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Energy & Infrastructure The Smart Bulletin October 2019

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We are pleased to share with you the latest edition of the Ince Smart Bulletin. Our aim is to keep those working in the Energy & Infrastructure sectors up-to-date with relevant legal developments. 

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Featured news & insights

Insights / Force majeure clauses, “but for” causation and the compensatory principle

08-10-2019 / Energy & Infrastructure

In the recent case of Classic Maritime Inc v Limbungan Makmur SDN BHD [2019] EWCA Civ 1002 the Court of Appeal has upheld a Commercial Court decision on the interpretation of the causation requirement in a force majeure clause in a long-term contract of affreightment. It found the trial judge misapplied the compensatory principle in taking into account the impact the event of force majeure would have had on Charterers’ performance even though it could not rely on the force majeure event to avoid liability for its breach.

Force majeure clauses, “but for” causation and the compensatory principle

Insights / Direct payments to sub-contractors and the routes to recovery

08-10-2019 / Energy & Infrastructure

In Nobiskrug GmbH v Valla Yachts Limited [2019] EWHC 1219 (Comm), the Commercial Court considered the attempt of an owner to recover payments that it had made directly to a third party supplier (that had contracted with the yard) during the construction of a superyacht. The Commercial Court stressed the importance of establishing that the sums claimed by the third party suppliers were a result of a breach of Nobiskrug’s obligations and remitted the case back to the arbitration tribunal for further consideration.

Direct payments to sub-contractors and the routes to recovery

Insights / Clarification of the test for rectification for common mistake

08-10-2019 / Energy & Infrastructure

… we are unable to accept that the objective test of rectification for common mistake articulated in Lord Hoffmann's obiter remarks in the Chartbrook case correctly states the law.” The Court of Appeal clarifies test for rectification for common mistake in FSHC Group Holdings ltd v GLAS Trust Corporation Ltd [2019] EWCA Civ 1361.

Clarification of the test for rectification for common mistake

Insights / Get your ducks in a row – bring all elements of a claim together

08-10-2019 / Energy & Infrastructure

An important reminder from the High Court regarding res judicata and merger. In the judgment in Zavarco PLC v Tan Sri Syed Mohd Yusof Bin Tun Syed Nasir1, Chief Master Marsh held that the High Court had no jurisdiction to deal with the claim before it; the claimant’s cause of action merged in a judgment and order made in proceedings brought in 20162 (the “2016 Proceedings”). As such, the claimant’s cause of action had been extinguished.

Get your ducks in a row – bring all elements of a claim together

Insights / New BIMCO Cyber Security Clause

08-10-2019 / Energy & Infrastructure

With the increasing digitisation and use of information technology in the world today, the chance of becoming a victim of a cyber-attack is greater than ever. The energy industry is particularly susceptible as it seeks to increase the automation of processes in the interests of efficiency, safety and reducing the potential impact of human operational errors.

New BIMCO Cyber Security Clause

Insights / “What we've got here is a failure to communicate”

08-10-2019 / Energy & Infrastructure

The court considers the circumstances under which quantum meruit can be claimed. In the absence of a legally enforceable agreement a party can claim a quantum meruit, which is Latin for “what one has earned”, but the circumstances in which this might be claimed may well be limited.

“What we've got here is a failure to communicate”

Insights / Another brick in the wall: Singapore Convention builds enforcement options for international commercial disputes

08-10-2019 / Energy & Infrastructure

When it comes to legal proceedings to resolve disputes, there are two concerns uppermost in the minds of parties: costs, and enforceability of the outcome.

Another brick in the wall: Singapore Convention builds enforcement options for international commercial disputes

News / The use of NDAs – how far can you go following Government guidance?

08-10-2019 / Energy & Infrastructure

Following an inquiry launched by the Women and Equalities Select Committee (“WESC”) of the UK Parliament in 2018 into sexual harassment in the workplace and its subsequent report of 11 June 2019, the Department for Business, Energy & Industrial Strategy (“BEIS”) launched a further consultation on 4 March 2019 in response to the recommendations set out by WESC. BEIS proposed a number of key measures to prevent the unethical use of non-disclosure agreements (“NDAs”) and confidentiality clauses to silence victims of workplace harassment or discrimination. On 22 July 2019 the Government issued a response to BEIS’ proposals, which confirms it will legislate to implement a number of key changes to the use of NDAs and confidentiality clauses.

The use of NDAs – how far can you go following Government guidance?

News / Another milestone in the development of the English scheme as the international restructuring tool of choice

08-10-2019 / Energy & Infrastructure

The English scheme of arrangement sits alongside the US Chapter 11 as the ‘go to’ international restructuring tool of choice. Like Chapter 11, it is used to implement financial restructurings for overly-leveraged companies (where local restructuring processes are not able to deliver the restructuring). The English scheme, like its US cousin, has extremely permissive jurisdictional requirements. This has allowed a plethora of non-English companies to benefit from it. US-centric international groups, however, have tended to rely upon Chapter 11 as their restructuring tool of choice. This potentially changed on 10 September 2019, when the English court sanctioned a scheme for Syncreon, a US-headquartered group. This restructuring brings into sharp relief some of the perceived advantages of the English scheme - particularly regarding the relative costs of the two processes – and is a reminder to the energy sector to consider the benefits of implementing financial restructurings by means of the English scheme.

Another milestone in the development of the English scheme as the international restructuring tool of choice

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