Atkin Chambers was pleased to sponsor this year’s Society of Construction Law Hong Kong One Day International Conference at which Andrew Goddard QC and Philip Boulding QC of Keating Chambers co-chaired a lively discussion between panel and audience on “Recent and future developments for the construction industry”.
Alongside fellow panellists, Terrence Lui, Gammon Construction’s Digital Innovation Team Leader, independent arbitrator and mediator Christopher To, Mr Ian Heaphy, Director, IN Construction Consulting, and Paul Roberts from HKA Global, some key areas were debated including the role of artificial intelligence, the next generation of Business Information Modelling (BIM), the internet of things and smart buildings and smart contracts, drones and robotics.
Amongst the many interesting points that arose was the potential for the increased use of data collection on projects to provide an almost complete record of the underlying facts relevant to delay and disruption claims, claims that have traditionally been difficult to prove and quantify. In the new world of the internet of things, there is the potential for sensors to be fitted to allow Contractors to track workers and materials on site in order to see precisely what happened where and when.
Building information modelling (BIM) was also much discussed by the panel and audience. Whilst it was generally accepted that BIM is a helpful tool for design and construction, many thought that cost is a barrier to entry, preventing smaller enterprises from competing with larger players.
Some delegates expressed the view that in order to progress the take-up of BIM, its use should be written into government contracts; a set of universal standards should be developed and software made readily available. Without these, cost and risk would generally remain with Contractors. At least one panellist expressed the view that the HKSAR Government should be funding and/or subsidising the introduction of BIM in Hong Kong.
A further issue discussed was the potential for disputes arising over control and access to the BIM model. One of the first such disputes in the UK, Trant Engineering v Mott MacDonald [2017] EWHC 2061 (TCC) was recently resolved in the High Court by the grant of an injunction requiring access to the model, which had been withdrawn by the BIM developers over a payment dispute, to be restored.
The Panel and audience agreed that parties need to give careful consideration to these issues at the time when the contractual arrangements are drafted. It is not sufficient to assume that standard contract terms will adequately address the specific needs of the parties.
A related issue raised during the discussion was the need to consider the possibility of insolvency of the entity controlling the BIM model. This issue deserves particular attention where parties intend to operate and utilise the BIM model over a long period of time – for example to assist with future maintenance of an asset such as a commercial building over what might typically be a 20 or 30-year life cycle.
