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Smart Contracting Bulletin October 2018

News / / Beijing, Dubai, Hamburg, Hong Kong, Smart Contracting Bulletin October 2018, Piraeus, Shanghai, Singapore

We are pleased to share with you the latest edition of Ince & Co's Smart Contracting 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

News / Internal affairs: the Court of Appeal's second bite at the cherry of privilege

16-10-2018 / Energy & Infrastructure

“The right for anyone to communicate confidentially with their lawyer is a fundamental part of our legal system and we want to ensure that this right is protected for all of us, including corporations” : Joe Egan, Law Society President.

Internal affairs: the Court of Appeal's second bite at the cherry of privilege

News / Force majeure event: the sole reason for failure to perform?

16-10-2018 / Energy & Infrastructure

In Seadrill Ghana Operations Limited v Tullow Ghana Limited [2018] EWHC 1640 (Comm), the English High Court held that for a party to rely on a force majeure event to terminate a contract, that party’s failure to perform must be caused solely by the force majeure event.

Force majeure event: the sole reason for failure to perform?

News / Weighing anchors: parent company control must be effective and not just perceived

16-10-2018 / Energy & Infrastructure

The Court of Appeal has upheld the decision at first instance in AAA & Others v Unilever PLC and Unilever Tea Kenya Limited [2018] EWCA Civ 1532. Following on from our June 2018 Bulletin in which we discussed the decision in Okpabi v Royal Dutch Shell PLC [2018] EWCA Civ 191, this case also concerns the liability of parent companies as anchor defendants for acts or omissions associated with subsidiaries within the group which are registered abroad.

Weighing anchors: parent company control must be effective and not just perceived

News / Entire Agreement clause excludes liability for misrepresentation notwithstanding express proviso

16-10-2018 / Energy & Infrastructure

In NF Football Investments Limited and another v NFFC Group Holdings Limited and another [2018] EWHC 1346 (Ch), NF Football Investments (NF) entered into a share purchase agreement with NFF Group Holdings (NFF) by which NF purchased all the shares in Nottingham Forest Football Club from NFF. During the due diligence ahead of the agreement, NFF represented that the liabilities of the Club were about £6.5 million whereas NF argued that the true liabilities of the Club were over £10 million. NF claimed that NFF had misrepresented the liabilities and therefore owed NF the difference. NFF sought summary judgment dismissing the claim by NF.

Entire Agreement clause excludes liability for misrepresentation notwithstanding express proviso

News / Concurrent delay and the express allocation of risk

16-10-2018 / Energy & Infrastructure

The Court of Appeal has upheld a decision of the Technology and Construction Court that parties to a construction contract can agree how to allocate the risk of concurrent delay to the works and exclude the prevention principle: North Midland Building Limited v Cyden Homes Limited [2018] EWCA Civ 1744.

Concurrent delay and the express allocation of risk

News / To be, or not to be privileged: that is the question

16-10-2018 / Energy & Infrastructure

Generally speaking, clients have the right to speak freely and openly with their lawyer(s) without fearing any repercussions, which is why the law on privilege is so important. But what happens when lawyers make a mistake and privileged information is disclosed to the other side? Here we look at how the court exercised its equitable jurisdiction in Single Buoy Moorings Inc v Aspen Insurance UK Limited [2018] EWHC 1763 (Comm) upon hearing two applications by the Defendant relating to disclosure and privilege.

To be, or not to be privileged: that is the question

News / Implied terms, deleted words and Entire Agreement clauses

16-10-2018 / Energy & Infrastructure

In our February 2018 Bulletin, we reported on three recent cases which applied the test for the implication of terms set out in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another [2015] UKSC 72. Since then, the Court of Appeal has given judgment in another two cases - Bou-Simon v BGC Brokers LP [2018] EWCA Civ 1525 and JN Hipwell & Son v Szurek [2018] EWCA Civ 674 – providing further guidance on the process trial judges should adopt on the implication of terms. In Bou-Simon, the Court of Appeal also had cause to consider when and what, if any, use can be made of words deleted or omitted in earlier versions of an agreement in the implication process while in JN Hipwell & Son, the interaction between Entire Agreement clauses and the implication of terms was considered.

Implied terms, deleted words and Entire Agreement clauses

News / Difficulties in challenging arbitrator appointments: impartiality, conflicts and apparent bias

16-10-2018 / Energy & Infrastructure

With strategic challenges to a party’s proposed arbitrator becoming more common, the Court of Appeal has recently considered apparent bias and conflicts of interest in arbitrator appointments in the case of Halliburton Company v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817.

Difficulties in challenging arbitrator appointments: impartiality, conflicts and apparent bias

News / Exclusion clauses and reasonableness under UCTA: further clarifications

16-10-2018 / Energy & Infrastructure

The Court of Appeal decisions in two recent cases clarify the position as to when an exclusion clause might be subjected to UCTA’s reasonableness test and also give further guidance as to when a clause will be deemed unreasonable and, therefore, unenforceable.

Exclusion clauses and reasonableness under UCTA: further clarifications

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