Published on an ad hoc basis, usually when there is a significant event, legislative change or court judgment which we feel is important to update our clients and contacts about.
Bankruptcy in the UAE 23/09/2022 Read more about Bankruptcy in the UAE In this article, we examine preventive composition as means to implement a successful restructuring strategy and related key concepts.
Dispute Resolution
Dubai
Middle East
How deep do you need to dive to mitigate against a FM event? 21/09/2022 Read more about How deep do you need to dive to mitigate against a FM event? The Russian invasion of Ukraine has turned the spotlight onto two particular types of clause in commodities contracts: sanctions and force majeure (“FM”). The avalanche of global sanctions imposed in response to the invasion created huge challenges for commercial parties and many found themselves having to put sanctions related contractual wording to the test as a result.
Commodities
Working Worldwide
Subsidy Control Act 2022: An Update 13/09/2022 Read more about Subsidy Control Act 2022: An Update Following the Subsidy Control Bill 20211 receiving Royal Assent on 28 April 2022, the UK government and Competition and Markets Authority have published draft guidance on the new UK subsidy control regime.
EU, Competition and Trade Regulatory
London
LNG Bunkering: Long term contracts for a transitional fuel 07/09/2022 Read more about LNG Bunkering: Long term contracts for a transitional fuel With the EU and IMO (amongst others) moving full steam ahead with emissions trading schemes, many ship owners are considering dual-fuelled LNG ships. Whilst LNG is often viewed as a ‘transitional fuel’ it still has around 30% to 50% less CO2 and limited sulphur compared to other fossil fuels and therefore may help owners satisfy emissions regulations (and perhaps also their own internal environmental policies).
Shipping
Commodities
Dispute Resolution
Commercial
London
Working Worldwide
Sustainability Series: Part 5 – Inland Waterways 05/09/2022 Read more about Sustainability Series: Part 5 – Inland Waterways Inland waterway transport plays a vital role within the sustainable transport and logistics sector, particularly within the EU. There are over 200 inland ports in Europe with more than 37,000 kilometres of waterways and many of the important European industrial centres can be reached by inland navigation1.
Logistics
SUSTAINABILITY HUB
Sustainability in transport
Energy
Shipping
Corporate
Ports & Terminals
London
Paris
Brussels
Geneva
Piraeus
EU Emissions Trading System: Current status and key issues 26/07/2022 Read more about EU Emissions Trading System: Current status and key issues The planned inclusion of maritime transport in the EU Emissions Trading System is moving forward rapidly,
and the legislative text could be
finalised in Q4 of 2022. As part of the legislative process, both the European Parliament and the European Council have very recently proposed their own respective amendments to the proposals originally put forward by the European Commission back in 2021. In our factsheet, we set out the key issues arising that have the potential to impact all the parties in the physical transport chain, and which could give rise to risks and disputes in the future.
Shipping
Commodities
Dispute Resolution
Logistics
Commercial
International Trade Regulation
London
SUSTAINABILITY HUB
Sustainability in Regulation
Sustainability in transport
Ensuring integrity in the global gold supply chain 21/07/2022 Read more about Ensuring integrity in the global gold supply chain The London Bullion Market Association (LBMA) and the World Gold Council recently announced their collaboration on the new Gold Bar Integrity (GBI) initiative. The GBI initiative aims to monitor the movement of gold through the global supply chain, including provenance and chain of custody.
Commodities
Working Worldwide
SUSTAINABILITY HUB
Karis v Digital CC Management Pty Ltd [2022] FCA 685 15/07/2022 Read more about Karis v Digital CC Management Pty Ltd [2022] FCA 685 The Federal Court of Australia recently granted an anti-suit to restrain the taking of steps in proceedings in the United States District Court in Massachusetts. The application was made by Mr Karis, who had separately commenced proceedings in the Federal Court against two Australian incorporated companies for misleading and deceptive conduct.
Dispute Resolution
Asia Pacific
Melbourne
Sydney
Perth
The Big (Shipping) Short: Recession Proofing Charters 06/07/2022 Read more about The Big (Shipping) Short: Recession Proofing Charters You don’t have to be Christian Bale in The Big Short to see that there is a real possibility of a recession in the near future. Food and energy prices are spiralling, interest rates rising (hitting a 13 year high at 1.25% in the UK on 16 June 2022), and banks are becoming more cautious lenders. This all follows (in part) from the perfect storm of the Russia/Ukraine crisis and the longer-term pandemic effects.
Shipping
Dispute Resolution
Ports and digitalisation: what next? 05/07/2022 Read more about Ports and digitalisation: what next? A look at the forthcoming changes to the IMO Convention on Facilitation of International Maritime Traffic and the legal, operational and technical issues arising from increased digitalisation of ports.
