UK Construction – Cybercrime is the Invisible Enemy

Cyber fraud is a real and present danger across almost all industry sectors, and the construction sector is not immune as our recent article demonstrated. According to the FCA there has been a jump of 52% in incident reports and recent global conflict may possibly increase this threat.

One of the primary types of fraud affecting the construction industry is the prevalence of payment diversion fraud. It is estimated that contractors pay out around £100m per year in fake invoices. In some cases, a single instance of payment diversion fraud can amount to millions of pounds. In such cases it is easy to see how the fraud would place intolerable pressure on the cash flow of a business and in extreme instances even lead to insolvency. In an industry already under pressure through factors such as super-inflation and rising energy costs, fraud is yet another unwelcome factor which can be detrimental to cash flow on a project.

To read the full text of this post by Matthew FriedlanderChris Recker and Sam Laycock, please visit the Duane Morris London Blog.

UK: Construction Supply Chains Struggle Under Pressure

In the construction sector solid cash flow throughout the supply chain is the lifeblood of most projects, no matter what size, and is arguably the single most important factor in ensuring that a project reaches its conclusion. However, the cumulative effect of various other factors such as Brexit, escalating global energy prices, the outlawing from 1 April 2022 of the use of the red diesel usage for construction plant, super inflation, higher material and labour costs and the end of government COVID-19 support schemes has led to increased lending costs and smaller profit margins.  As such, the construction supply chain is likely to come under ever increasing pressure in 2022.

To read the full text of this post by Duane Morris attorneys Matthew Friedlander and Tanya Chadha, please visit the Duane Morris London Blog.

The Ongoing Fallout from the Achmea Decision

In the Achmea case the Court of Justice of the European Union (ECJ) held that Article 8 of the Netherlands – Slovakia bilateral investment treaty, which allowed for the resolution of disputes by way of arbitration, was incompatible with EU law. The rationale for the decision was that a tribunal may have to interpret or apply EU law and where a question of law arose, unlike a Member State court, that question of law could not be referred to the ECJ. In other words, intra-EU bilateral investment treaty arbitration provisions, as reasoned by the ECJ, deprived the EU courts of jurisdiction in respect of the interpretation of EU law.

We raised the prospect that the ramifications from the decision were potentially far reaching and were not, it seemed, confined to the BIT between Netherlands and Slovakia.

To read the full text of this post by Duane Morris attorneys Vijay Bange and Matthew Friedlander, please visit the Duane Morris London Blog.

Is This the End of Intra-EU BIT Arbitrations?

The impact and uncertainty caused by the Achmea case on investor state dispute settlement provisions contained in intra-EU Bilateral Investment Treaties continues. These issues are potentially far reaching and may extend further than originally envisaged, namely that this case was arguably specific to the BIT between Netherlands and Slovakia.

To read the full text of this blog post by Duane Morris attorneys Vijay Bange and Matthew Friedlander, please visit the Duane Morris London Blog.

UK Construction: Not all Collateral Warranties are Construction Contracts

The contractual matrix of commercial construction projects commonly includes collateral warranties.  Collateral warranties typically grant a contractual cause of action to third parties (such as tenants or end-users) with an interest in the project who may not otherwise have a contract in place with parties that are designing, constructing or providing professional advice on the project.   For the beneficiary, a collateral warranty can therefore be invaluable.

To read the full text of this blog post by Duane Morris attorneys Matthew Friedlander and Tanya Chadha please visit the Duane Morris London Blog.

How Not to Settle a Dispute: Aqua v. Benchmark

In its latest offering, “CLC COVID-19 Claims and Disputes in Construction” the Construction Leadership Council (CLC) predicts that disputes related to COVID-19 are set to rise in 2021. While the optimist may hope that parties will continue to or aim to work collaboratively in order to find workable commercial solutions to claims arising from the global pandemic, the realist knows that such disputes are inevitable.

To read the full text of this blog post by Steve Nichol and Matthew Friedlander, please visit the Duane Morris London Blog.

The Curious Case of ABC v. Network Rail: Wasn’t It Obvious?

At first glance, the Court of Appeal’s recent decision in ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645 might look like the culmination of an exercise in legal hubris. This was, after all, a case focussed on the meaning of a single word in a contract; moreover, a word – “default” – that most of us in the legal profession might say has a well-established meaning.

And, after several hundred thousand pounds of legal fees no doubt well spent, the Court of Appeal told the world that the word “default” means exactly what we all thought it meant – a failure to fulfil an obligation.

To read the full text of this post by Duane Morris attorneys Steve Nichol and Matthew Friedlander, please visit the Duane Morris London Blog.

UK Construction & Engineering: Practice and Procedure: Pre-action Disclosure

Requests by a party for disclosure of further documents is often a vexed issue, and the motives may in some instances be tactical, and inevitably it’s a costly affair. Recently, its been reported that the insurers for HCC International Insurance Company, PLC in its dispute with Roc Nation LLC (Rapper Jay-Z’s management company), has sought a motion before a New York federal judge seeking disclosure of documents from a UK Broker, and which will entail the discovery requests to be ultimately pursued via the process in the UK courts. Roc Nation has alleged that this is an attempt to “kick the can farther down the road”, and is objecting to the motion.

To read the full text of this post by Duane Morris attorneys Vijay Bange and Matthew Friedlander, please visit the Duane Morris London Blog.

Considerations of UK Construction Remobilisation, Part 2

Last week we discussed, in light of the encouragement from Robert Jenrick MP (Secretary of State for Housing, Communities and Local Government) for the construction industry to remobilise, the government’s apparent reluctance to provide confidence and clarity for the construction industry in respect of the safe operation of sites.

In the Prime Minister’s address to the nation on 10 May 2020, he re-stated that encouragement for the construction industry, where possible, to return to work.

To read the full text of this post by Duane Morris attorneys Steve Nichol and Matthew Friedlander, please visit the Duane Morris London Blog.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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