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News & insights on Energy & Infrastructure

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 / The Hague court of appeal finds in favour of Nigerian farmers against Shell

16-02-2021 / Energy & Infrastructure

On 26 June 2005, Shell Nigeria was notified of a leak in an underground oil pipeline near Oruma. As a result of the leak, oil was visible bubbling out of the ground. Before the leak was closed, around 400 barrels of oil had been spilled (approximately 65,000 litres).

The Hague court of appeal finds in favour of Nigerian farmers against Shell

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

News / A stitch in SUPPLYTIME 2017

28-06-2019 / Energy & Infrastructure

In a decision handed down last month, the Commercial Court has considered, for the first time, the consequences under clause 12(e) of BIMCO SUPPLYTIME 2017 of failing to dispute an invoice before the due date: Boskalis Offshore Marine Contracting BV v Atlantic Marine and Aviation LLP (Atlantic Tonjer) [2019] EWHC 1213 (Comm).

A stitch in SUPPLYTIME 2017

News / Infelicities of expression, the bane of the hard-pressed lawyer - a disclosure pilot update

28-06-2019 / Energy & Infrastructure

“It will remain our inexorable direction of travel to maintain the White Book as the practitioners’ text of choice.” – Sir Geoffrey Vos, Chancellor of the High Court and Editor-in-Chief of the White Book in the Preface to the 2019 Edition. The White Book: the procedural text which contains the Civil Procedure Rules (“CPR”) together with commentaries as to application, and which is used extensively by the judiciary, barristers and solicitors. Unfortunate then, that the Chancellor himself should declare the White Book to be wrong in relation to the new disclosure pilot scheme in the Business and Property Courts in England and Wales which came into force through Practice Direction 51U of the CPR on 1 January 2019 (the “Pilot”) and its application to proceedings where standard disclosure had been ordered by the court prior to commencement of the Pilot.

Infelicities of expression, the bane of the hard-pressed lawyer - a disclosure pilot update

News / Sins of the fathers: Supreme Court clarifies the rules for establishing anchor defendants

28-06-2019 / Energy & Infrastructure

Contrary to other recent decisions, the Supreme Court has upheld the Court of Appeal in Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20, by unanimously dismissing the Appellants' appeal on the grounds of jurisdiction and allowing proceedings against a UK-based “anchor defendant”, so also securing jurisdiction in England against the overseas defendant.

Sins of the fathers: Supreme Court clarifies the rules for establishing anchor defendants

News / ICC arbitration awards – a reasonable expectation of privacy?

28-06-2019 / Energy & Infrastructure

On 01 January 2019, the International Chamber of Commerce (“ICC”) issued a “Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration” (the “Note”). The Note contains practical guidance to parties and arbitrators conducting arbitrations under the ICC Rules. Although references to the ICC Rules in the Note are to the 2017 Rules (which are currently in force), the Note itself makes clear that, unless otherwise indicated, the guidance provided applies to all ICC arbitrations, regardless of the version of the Rules they are being conducted under. Largely, the Note provides administrative guidance, for example, which arbitration documents must be sent in hard copy, and to whom. It also addresses, amongst other things, costs of the arbitration, and fees incurred by the Tribunal in carrying out their duties. For the most part, the content is uncontroversial. However, where parties currently in ICC arbitrations may pause for thought is section IIID.

ICC arbitration awards – a reasonable expectation of privacy?

News / ICC arbitration awards a reasonable expectation of privacy

28-06-2019 / Energy & Infrastructure

On 01 January 2019, the International Chamber of Commerce (ICC) issued a Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration (the Note) The Note contains practical guidance to parties and arbitrators conducting arbitrations under the ICC Rules Although references to the ICC Rules in the Note are to the 2017 Rules (which are currently in force), the Note itself makes clear that, unless otherwise indicated, the guidance provided applies to all ICC arbitrations, regardless of the version of the Rules they are being conducted under Largely, the Note provides administrative guidance, for example, which arbitration documents must be sent in hard copy, and to whom It also addresses, amongst other things, costs of the arbitration, and fees incurred by the Tribunal in carrying out their duties For the most part, the content is uncontroversial However, where parties currently in ICC arbitrations may pause for thought is section IIID

ICC arbitration awards  a reasonable expectation of privacy

News / Contract in need of a CATS scan? Interpretative treatment of lengthy long-term contracts

28-06-2019 / Energy & Infrastructure

In Teesside Gas Transportation Ltd v CATS North Sea Ltd and others [2019] EWHC 1220 (Comm), the Commercial Court has provided guidance on the principles of contractual interpretation which apply to lengthy, complex and long-term contracts.

Contract in need of a CATS scan? Interpretative treatment of lengthy long-term contracts

News / Contract in need of a CATS scan Interpretative treatment of lengthy long-term contracts

28-06-2019 / Energy & Infrastructure

In Teesside Gas Transportation Ltd v CATS North Sea Ltd and others 2019 EWHC 1220 (Comm), the Commercial Court has provided guidance on the principles of contractual interpretation which apply to lengthy, complex and long-term contracts

Contract in need of a CATS scan Interpretative treatment of lengthy long-term contracts

News / English law prevails in the face of an extra-territorial challenge from the US

28-06-2019 / Energy & Infrastructure

In ACL Netherlands BV, Hewlett-Packard The Hague BV and others v Michael Lynch & Sushovan Hussain [2019] EWHC 249 (Ch) the High Court refused to give permission for witness statements and other disclosed material in English proceedings to be provided to the FBI pursuant to a subpoena issued by a US court.

English law prevails in the face of an extra-territorial challenge from the US

News / “Practical completion” considered

28-06-2019 / Energy & Infrastructure

The Court of Appeal has recently considered the meaning of “practical completion” in a construction contract, and the circumstances under which practical completion may be prevented: Mears Limited v Costplan Services (South East) Limited, Plymouth (Notte Street) Limited, J.R. Pickstock Limited [2019] EWCA Civ 502.

“Practical completion” considered

News / Practical completion considered

28-06-2019 / Energy & Infrastructure

The Court of Appeal has recently considered the meaning of practical completion in a construction contract, and the circumstances under which practical completion may be prevented Mears Limited v Costplan Services (South East) Limited, Plymouth (Notte Street) Limited, JR Pickstock Limited 2019 EWCA Civ 502

Practical completion considered

News / Fortuitous discovery of earlier expert report is no basis to vary an order retrospectively

28-06-2019 / Energy & Infrastructure

On appeal, the High Court has endorsed the approach that if there is a principled way in which a vehicle can be identified to order disclosure of a prior privileged report, disclosure should be ordered. However, attempting to use general case management powers or varying an order after it has been made is not permitted.

Fortuitous discovery of earlier expert report is no basis to vary an order retrospectively

News / First SMART contracting seminar in Dubai

11-02-2019 / Energy & Infrastructure

On Thursday 7 February 2019, we held our first SMART contracting seminar in Dubai as a newly merged firm

First SMART contracting seminar in Dubai

News / Energy Infrastructure Smart Contracting Bulletin February 2019

06-02-2019 / Energy & Infrastructure

We are pleased to share with you the latest edition of the Ince Gordon Dadds Energy nbspInfrastructurenbspSmart Contracting Bulletin Our aim is to keep those working in the Energy Infrastructure sectors up-to-date with relevant legal developments Download the PDF version

Energy  Infrastructure Smart Contracting Bulletin February 2019

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