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?”
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”
By Steve Nichol and Tanya Chadha
Cairn Energy’s dispute with the Indian Government has made headlines across the globe. The case serves as a useful reminder to foreign investors of the benefits of using bilateral investment treaties to obtain relief in circumstances where they have been unfairly treated by governments in foreign jurisdictions.
The origins of this dispute lie in a separate, but similar case between Vodafone and the Indian Government, arising out of Vodafone’s purchase of a majority share of a company, Hutchison Whampoa, in 2007. Hutchison owned substantial assets in India, and the Indian Government contended that Vodafone owed capital gains and withholding tax, based on India’s 1961 Income Tax Act. Vodafone disputed the Government’s interpretation of the Act. Continue reading “Cairn Energy v India: A lesson in BIT rights and enforcement”
By Vijay Bange
Following our recent blog concerning the challenges and issues in the construction industry arising post Grenfell and the Dame Hackitt Review, the Government continues with its mission to tackle some root safety concerns. One of the many recommendations made was that more needs to be done to ensure that construction products are robustly tested, certified and labelled, and that there needs to be a more robust regulatory framework to police this. Furthermore, to ensure that there is greater accountability for those manufacturing and /or selling dangerous building products.
The Housing Secretary, Robert Jenrick, announced on 19th January 2021 the establishment and funding of a national regulator working closely with the Building Safety Regulator and trading standards, and indeed other regulators, whose remit would be to ensure that safer materials are used to build homes. The issue is no longer limited just to dangerous cladding and is more wholesale. This was a scathing, and candid, account of the perceived deficiencies in the industry. Separately, the government has also commissioned a panel of experts to look into the fitness of testing regimes for construction products, and tackling abuse of testing products used for construction, and it is anticipated that this review will report its findings this year. Potentially, this too may result in further changes to the relevant regulations. What is evident is that there is a multi-pronged effort to make changes to implement safety concerns post Grenfell, and implement the measures arising from the Dame Hackitt Review.
Continue reading “UK Construction & Engineering: Safer Construction Materials- A New National Regulator”
By Vijay Bange and Tanya Chadha
2020 will be forever synonymous with the global pandemic. The end of the year saw the approval of vaccines and with that a hope to an end, or at least the taming, of the Covid-19 pandemic. Whilst this has dominated the media in 2020, there has been momentum in the press and Parliament about the continuing problem of dangerous cladding.
A summary of the unfolding story board is below.
Continue reading “UK Construction & Engineering: The cladding catastrophe car crash!”
By Vijay Bange
The New Year has been ushered in by an alarming surge in hospitalisations and sadly a dramatic increase in deaths from the ongoing pandemic. The Government was under increasing pressures to take action. Consequently, the Prime Minister has on 3 January announced another national lockdown, with measures which became law on Wednesday 6th January 2021.
Continue reading “UK Construction & Engineering: Another Lockdown”
By Vijay Bange and Tanya Chadha
- Constructive trust and / or Quistclose trust.
Deluxe property Holdings Ltd (a company registered under the laws of the British Virgin Islands) v (1) SCL Construction Limited & (2) HMRC  EWHC 2865 (TCC)
Cash flow is the lifeblood of the construction industry. This phrase, coined by Lord Denning MR, and cited relentlessly in the construction industry still holds true. In times of recession, following the cash and preserving the funds that are in dispute is crucial. There is no point in spending time and money pursuing a dispute to fight over a pot of cash that is at real risk of being dissipated. Continue reading “Follow The Money”
By Vijay Bange
Adjudicators and Arbitrators are occasionally faced with a situation where one of the parties refuses to engage in the process. In such circumstances tribunals are left in a difficult position to ensure fairness and have regard to due process, whilst also giving careful consideration as to whether it is just and appropriate to continue the process. Ultimately, however, the reluctance of one party to engage should not deprive the other of their legal and contractual rights.
A peculiar position came before Mr. Justice Andrew Baker, in Shell Energy Europe Limited and Meta Energia SpA  EWHC 1799. This case concerned the Defendant’s application to set aside a previous order made by Teare J, made under s. 66 of the Arbitration Act 1996, granting the Claimant leave to enforce an award of arbitration dated 4 December 2019. The award in favour of the Claimant was for EUR 19,712,077.20. The seat of the arbitration was London, and it was under the LCIA Rules. The Defendant participated with the arbitration fully until the final stages; however, on 19 September 2019, with a two-day final hearing set for 25-26 September 2019, the Defendant dismissed its solicitors and counsel, on the basis (according to the CEO) that it was not satisfied with the way the legal team had pursued or presented the defence. The next day, the Defendant retained new solicitors, and the arbitrators granted an adjournment of the final hearing to 8-9 October 2019. Continue reading “The reluctant party – failure to participate in final arbitration hearing because of inability to find QC”
By Steve Nichol
As my colleague Vijay Bange commented in his blog post on Tuesday, Boris Johnson has announced £5bn of new funding for building and infrastructure projects in the UK.
This sounds like a lot of money, but in real terms it is not anything like enough to restart the economy in the manner suggested by the Government. In the heady days before COVID-19, Chancellor Rishi Sunak announced new investment into infrastructure in the UK totaling £600bn between now and 2025. By comparison, £5bn is nothing like what is required to “level up” the economy in the way promised by the Chancellor. In his Dudley address, the Prime Minister confirmed that the £5bn promised was an accelerated release of those funds promised by the Chancellor, but it remains to be seen whether that £600bn will ultimately be released. Continue reading “The Prime Minister’s New Deal: Invest More and Invest Quickly”
By Vijay Bange and Matthew Friedlander
Please Sir may I have some more…
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. Continue reading “UK construction & Engineering: Practice and procedure: Pre-action disclosure”