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News & insights on Energy & Infrastructure

News / UAE Ministerial Directive Gives the Green Light towards Allowing Enforcement of English Court Judgments onshore the UAE

21-09-2022 / Energy & Infrastructure

On 13 September 2022, the UAE Ministry of Justice (MOJ) issued a landmark directive to the President of the Dubai Courts, referring to a recent English Court judgment in Lenkor Energy Trading DMCC v Puri (2020) EWHC 75 (QB) which enforced a UAE Court judgment, and urging the Dubai Courts to take requisite steps to follow the principle of reciprocity when it comes to enforcing English Court judgments in the UAE.

UAE Ministerial Directive Gives the Green Light towards Allowing Enforcement of English Court Judgments onshore the UAE

News / Climate change litigation update: Derivative claim dismissed

06-07-2022 / Energy & Infrastructure

McGaughey & Anor v Universities Superannuation Scheme Ltd & Anor [2022] EWHC 1233 (Ch) On 24 May 2022, the High Court refused a claim brought against the directors of the Universities Superannuation Scheme (the “USS”), the largest private pension scheme in the UK, for inaction around climate change commitments.

Climate change litigation update: Derivative claim dismissed

News / Refund guarantees – avoiding drafting pitfalls

12-05-2022 / Energy & Infrastructure

Refund guarantees are often described as the cornerstones to shipbuilding projects and the buyer’s main security. Although they do not strictly form part of the shipbuilding contract, a shipbuilding project is unlikely to go ahead at all without one. It is therefore important to understand the different types of guarantee instruments, and the impact each has in practice on the guarantor’s obligations to pay and the buyer’s entitlement to recovery. A well-drafted guarantee provides certainty to the parties and strikes a balance between their respective entitlements and obligations.

Refund guarantees – avoiding drafting pitfalls

News / You will be estopped if you cross the line

04-04-2022 / Energy & Infrastructure

Estoppel is a useful tool in litigation, which is usually used to bind one party to a statement or a promise that it has previously expressed causing another to accept or adopt it for the purpose of their legal relations. The Court’s recent ruling in Geoquip Marine Operations AG v (1) Tower Resources Cameroon SA (2) Tower Resources PLC addresses estoppel by convention and recognises the requirement for the common assumption created between the parties to be clear and unequivocal. In this article, we focus on the specifics of the Court decision.

You will be estopped if you cross the line

News / Court of Appeal overturns second Unaoil bribery conviction

29-03-2022 / Energy & Infrastructure

On 24 March 2022, the Court of Appeal overturned the conviction of a second man, Paul Bond, prosecuted by the Serious Fraud Office (SFO) in relation to alleged wrongdoing by Unaoil. 

Court of Appeal overturns second Unaoil bribery conviction

News / The Court grapples with impact of Covid-19 on European rugby

08-03-2022 / Energy & Infrastructure

As we approach the second anniversary of Covid-19 being declared a pandemic by the World Health Organisation on 11 March 2020, a number of judgments are coming out of the English Courts which are providing useful guidance on how the English Courts are treating claims concerning Covid-19, especially in a force majeure context.

The Court grapples with impact of Covid-19 on European rugby

News / Climate change litigation: Courts decide the law, not political policies

02-03-2022 / Energy & Infrastructure

R (Finch) v Surrey County Council CA (Civ Div) [2022] EWCA Civ 187 “The task of the court in a claim such as this is only to decide the issues of law. Those issues cannot extend into the realm of political judgment – which is the responsibility of the executive, not the courts …”

Climate change litigation: Courts decide the law, not political policies

News / Climate litigation update: climate-washing comes ashore

28-02-2022 / Energy & Infrastructure

With companies racing to make sense of and take steps towards a net-zero future, an array of climate goals are being published at ever increasing speed; it remains to be seen how achievable many of these goals are without concrete plans in place. Accusations of ‘climate-washing’ are rife and statements have been legally challenged. Current investigations and actions show the direction of travel as pressure groups and public organisations seek to hold private sector companies to account.

Climate litigation update: climate-washing comes ashore

News / Serious Fraud Office awards bribery compensation for Nigerian infrastructure

22-02-2022 / Energy & Infrastructure

We previously reported on the Deferred Prosecution Agreement (DPA) entered into between the SFO and Amec Foster Wheeler Limited (Amec) relating to the use of corrupt agents in the oil and gas sector. The timing of the agreement was particularly significant, as it came on the tenth anniversary of the Bribery Act 2010 and was the tenth DPA entered into by the SFO. As part of the DPA, we reported that Amec had agreed to pay a financial penalty to authorities in the UK, US and Brazil, including compensation to the people of Nigeria.

