construction & engineering in asia - mayer brown€¦ · and epc contracts • drafting ... •...

Construction & Engineering in Asia

In-House Community Firm of the Year for Hong Kong: Real Estate/Construction - Asian MENA Counsel (2013)

Construction Law firm of the Year – Asian Legal Business Awards (2012)

We handle both contentious and non-contentious construction matters and provide advice on the full spectrum of issues which can arise during the planning, design and construction of a project.

mayer brown jsm 1

Construction & Engineering in AsiaMayer Brown JSM is one of the leading firms for contentious and non-contentious construction work in the Asian market. We advise on all aspects of building, civil engineering, equipment supply and infrastructure contracts in Hong Kong, Mainland China and South-East Asia.

We have extensive experience advising the construction industry, representing all types of clients including:

• Developers and Project Sponsors

• Governments and other public institutions

• Utility and transport undertakings

• Consultants

• Contractors

• Insurers

• Banks

What do we do?We deal with both contentious and non-contentious construction matters and provide advice on the full spectrum of issues which can arise during the planning, design and construction of a project.

Our range of services includes:

• Town planning and building appeals and related judical review

• Environmental issues

• Drafting consultancy and project management agreements

• Drafting building, civil engineering and EPC contracts

• Drafting invitation to tender documentation

• Drafting equipment supply contracts

• Drafting operation and maintenance contracts

• Drafting development and entrustment agreements

• Advising on professional indemnity and other construction related insurances

• Litigation, arbitration and dispute resolution

Who are we?Mayer Brown JSM’s Construction & Engineering practice comprises experienced lawyers spanning eight offices in five Asian jurisdictions in Hong Kong, China, Singapore, Thailand and Vietnam. The partners in our team have, between them, over 120 years of experience practising in Hong Kong, China and South-East Asia. We are committed to excellent service delivery and our multilingual team believes in establishing and maintaining close working relationships with each of our clients and in taking time to understand their businesses objectives. At Mayer Brown JSM, we believe that our service is second to none: we work with clients to deliver pragmatic and commercial legal advice efficiently and cost effectively.

Contract Formation and DraftingOur Construction & Engineering team provides advice to many leading developers and project sponsors, Government and public institutions, contractors and consultants on procurement methods and contracting strategies to be employed for projects throughout Hong Kong, China and

“Hong Kong Group is praised as an ‘excellent team, with depth in all areas of construction’.”

- Asia Pacific Legal 500 (2013)

“This firm’s integrated construction and engineering practice handles town planning, environmental and contentious and non-contentious construction matters... The dedicated team of highly experienced practitioners provides clients with advice ranging from front-end risk analysis to risk management and dispute resolution.”

- Chambers Asia Pacific (2012)

2 Construction & Engineering in Asia

South-East Asia, including the use of traditional design and construction contracts, EPC contracts, design/build and turnkey contracts, Target Price/ Guaranteed Maximum Price contracts, and the engagement of nominated subcontractors and trade and equipment supply contractors.

We also undertake the drafting of design contracts and the terms of engagement of professional consultants in other construction related disciplines including architects, consulting engineers, quantity surveyors and project managers. General Conditions and Special Conditions of Contract are also drafted for civil engineering, building and equipment supply contracts, together with ancillary documentation including performance bonds, guarantees, undertakings, collateral warranties. pricing documentation and conditions of tendering. We also review and comment upon associated documentation included in construction contracts including General Specifications, Technical Specifications, Bills of Quantity and Owner Controlled Insurance Policies for Third Party Liability and Contractor’s All Risks Insurance.

Project DocumentationOur Construction & Engineering team also assists our Project Finance team in the drafting and review of Engineering, Procurement and Construction (EPC) contracts for projects throughout South East Asia. Examples of projects where advice has been provided to project sponsors include power projects in Indonesia, Vietnam, Laos, Thailand, China, India, Pakistan and the Philippines. We also acted on China’s first limited recourse financing of a wind farm project. Advice is provided on a wide range of Project Agreements including concession agreements, Power Purchase Agreements, take-off a

greements, fuel supply agreements and operation and maintenance contracts.

