Earth, Wind and Fire- Energy and the Green Agenda. The New Industrial Revolution?

By Vijay Bange and Tanya Chadha

Globally, notable incidents of freak weather events giving rise to destruction and death have dominated the news. The increasing frequency of these erratic climate events has undoubtedly raised awareness of global warming and, on a political level, the need for states to move quicker towards green energy and the reduction of carbon emissions. Global warming is an inescapable issue that affects us all and which has forced governments to elevate this to the top of the agenda, filtering down to economic policies that will touch upon most industry sectors.

On 31 October 2021, representatives from over 200 countries are set to descend on the Scottish city of Glasgow for the  United Nations climate change conference; the 26th Conference of the Parties (COP26).  During this global climate summit, world leaders are expected to talk all things climate change.  Commitments have already been made to aggressively tackle global warming and the reduction of carbon emissions.  Energy is therefore likely to be high on the agenda. Continue reading “Earth, Wind and Fire- Energy and the Green Agenda. The New Industrial Revolution?”

Duty to Protect- Public Consultation

By Vijay Bange

Last week marked 20 years of the horrific terror attacks on the Twin Towers in New York. 2017 saw the atrocious attacks at the Manchester Arena, and subsequently Fishmongers’ Hall in London, and sadly there were others. Global events may create yet further security uncertainty and risks from potential terror attacks.

In February this year James Brokenshire, the Security Minister, reiterated the government’s commitment to improving public security, and to action the findings and lessons learned from the ensuing inquiries. The Home Office has commenced a public consultation on the use of a ‘Protect Duty’. In short this will require businesses, public bodies and security firms to consider risks of a terrorist attack and to ensure proportionate and reasonable measures are taken to protect the public. Continue reading “Duty to Protect- Public Consultation”

Fraud and Cryptocurrency – recent developments

We are now starting to see a variety of cryptocurrency related frauds appearing before the English Court. Following the decision in AA v Persons Unknown [2019] EWHC 3556 (Comm) (where an insurer was granted a proprietary injunction as part of its strategy to recover a ransomware payment which had been negotiated and paid in Bitcoin) the English Court has dealt with several cases relating to cryptocurrency. Two of those cases are mentioned in this blog.

Firstly, it is noteworthy that disputes involving cryptoassets require specialist legal assistance. Not only do they require the deploying of specialist third party blockchain tracers, they are almost always multi-jurisdictional. This presents operational challenges which need to be developed and carefully considered as part of the asset recovery strategy. For example, the governing law and jurisdiction of the claim may be unclear, or alternatively interim and final orders may need to be recognised and enforced in other jurisdictions.

Secondly, it is apparent that the English Court has sympathy for victims of fraud in these situations, and is ready and able to assist in the tracing, following and recovery of those assets. Indeed, the nature of these frauds are varied. It is not always the case that the asset which was misappropriated was the cryptocurrency itself, our experience is showing that the conversion of misappropriated funds into cryptocurrency is part of the process of masking the identity of the wrongdoers. Therefore, we expect that cryptocurrency will continue to be used as a vessel to attempt to move misappropriated money beyond the reach of the victim.

Thirdly, the very nature of these claims makes it very challenging to immediately identify the wrongdoer. The gateway for securing freezing orders and related relief against persons unknown (developed in CMOC Sales & Marketing Limited v Persons Unknown & Others [2018] EWHC 2230 (Comm) is now being used to help victims of these frauds.   In cryptocurrency matters, the applicants generally seek injunctions and supporting disclosure orders to locate the wrongdoers and: (1) restrain the assets of the wrongdoers and (2) restrain the traceable proceeds of the cryptoassets that had been removed from the relevant exchange(s). The availability of Norwich Pharmacal Orders and Bankers Trust Orders (in circumstances where the exchange that has the information may be out of the jurisdiction) is a matter that the Court carefully considers.

In Ion Science Ltd v Persons Unknown & Others (unreported), 21 December 2020 (Commercial Court), the Commercial Court granted interim injunctions and a bankers trust order against certain cryptocurrency exchanges following an alleged initial coin offering fraud (whereby approximately BTC valued at around £577,000 was paid to a third party). This was the first case that considered the issue of the lex situs of cryptocurrency (for the purposes of determining jurisdiction and governing law of the claim), and also paved the way for Bankers Trust orders (i.e. orders to obtain confidential information about the customer of a financial institution that has perpetrated a fraud) being granted against exchanges out of the jurisdiction.