Serious Fraud Office awards bribery compensation for Nigerian infrastructure

Insights / Maximising economic recovery of petroleum is not irrational on the road to net zero

27-01-2022 / Energy & Infrastructure

The English Court has dismissed another attempt to disrupt production of hydrocarbons on the UK Continental Shelf, ruling that the OGA’s Strategy for Maximising the Economic Recovery (MER) of UK Petroleum is not irrational and not unlawful.

Maximising economic recovery of petroleum is not irrational on the road to net zero

Insights / Climate change litigation update: Ewan McGaughey et al v Universities Superannuation Scheme Limited

25-01-2022 / Energy & Infrastructure

A claim has been brought against the directors of the Universities Superannuation Scheme (the “USS”), the largest private pension scheme in the UK, for inaction around climate change commitments.

Climate change litigation update: Ewan McGaughey et al v Universities Superannuation Scheme Limited

Insights / Court of Appeal overturns Unaoil bribery conviction

16-12-2021 / Energy & Infrastructure

On 10 December 2021, the Court of Appeal in R v Akle & Anor [2021] EWCA Crim 1879 concluded that the Serious Fraud Office’s (SFO) failure to disclose vital evidence had unfairly led to Ziad Akle (Akle) being convicted and jailed for bribery.

Court of Appeal overturns Unaoil bribery conviction

Insights / Is civil litigation a proper tool to stop climate change?

02-12-2021 / Energy & Infrastructure

The case of Saul Luciano Lliuya vs RWE - an example of a pending climate litigation case in Germany

Is civil litigation a proper tool to stop climate change?

Insights / Doctrine of merger does not apply where judgment is for declaratory relief only

01-11-2021 / Energy & Infrastructure

Zavarco plc v Tan Sri Syed Mohd Yusof Bin Tun Syed Nasir [2021] EWCA Civ 1217

Doctrine of merger does not apply where judgment is for declaratory relief only

Insights / Climate Change Litigation Continueth – The Scottish Case: Greenpeace v. BEIS and the OGA (and BP too)

15-10-2021 / Energy & Infrastructure

The Scottish Court of Session has declared that dealing with the global environmental impact of the consumption of oil is a political matter for the UK Government, not a legal issue for the UK Courts in considering the validity of approval to drill new oil wells in a single field.

Climate Change Litigation Continueth – The Scottish Case: Greenpeace v. BEIS and the OGA (and BP too)

News / AfCFTA and Energy & Infrastructure

11-10-2021 / Energy & Infrastructure, Maritime

This article is the third in a series of articles looking at the impact of the African Continental Free Trade Area (the “AfCFTA”) on various practice areas and industry sectors that our clients operate in. This article focuses on Energy and Infrastructure and addresses some of the key questions our clients have asked us.

AfCFTA and Energy & Infrastructure

Insights / Supreme Court clarifies lawful act of duress

21-09-2021 / Energy & Infrastructure

In Times Travel (UK) Ltd v Pakistan International Airlines Corporation (Rev 2) [2019] EWCA Civ 828, the Supreme Court confirmed the existence of the doctrine of ‘lawful act duress’ under English law and its limited scope in commercial transactions.

Supreme Court clarifies lawful act of duress

News / Shell agrees pay out to Nigerian community to settle long-running oil spill dispute

17-08-2021 / Energy & Infrastructure

In 1991, the Ejama-Ebubu people began a legal campaign to hold Shell Nigeria (“Shell”) accountable for an oil spill that occurred in 1970. Shell accepted that these oil spills had occurred, but argued that these were caused by “third parties” during the Biafran war, for which Shell should not be held liable. Almost 20 years later, in 2010, a Nigerian Federal court ordered Shell to pay 17 billion naira to the Ejama-Ebubu community. Shell has unsuccessfully attempted to challenge this ruling over several years and, in November 2020, the Nigerian Supreme Court ruled that Shell could no longer appeal the decision.

Shell agrees pay out to Nigerian community to settle long-running oil spill dispute

News / The Bribery Act: ten years on

19-07-2021 / Energy & Infrastructure

The Bribery Act: ten years on

News / The rise in climate change litigation: Royal Dutch Shell and beyond

15-07-2021 / Energy & Infrastructure

Climate change litigation is a growing trend, as the legal industry bears witness to a constant rise in claims brought against both governments and private corporations for either failing to prevent, or contributing to, harmful carbon emissions across the world.