SOME OF OUR IMPORTANT NON-CONTENTIOUS TR ANSACTIONS INCLUDE:

• Acting for West Kowloon Cultural District Authority in drafting standard form consultancy contracts, reviewing design competition and tender documents and preparing standard form construction contracts and associated project documents for this landmark cultural project in Hong Kong.

• Acting for the Hong Kong Jockey Club in its agreement with the Drainage Services Department of the HKSAR Government in respect of the design and construction of the Happy Valley Underground Storm Water Storage Scheme.

• Acted for Kowloon-Canton Railway Corporation (KCRC) (now part of MTR Corporation Limited) in the planning, financing, design and construction of the West Rail Project.

• Acting for Cathay Pacific Airways on the construction of their cargo terminal at Hong Kong International Airport.

• Acted for Kowloon-Canton Railway Corporation (KCRC) (now part of MTR Corporation Limited) in relation to the East Rail Tsim Sha Tsui Extension Project.

• Acted for the Hong Kong SAR Government in the negotiation and finalisation of the Cyberport Project Agreement.

• Acted for MTRC on WTO tendering issues on the MTRC Guangzhou - Shenzhen - Hong Kong Express Rail Link.

• Acting for the Hong Kong Jockey Club Charities Trust on the Central Police Station Revitalisation Project.

Tier 1 Construction & Real Estate

– Asialaw Profiles (2012)

“It advises on the full spectrum of construction matters, both contentious and non-contentious. The firm handles projects from the initial to final stages, from risk management to contract drafting, and also handles any disputes that arise.”

– Chambers Asia Pacific (2013)

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• Advised an EPC contractor on the construction of a captive power plant and the restoration of a cement plant in Indonesia.

• Advised the sponsors of an integrated coal mine, rail and port development in Indonesia including drafting EPC contracts and the rolling stock supply contract.

• Advised the developers on the EPC contract for a 2,000 M.W. power station in Vietnam and negotiated construction related documentation including fuel supply agreements and the Power Purchase Agreement.

• Acted for the Hong Kong SAR Government and The Airport Authority Hong Kong as majority shareholders in the Asia-World Expo joint venture project, for an international exhibition centre.

• Acted for the Hong Kong Trade Development Council (HKTDC) in respect of contracts for the Atrium Link Extension to the Hong Kong Convention and Exhibition Centre.

• Acting for Wynn Resorts Macau in respect of their Cotai Resort Project in preparing project documentation.

• Advised Swire Properties Limited on the preparation of construction documentation for Swire Taikoo Hui Guangzhou, a 406,000 sq.m. multi-purpose development in China.

• Advised on procurement methods for tunnel works linking Guangzhou Subway Line No.1 in China.

• Advised a U.S. energy company on its investment in a wind farm project in Inner Mongolia and drafted EPC contracts.

• Advised Hang Lung Properties Limited on the preparation of various project management and consultancy agreements for use

in Tianjin Hang Lung Plaza, a landmark mega shopping mall project in Tianjin, China.

• Advised a major Hong Kong banking institution in relation to the construction of its headquarters building in Shanghai.

• Represented the main contractor of the New Bangkok International Airport on the construction of the Passenger Terminal Complex.

• Acted for a Japanese contractor in preparing a number of contract documents with its joint venture partner for the Bangkok Underground Project.

• Advised a consortium in connection with its bid to the Port Authority of Thailand for the construction and operation of a container and passenger terminal and related infrastructure.

• Assisted GS Engineering & Construction, a Korean company, to receive the first Investment certificate granted under the Build-Transfer structure, a special form of investment under the BOT regulations of Vietnam for a 13.64 kilometre outer ring road including four bridges.

• Acting for a leading Vietnamese developer in relation to the drafting and negotiation of a design and build contract for the construction of a landmark mixed use development in Ho Chi Minh City.

Band 1 Projects and Energy: Vietnam


“A team of highly respected litigators– everyone knows them.”

