The Supreme Court’s decision in Oceanbulk Shipping & Trading SA v TMT Asia Ltd & Ors, in which Berwin Leighton Paisner acted for Oceanbulk, was handed down on 27 October 2010. In a landmark ruling the Supreme Court revisited those instances where without prejudice negotiations may lose their privileged status. The court introduced a new exception to the without prejudice rule, the “interpretation exception”, overturning the previous decision of the Court of Appeal.
Commercial agreements often include obligations to use reasonable endeavours, and variations on that theme. The construction industry is no exception.
False. The recent case of Azimut-Benetti SpA v Darrell Marcus Healey is another example of the courts moving away from the “genuine pre-estimate of loss” test and looking at whether the clause is commercially justifiable.
Legal advice privilege exists so that a client and his solicitor may speak candidly to each other when seeking and providing advice as to what should be done in a relevant legal context. That candour would be impaired if those communications might be disclosable to a third party.
This area of privilege has been undermined in recent years, particularly for in-house lawyers. This post takes a broad look at the ECJ’s judgment in Akzo Nobel, against the backdrop of the judgment in Three Rivers, and considers whether together they represent a judicial trend away from legal advice privilege. Continue reading
On Friday, the latest version of the TCC Guide takes effect. The TCC has used the opportunity to set down a procedure that reflects where it wants to be when it takes its position as part of the new business court in the Rolls Building in 2011.
The Court of Appeal’s decision in Nurdin Jivraj v Sadruddin Hashwani, could have the unexpected consequence of rendering a vast number of arbitration clauses void, thereby undermining London as an international arbitration centre.
This sounds extreme, but is it? Continue reading
Sustainability has been firmly on the agenda for some time now and yet the transition towards sustainable development has been slow. Sustainability is often seen as being about “green buildings”, with a focus on managing environmental impacts, waste and energy cost savings. However, sustainable development is also about recognising that buildings are part of the fabric of society. They have an impact, whether good or bad, on the communities in which they are located and they have an impact on the well-being of those who live and work in them.
The “genuine pre-estimate of loss” test is closely-tied to the liquidated damages clause (also known as LDs or LADs), which is a common feature in construction and engineering contracts. In the wider commercial context, it is part of the test of whether a court will strike down a clause as an unenforceable penalty.
Having been a part of the legal landscape in England, Wales and Scotland for some time, the Scottish Government recently dipped its toe into these previously settled waters and published a consultation on the Penalty Clauses (Scotland) Bill. The Bill has been drafted by the Scottish Law Commission (SLC), in an attempt to address concerns raised in this area of law. Continue reading
What do you do when your contractor is in delay, but a key part of the works is substantially complete and could be used? You don’t have all the technical documents, such as your as-built programmes and operating manuals, and the tests haven’t been fully completed yet. Despite this, the needs of your business are pressurising you to use what is, after all, a substantially ready asset.
Chalbury McCouat International Ltd v PG Foils Ltd shows the English courts’ willingness to support the process of arbitration, where that is what the parties intended. It also reminds us that if the dispute resolution clause is properly thought out in the first place, parties can avoid getting into disputes about dispute resolution.
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