The rise in climate change litigation: Royal Dutch Shell and beyond

Insights / LOGIC General Terms & Conditions Edition 3: Our considerations

30-06-2021 / Energy & Infrastructure

LOGIC has recently published Edition 3 of the LOGIC General Terms & Conditions (Including Guidance Notes) of Contract for Marine Construction (referred to herein as the “Contract”).

LOGIC General Terms & Conditions Edition 3: Our considerations

Insights / The High Court reminder: Where does liability for decommissioning costs lie?

24-05-2021 / Energy & Infrastructure

Apache UK Investment Limited v. Esso Exploration and Production UK Limited [2021] EWHC 1283 (Comm)

The High Court reminder: Where does liability for decommissioning costs lie?

Insights / Take or pay: does a breach of capacity obligation cause loss?

09-02-2021 / Energy & Infrastructure

British Gas Trading Limited v Shell UK Limited, Esso Exploration & Production UK Limited [2020] EWCA Civ 2349

Take or pay: does a breach of capacity obligation cause loss?

Insights / Brexit: Jurisdiction clauses and the enforcement of judgments... where are we now?

27-01-2021 / Energy & Infrastructure

The Brexit transition period came to an end on 31 December 2020, shortly before which the UK and the EU were finally able to agree on a trade deal.

Brexit: Jurisdiction clauses and the enforcement of judgments... where are we now?

Insights / Brexit: what does this mean for jurisdiction clauses and the enforcement of judgments?

19-10-2020 / Energy & Infrastructure

It is important not to lose sight of the potential impact that Brexit will have on disputes that are governed by English law and subject to the English court jurisdictions

Brexit: what does this mean for jurisdiction clauses and the enforcement of judgments?

Insights / New UK restructuring tool set to jack up floundering offshore sector

16-07-2020 / Energy & Infrastructure

The Covid-19 pandemic has brought considerable challenges, as well as potential opportunities, to the offshore sector. Offshore drilling continues to face difficulties and is expected to be the worst performing subsector of the oil sector, with rig utilisation at around 60%.

New UK restructuring tool set to jack up floundering offshore sector

Insights / Scottish Court sanctions the Premier Oil Scheme of Arrangement confirming the flexibility of the scheme of arrangement to implement novel restructuring solutions

12-05-2020 / Energy & Infrastructure

Successful creditor challenges to schemes of arrangement are incredibly rare, and ARCM’s challenge to Premier Oil’s scheme [1] has not bucked this trend. This scheme raised a broad range of issues which, subject to the outcome of the appeal, have been addressed to confirm the broad, flexible scope of the scheme of arrangement to implement creative restructuring solutions in the face of opposition from minority creditor groups. We provided an overview of the scheme of arrangement process and some of the issues raised by the Premier Oil scheme in our previous bulletins [2] .

Scottish Court sanctions the Premier Oil Scheme of Arrangement confirming the flexibility of the scheme of arrangement to implement novel restructuring solutions

News / Ince part of the winning Offshore Project Finance Deal of the Year for 2019

04-05-2020 / Energy & Infrastructure, Maritime

Golar LNG & Keppel Capital, FLNG Gimi – US$ 700m Senior Secured Term Loan awarded ‘Offshore Project Finance Deal of the Year’.

Ince part of the winning Offshore Project Finance Deal of the Year for 2019

News / Ince announces new heads of Energy and Infrastructure Practice

23-04-2020 / Energy & Infrastructure

22 April 2020, London International legal and professional services firm Ince has today announced the appointments of Gillie Belsham and Chris Kidd as co-heads of its Energy and Infrastructure Practice.

Ince announces new heads of Energy and Infrastructure Practice

Insights / Economic duress or commercial leverage? The Court of Appeal clarifies the scope of “lawful act duress”

25-03-2020 / Energy & Infrastructure

It is a well-established principle of English law that a contract resulting from a threat of an unlawful act or omission may be avoided at the option of the aggrieved party. The Court of Appeal’s decision in Times Travel (UK) Ltd v Pakistan International Airlines Corporation (Rev 2) [2019] EWCA Civ 828 provides a long-awaited clarification on whether a contract may be avoided if it is entered into following pressure involving a threat to do something lawful i.e. “lawful act duress”.