- Chambers Asia Pacific– Hong Kong (2013)


Litigation and ArbitrationWhere disputes arise in the implementation of building and civil engineering projects, our construction team is able to advise on the various mechanisms which are available to resolve disputes, and, if it becomes necessary, to act in the commencement or defence of litigation in court and in arbitration proceedings.

Our team advises on the interpretation of contract documents, on disputes which arise during the course of the works and the negotiation and settlement of valuation, measurement, extension of time, loss and expense and programme related claims.

We regularly advise on the termination of consultancy and construction contracts, the insolvency of contractors and the enforcement of security and we also advise on building defects, design liabilities and professional indemnity issues in respect of the liability of professional consultants.

Dispute resolution work is undertaken for a wide range of clients in Hong Kong, China, Singapore, Thailand and Vietnam, where we have offices.

Alternative Dispute ResolutionWe recognise that not all commercial disputes are best or most cost effectively resolved through court-based litigation.

Alternative dispute resolution often has significant advantages to clients in terms of cost, confidentiality, timeliness and efficiency.

Our team works with clients to first assess whether a particular dispute is suitable for arbitration, mediation or alternative dispute resolution procedures.

Professional Arbitrators and MediatorsWe offer clients flexibility and a wide range of choices for resolving disputes.

Many of our lawyers are members, or on the panels, of various associations and arbitration centres, including:

• British Columbia International Commercial Arbitration Centre

• Chartered Institute of Arbitrators (Hong Kong, Thai and UK branches)

• China International Economic & Trade Arbitration Commission (CIETAC)

• Hong Kong Institute of Arbitrators

• Hong Kong International Arbitration Centre

• Hong Kong Mediation Centre

• Hong Kong Law Society Mediation Panel

• Hong Kong Mediation Council

• Singapore International Arbitration Centre

• Singapore Institute of Arbitrators

SOME OF OUR IMPORTANT CONTENTIOUS TR ANSACTIONS INCLUDE:

• Acting for the Civil Engineering Development Department of the HKSAR Government in a number of large engineering infrastructure arbitrations.

• Hong Kong Housing Authority:

» Successfully defended the Housing Authority in a claim by a contractor in respect of a housing project in Hong Kong.

» Acted in an action for damages against B+B Construction arising out of the short piling at 6 blocks of flats at Tin Shui Wai.

» Reached a settlement through mediation with a consortium of insurers based in Germany, resulting in payment of a large sum in damages.

• Advising Hong Kong Construction Limited in legal proceedings on the Tolo Harbour Highway widening works.

Tier 1 Dispute Resolution in Hong Kong

- Asia Pacific Legal 500 (2008-2012)

“The ‘excellent’ Mayer Brown JSM is one of the pre-eminent firms when it comes to headline Hong Kong court battles.”


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• Advising leading Hong Kong charitable organisations on:

» Issues arising out of its China reforestation project.

» Disputes arising out of the valuation of construction works and on related CIETAC arbitration proceedings.

• Successfully defended a claim by a contractor against Kowloon-Canton Railway Corporation on the Tsimshatsui Extension Project in a “paper only” arbitration.

• Acting for the Construction Producers’ Association of Hong Kong Limited and Hong Kong Concrete Materials Association Limited on defamation proceedings which are the first of its kind in the Hong Kong construction context.

• Represented a large Korean contracting company on a USD 60 million arbitration relating to claims under an EPC contract for a combined cycle power station project in the Middle East.

• Advised a PRC public authority in relation to claims of RMB 7 billion arising from the construction of a hydroelectric dam and power plant in the PRC.

• Advising a major Hong Kong developer on numerous contractors’ claims arising out of its landmark multi-purpose development in Guangzhou.

• Advised a UK based developer on contractor’s claims arising out of an hotel resort development in Sanya and advised on issues arising out of a CIETAC arbtitration brought by the contractor.

• Advised a Hong Kong based contractor in relation to claims arising out of the Qingdao Tongsan Highways Construction Project and the TongjiangSanya National Highway Project.