In Fetch.AI Limited  & Others v Persons Unknown & Others [2021] EWHC 2254 (Comm), it was alleged that persons unknown were able to access accounts (held with Binance) which contained several different cryptoassets. The wrongdoers then traded the cryptoassets at an undervalue, which caused losses totalling in excess of $2.6m. What is noteworthy here is that part of the claim was framed in breach of confidential information (the confidential information being the private key that controlled the wallet).  In addition, and in considering the categories of persons unknown, the Court was also careful to ensure that innocent receivers of the cryptocurrency were adequately protected. The latter point is something that will undoubtedly be developed (i.e. where a third party alleges that they innocently acquired stolen cryptocurrency) – and it is expected that there will be significant judicial argument on those issues (not necessarily in this case) in due course.

The English Court is very much alive to the new frontier of cryptocurrency disputes and has sympathy for the challenges faced by the victims of fraud in those situations.  We expect that the English Court will continue to support these victims and the creation of new solutions to what are complex and multi-jurisdictional legal problems.

 

“And That’s Another Fine Mess You’ve Gotten Me Into:” Disputes in the Construction, Engineering and Energy Sectors

By Vijay Bange

The timeless catch phrase is of course from the famous comedy duo Oliver Hardy and Stan Laurel. Looking beyond the blame game is important. Problems will inevitably arise with complex large infrastructure projects. Understanding the underlying reasons and what the root causes are will perhaps aid in the process of reducing conflict. Continue reading ““And That’s Another Fine Mess You’ve Gotten Me Into:” Disputes in the Construction, Engineering and Energy Sectors”

Not all Collateral Warranties are Construction Contracts

By Matthew Friedlander and Tanya Chadha

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.

Recently, for example, collateral warranties have proven to be extremely useful for long leaseholders and tenants in private residential developments where cladding and fire safety issues have been discovered.  Where such a warranty exists, leaseholders (as the beneficiaries) have been able in some cases to rely upon collateral warranties as a means of recovering losses, or compelling the original contractors or designers to rectify those fire safety defects in circumstances where the leaseholder was not involved in the original construction of the development.

Continue reading “Not all Collateral Warranties are Construction Contracts”

Bank of England explores impact of climate change on the UK banking sector

On 8 June 2021, the BoE published the “Climate Biennial Exploratory Scenario: Financial risks from Climate Change” (CBES), identifying climate change as a financial risk with a view to exploring its impact on the banking and insurance sectors. In this post we take a look at the CBES and its implications for banks and borrowers.

To read the full text of this blog post by Duane Morris attorneys Drew Salvest, Natalie Stewart and Rebecca Green, please visit the Duane Morris ESG Blog.

Multiplex v Bathgate: Legal Riddles and Unsolvable Problems

Mr Justice Fraser’s decision in Multiplex Construction Europe Ltd v Bathgate Realisation Civil Engineering Ltd and Others is one of the more curious decisions you will ever read.

Not that I would particularly encourage anyone to read it. The case necessitated some pretty comprehensive and in-depth legal analysis that means the judgment runs to some 206, fairly dense, paragraphs, and an Appendix; I would challenge even the most avid consumer of legal treatises to read the whole thing in one sitting without their eyes glazing over at some point. Helpfully, my colleague Vijay Bange has already produced a very useful summary of the decision and its legal implications here.

However, the density and depth of the judgment does not mean it is without interest; far from it. In fact I suspect this case will prove to be one of the more fascinating legal tangles the Courts will be asked to unravel this year. This article looks at some of the more curious aspects of this dispute, away from the key aspects of the case. Continue reading “Multiplex v Bathgate: Legal Riddles and Unsolvable Problems”

The Digital Age Still Needs Infrastructure

I am an unashamedly massive fan of the Back to the Future film franchise. Yes, even the sequels.

One of my favourite lines from the franchise is spoken at the end of the first film and the beginning of the second. Doc, Marty and Jennifer are about to travel to the distant future (2015, to be precise). When Marty points out there might not be enough road to get up to 88 mph, Doc flips down his brushed aluminium shades and intones: “Roads? Where we’re going we don’t need roads.” And the DeLorean flies off to the future thanks to an early 21st century hover conversion.

Brings a smile to my face every time

Continue reading “The Digital Age Still Needs Infrastructure”