Economic duress or commercial leverage? The Court of Appeal clarifies the scope of “lawful act duress”

Insights / Energy & Infrastructure The Smart Bulletin October 2019

09-10-2019 / Energy & Infrastructure

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.

Energy & Infrastructure The Smart Bulletin October 2019

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

News / Rania Tadros, invited by Thompson Reuters to Transforming Women's Leadership in Law networking Breakfast

24-09-2019 / Energy & Infrastructure, Maritime

Rania Tadros Managing Partner of Ince (Dubai) recently attended the “Transforming Women’s Leadership in Law Networking Breakfast” session, hosted by Thomson Reuters. Following the session Rania sat down with Maha Abboud and discussed work life balance and how she manages this in order to have a successful career. She also discussed the challenges she has faced in her career and what advice she would give her younger self.

Rania Tadros, invited by Thompson Reuters to Transforming Women's Leadership in Law networking Breakfast

News / Attacks on Oil Facilities in Saudi Arabia – Potential Legal Issues

16-09-2019 / Energy & Infrastructure

On 14 September 2019 a large-scale drone attack targeted some of Saudi Arabia's principal oil production and processing facilities. In particular, the attack targeted the Khurais oil field and the Abqaiq processing facility, which is the world’s largest.

Attacks on Oil Facilities in Saudi Arabia – Potential Legal Issues

News / Ince advises Japanese shipowner MOL on Hong Kong's first offshore LNG terminal

02-07-2019 / Maritime, Energy & Infrastructure

2 Julynbsp2019, Singapore - Leading international law firm, Ince, has advised Japanese shipowner, Mitsui OSK Lines (MOL), on the supply of a floating storage and regasification unit (FSRU) to the Hong Kong Offshore LNG terminal project (the Project)

Ince advises Japanese shipowner MOL on Hong Kong's first offshore LNG terminal

News / Ince advises Japanese shipowner MOL on Hong Kong’s first offshore LNG terminal

02-07-2019 / Energy & Infrastructure, Maritime

2 July 2019, Singapore - Leading international law firm, Ince, has advised Japanese shipowner, Mitsui O.S.K. Lines (MOL), on the supply of a floating storage and regasification unit (FSRU) to the Hong Kong Offshore LNG terminal project (the “Project”).

Ince advises Japanese shipowner MOL on Hong Kong’s first offshore LNG terminal

Insights / Energy & Infrastructure The Smart Bulletin June 2019

28-06-2019 / Energy & Infrastructure

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.

Energy & Infrastructure The Smart Bulletin June 2019

News / Are liquidated damages payable post-termination?

28-06-2019 / Energy & Infrastructure

In Triple Point Technology, Inc. v PTT Public Company Limited [2019] EWCA Civ 230, the Court of Appeal has clarified a line of conflicting authorities on the question of whether liquidated damages can be claimed following the termination of a contract. The Court of Appeal held that the relevant provision did not, on its wording, apply where the contract was terminated and the original contractor failed to complete the works. It is a salient reminder of the need to construe liquidated damages clauses using ordinary principles of interpretation, rather than proceeding on the assumption that liquidated damages will be payable post-termination.

Are liquidated damages payable post-termination?

News / IR35 and changes in private sector contracting arrangements

28-06-2019 / Energy & Infrastructure

Contractors are widely used in the oil and gas sector to ensure flexibility of resource, cost control and engagement of highly skilled individuals for technical workstreams. The arrangements with contractors may be direct between the contractor and end user or involve an intermediary company which supplies the contractor to the end user. The use of the latter arrangement has been subject to HMRC scrutiny and IR35 legislation was introduced in 1999 to combat potential tax avoidance by workers supplying their services to end users through an intermediary, such as a Personal Service Company (“PSC”). If, but for the intermediary, the worker would be an employee of the end user, then IR35 will apply.

IR35 and changes in private sector contracting arrangements

News / IR35 and changes in private sector contracting arrangements

28-06-2019 / Energy & Infrastructure

Contractors are widely used in the oil and gas sector to ensure flexibility of resource, cost control and engagement of highly skilled individuals for technical workstreams. The arrangements with contractors may be direct between the contractor and end user or involve an intermediary company which supplies the contractor to the end user. The use of the latter arrangement has been subject to HMRC scrutiny and IR35 legislation was introduced in 1999 to combat potential tax avoidance by workers supplying their services to end users through an intermediary, such as a Personal Service Company (“PSC”). If, but for the intermediary, the worker would be an employee of the end user, then IR35 will apply.

IR35 and changes in private sector contracting arrangements

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