• Acting for an international consortium of North West Water International Limited, Omnium

de Traitements et de Valorisation, Siam-Syntech Construction Public Company Limited and SinoThai Engineering and Construction Company Limited (NOSS Consortium) in arbitration proceedings against a Thai Government Agency in respect of the design and construction of a waste water treatment plant and network in Bangkok.

• Acted for NOSS Consortium in an arbitration and subsequent mediation of disputes with Euro Iseki, a microtunnelling subcontractor, leading to a settlement of claims.

• Acted for Zurich Insurance in respect of a claim for damage to a gas pipeline in the Arthit gas field in Thailand.

• Advised a Japanese contractor on price escalation issues on a FIDIC form of contract relating to the construction of the Thi Vai International Port in Vung Tau Province, Vietnam.

• Acting for a Hong Kong listed mining company in relation to claims arising from earth movements at a gold mine in Indonesia.

• Acting for a major developer on a case of defective workmanship in the laying of floor tiles in projects in Asia, including advice on professional negligence and contractors’ warranties.

Town Planning/Judicial ReviewWe have had increased exposure in the field of planning and building appeals and judicial review activity, especially regarding town planning issues. The Hong Kong Government has a difficult role in responding to perceived public aspirations regarding height, density, views and air ventilation, while maintaining a positive economic framework for development and preserving private property rights.

“established reputation for undertaking complex, sophisticated litigation.”



SOME OF OUR IMPORTANT TR ANSACTIONS INCLUDE:

• Representing Hysan Development in:

» Successful building plans application for the large scale commercial/retail/office development of Hysan Place in Causeway Bay involving a total gross floor area of 710,000 sq. ft.

» Judicial review of Causeway Bay Outline Zoning Plan and Wan Chai Outline Zoning Plan.

» An appeal to the Buildings Appeal Tribunal for a proposed combined redevelopment.

• Representing the Real Estate Developers Association of Hong Kong in:

» Judicial review proceedings challenging amendments to four Outline Zoning Plans introducing building height and other restrictions, and on procedural fairness issues.

» Separate judicial review proceedings challenging the Building Authority’s Proof of ownership requirements, including making an application to the Court of Appeal for intervention in related cases.

• Acted for SEA Holdings Limited in a successful appeal to the Town Planning Appeal Board against the Town Planning Board’s refusal to grant planning permission in a “Comprehensive Development Area,” adjacent to the East Rail.

• Won an appeal in the Court of Appeal on a judicial review against the Town Planning Board in respect of its decision to grant temporary town planning permission to the Asphalt Association to set up and operate an asphalt plant.

• Successfully represented a subsidiary of the Podium

Development Company in a judicial review which resulted in the quashing of the decisions of the Town Planning Board and a decision of the Chief Executive in Council in relation to the zoning of land within the Outline Zoning Plan for the Clearwater Bay Peninsula North.

• Represented Wharf Properties Limited, a developer, in an appeal against the rejection of building plans.

• Acted for Swire Properties Limited and succeeded in the judicial review of the Town Planning Appeal Board’s decision in relation to plot ratio restrictions at the Castle Steps Development in Hong Kong.

• Acted for the Appellant in the Court of Final Appeal concerning a claim against the Lands Department for damages arising from the breach of its obligations in processing master layout plans under a land grant.

• Represented Hong Kong Sanatorium & Hospital Limited in High Court judicial review proceedings concerning amendments to the zoning plan.

• Acted for Union Church in a judicial review of the Town Planning Board’s imposition of a three storey height limit on a church building.

• Representing agreggate suppliers in High Court judicial review proceedings concerning the Lands Department’s repeated grant of short term waivers.

EnvironmentalAlthough not so heavily regulated as Europe and the US, environmental matters are becoming an increasingly important part of the corporate agenda in Hong Kong and across Asia. As far as China is concerned, the Chinese Government has recently

“It has niche expertise in environmental matters and town planning, built around its core construction offering.”

