o f the
international arbitration agreem ent for ),ears, into all domestic
a rb i tra tio n a g reem o n t. In L ouis D reyfus T rad in g L td
Bonarich International (Group) Ltd (1999) Mrjustiqe Waung
held that the proper approach for the court when faced with
parallel applications of sum m aryjudgm ent and arbitration stay
was to apply the test laid down by the Gourt of Appeal in Tai
Hing Cotton Mill Ltd v Gleneore Grain Rotterdam BV (1996)
in which Bokhary JA said:
"Under 如 8(1) o f the Model Law, the court is no t concerned
with investigating whether the defendant has an arguable basis
fo r disputing the claim. If a claim is m ade against him in a
m atter which is the su句ect o f an arbitration agreem ent and
he does not admit the claim, then there is a dispute wkhin the
meaning of the article, h d if he seeks a stay of the action the
court must grant a stay unless the plaintiff can show that the
arbi江adon agreement is null and void, inoperadve or incapable
o f being perform ed.”
Taking the literal interpretation, this stretches the meaning of
the word "dispute”to ano ther limit which simply means tha t
whenever a par印 to a domestic arbitration agreem ent denies
a claim, it will constitute a d ispute , At the election of e ither
party, tha t dispute m ust be re ferred to arbitration and I am
a fra id th a t th e ju d g e s d o n o t have an y leeway. I f th e p a r印 has
no merits in his case,he is bound to lose in the arbitration and
he will be ordered to pay the costs.
In the prem ises, the previous th reshe ld of real d ispute or
arguable case for domestic arbitration agreem ent no longer
holds. The new threshold k simply a claim the ambit of
an arbitration agreem ant and one p a rg does no t adm it it. In
my case, this 丘ne legal coneept was no t particularly addressed
to by the judge because my client (Main Contractor) had an
arguable case a n ^ ay . However, I am conHdent that there will
bound to be a domestic test case in the near h tu r e to engrave
such precepts on stones.
a Update
A BRIEF SUMMARY TO PRACTICE NOTES AND CIRCULAR LETTERS ISSUED FROM 15 JUNE 1999 TO 15 OCTOBER 1999
Wong Kam Wah
PRACTICE NOTE FOR AP AND RSE ISSUED BY BUILDINGS DEPARTMENT
79 Computer Programs for Use in Structural and Geotechnical Design
This revision June 1999
A set o f new s tandard p ro fo rm a is a ttached in the
A ppendix of the Practice Notes including:
a) P ro fo rm a for application for p rio r-accep tance /
ren ew al o f s t r u c tu ra l / geo tech n ica l c o m p u te r
program;
b) Structural C om puter Program Statement;
c) Geotechnical C om puter Program Statement.
T h is revision also states th a t the renew al o f p r io r
acceptance and changes to pre-accepted programs may
be m ade upon expiry, bu t no t earlier than four months
from the expiry date.
211 Planning and Design o f Drainage Works
This revision June 1999
T h e firs t issue o f th is p rac tice no te s sets o u t the
requirem ents regarding the planning and design of the
alignm ent of com m on drains for new buildings. This
revision advises APs to take into consideration the need
for maintenance and repair when designing other drains
a n d p lu m b in g system s in a d d i t io n to c o m m o n
underg round drains.
227 Striictures On Grade on Newly Reclaimed Land
First Issue April 1999
Guidelines are given for processing submission involving
structure on grade on newly reclaimed land, including
design rules, settlement assessment and monitoring. It
w o u ld ta k e im m e d ia te e f f e c t fo r th e b u i ld in g
developments for which the application o f consent for
the foundation works has been subm itted after 15 May
1999.
APs shou ld also a le r t the deve loper the long-term
consequential maintenance implications and advise him
to inform the prospective buyers ..
234 Geotechnical Manual for Slopes Guidance on Interpretation and Updating
First Issue June 1999
Guidance is given in the Appendix of the practice notes
on the interpretation of some aspects of the Geotechnical
Manual for Slopes (2nd Edition).
T he te rm "risk" is rep laced by "consequences" for
consis tency w ith in te rn a t io n a l usage . A new an d
combined notation for safety factor of slopes in terms of
"consequences-to-life" and "economic consequences" is
also described in this Appendix.
237 Corruption Prevention
First Issue July 1999
This Practice Note draws the attention of APs and RSEs'
the n eed to com bat co rru p tio n in the construction
industry. APs and RSEs are also rem inded to report to
ICAC immediately when they or their staffs are offered
a bribe.
Editorial Contributions_________________________________________________________"B u ild in g Surveyors" encourages a rtic le queries and subm ission. A rtic le subm issions should inc lud e both hard (p rin ted) copy and
a d iskette in w o rd form at. C ontribu to rs should con tact the ed itor, Mr. A lan Sin at Tel. 2773 2607 or Fax. 2765 7153
The o ffice o f The Hong Kong Institu te o f Surveyors