- Chambers Asia Pacific (2011)

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“The firm has recently integrated a strong environmental practice and has advised on a number of issues relating to carbon emissions, waste disposal and reforestation.”


enacted a number of important regulations in this respect such as the Regulations on the Administration of Recovery and Disposal of Waste Electrical and Electronic Products in February 2009 and the related Technical Specifications of Pollution Control for Processing Waste Electrical and Electronic Equipment in January 2010.

Our Environmental practice offers advice on the full range of environmental law, health and safety and liability issues from regional and international perspectives. Environmental law is one of our niche focuses surrounding the construction industry in China. We have advised a number of our clients on issues such as:

• Regulatory and compliance for construction projects in China

• Issues arising out of the China RoHS and WEEE directives

• Renewable and clean energy initiatives

• Environmental assessment

SOME OF OUR IMPORTANT ENVIRONMENTAL TR ANSACTIONS INCLUDE:

• Advising a New York based leading financial information services, news and media company on issues arising out of PRC environmental rules and regulations including China RoHS and WEEE directives.

• Advising a leading Australian bank on issues arising out of an emission reductions purchase agreement for use in a CDM project in Gansu Province, China.

• Advised a Denmark based leading global supplier of paint related products on regulatory issues arising out of their waste water/gas treatment works for its paint production plant in Guangzhou.

• Advising a cement company on land, environmental, town planning and construction aspects of a PRC pilot co-combustion plant project involving the incineration of waste and the recycling of the end product into building materials.

• Advised a utility company in an underwater pipeline between Tai Po, Hong Kong and Shenzhen, China. We advised on all environmental aspects of the Project including water pollution, preservation of the ecological environment and engagement of consultants.

• Advised statutory bodies on compliance with permit requirements under the Environmental Impact Assessment Licensing Regime in Hong Kong.

• Advised a statutory body on compliance with water pollution registration in Hong Kong.

• Advising numerous developer clients on town planning and environmental aspects of urban development.


Talk to Us

HONG KONG

Geoffrey ChanPartner+852 2843 [email protected]

Venna ChengPartner+852 2843 [email protected]

Menachem Hasofer Partner +852 2843 [email protected]

Mei Ling Lew Partner+852 2843 2491 [email protected]

SINGAPORE

Nathan DoddPartner+65 6327 [email protected]

BEIJING

Tom FuPartner+86 10 6599 [email protected]

HO CHI MINH CIT Y

David HarrisonPartner+84 8 3513 [email protected]

About Mayer Brown JSM

Mayer Brown JSM is part of Mayer Brown, a global legal services organisation, advising clients across the Americas, Asia, Europe and the Middle East. Our geographic strength means we can off er local market knowledge combined with global reach.

We are noted for our commitment to client service and our ability to assist clients with their most complex and demanding legal and business challenges worldwide. We serve many of the world’s largest companies, including a signifi cant proportion of the Fortune 100, FTSE 100, CAC 40, DAX, Hang Seng and Nikkei index companies and more than half of the world’s largest banks. We provide legal services in areas such as banking and fi nance; corporate and securities; litigation and dispute resolution; antitrust and competition; employment and benefi ts; environmental; fi nancial services regulatory and enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; private clients, trusts and estates.

Please visit www.mayerbrownjsm.com for comprehensive contact information for all our offi ces.

This publication provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is intended to provide a general guide to the subject matter and is not intended to provide legal advice or be a substitute for specifi c advice concerning individual situations. Readers should seek legal advice before taking any action with respect to the matters discussed herein.

Mayer Brown is a global services provider comprising legal practices that are separate entities, including Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated (collectively the “Mayer Brown Practices”), and affi liated non-legal service providers, which provide consultancy services (the “Mayer Brown Consultancies”). The Mayer Brown Practices and Mayer Brown Consultancies are established in various jurisdictions and may be a legal person or a partnership. Details of the individual Mayer Brown Practices and Mayer Brown Consultancies can be found in the Legal Notices section of our website.

“Mayer Brown” and the Mayer Brown logo are the trademarks of Mayer Brown.

© 2018 The Mayer Brown Practices. All rights reserved.

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