Shipping
Logistics
Ports & Terminals
Digital Trade
London
Singapore
Support your environmental claims: Advertising Standards Authority ruling: Tesco Stores Ltd t/a Tesco 29/06/2022 Read more about Support your environmental claims: Advertising Standards Authority ruling: Tesco Stores Ltd t/a Tesco On 8 June 2022, the Advertising Standards Authority (ASA) handed down a ruling on Tesco Stores Ltd t/a Tesco, in which it decided that Tesco had made unsubstantiated claims that its Plant Chef products were better for the planet than meat-based alternatives. In light of this ruling, we analyse the key considerations for businesses when making environmental claims for their products or services and reflect on the importance of conducting due diligence, holding sufficient evidence to substantiate claims and ensuring that the basis of any environmental claim is made clear.
EU, Competition and Trade Regulatory
Commodities
Commercial
International Trade Regulation
London
Autonomous ships: MASS for the MASSes 20/06/2022 Read more about Autonomous ships: MASS for the MASSes Since our last bulletin in January 2022, further promising developments have taken place around the world in the field of autonomous shipping.1 We have seen an increase in activity in this sector of the maritime industry as various Maritime Autonomous Surface Ships (MASS) projects continue to come online and are fast becoming more widely adopted into mainstream shipping. Competition among players in this field is becoming fierce, with new developments being reported on a nearly daily basis.
Shipping
Logistics
Ports & Terminals
Digital Trade
London
Comprehensively Yachts - HFW Yachting Industry Briefing, June 2022 16/06/2022 Read more about Comprehensively Yachts - HFW Yachting Industry Briefing, June 2022 In this edition of Comprehensively Yachts we focus on some of the key issues affecting the yachting industry including the burning issue of Russian sanctions, an analysis of the new MYBA memorandum of agreement, an update on the effect of Brexit on insurances, insight into new Brazilian tax rules and the establishment of a new international shipping registry for the US.
Shipping
Insurance & Reinsurance
London
Latin America
USA & Canada
Sustainability: Developments in Agriculture 01/06/2022 Read more about Sustainability: Developments in Agriculture The UN IPCC Report 2022 on the Mitigation of Climate Change has reemphasised the importance of rapid climate reform to reach net zero emissions by 2050. Below we outline some of the key developments affecting the agriculture sector in Australia and globally.
Commodities
Australia
SUSTAINABILITY HUB
CBP issues key ruling on U.S. offshore wind operations 31/05/2022 Read more about CBP issues key ruling on U.S. offshore wind operations Significant new ruling from the U.S. Customs and Border Protection provides Jones Act guidance for U.S. offshore wind energy projects.
Energy
Shipping
Projects
Logistics
Commercial
Ports & Terminals
Oil and Gas
Construction
Houston
USA & Canada
SUSTAINABILITY HUB
Sustainability in Energy Transition
Sustainability in Regulation
Sustainability in infrastructure and construction
Sustainability Series: Part 4 – Air Freight 16/05/2022 Read more about Sustainability Series: Part 4 – Air Freight Over the last few weeks, we have explored the way that road, rail and sea freight operators are gearing up to tackle climate change. We turn now to the air freight sector, which faces some unique challenges on the path to net zero.
Logistics
Aerospace
SUSTAINABILITY HUB
Sustainability in transport
Energy
London
Brexit dividend - Free Trade Agreement with India? 12/05/2022 Read more about Brexit dividend - Free Trade Agreement with India? Negotiations for a Free Trade Agreement between the UK and India are currently under way, with negotiations expected to conclude by the end of 2022 and potentially by October 2022. In light of the UK’s exit from the European Union (Brexit), we analyse the prospects for UK-India trade and identify key considerations for Indian and UK businesses.
International Trade Regulation
Paris
Indian Sub-continent
Electronic trading documents: possession is 9/10ths of the law 20/04/2022 Read more about Electronic trading documents: possession is 9/10ths of the law The UK Law Commission has published its much anticipated report and draft Bill on electronic trade documents. At just seven sections long, the Bill is very short. However if it becomes law, it could herald a seismic shift in international trade because it will enable trade documents in electronic form to be used in the same way as their paper equivalents under English law.
Commodities
Finance
Digital Trade
London
Working Worldwide
GAFTA: Assessment of damages for non-acceptance under the default clause 17/03/2022 Read more about GAFTA: Assessment of damages for non-acceptance under the default clause The GAFTA Default Clause governs what is the measure of damages payable in default of fulfilment of the contract by either party. The recent decision in Sharp Corp Ltd v. Viterra BV [2022] EWHC 354 (Comm) concerned an appeal to the High Court on the GAFTA Board of Appeal's decision on the quantum of damages payable under the Default Clause in GAFTA Contract No. 24. It was held that the "actual or estimated value of the goods, on the date of default" is to be assessed on the basis of a notional substitute contract on the same terms, rather than the value of the relevant goods in the market at the discharge port.
Commodities
What the evolving landscape of ESG means for fraud and insolvency practitioners 07/03/2022 Read more about What the evolving landscape of ESG means for fraud and insolvency practitioners The recognition of ESG issues, and the establishment of a coherent ESG strategy, are increasingly important for businesses and government bodies alike. Reputational considerations and the threat of court litigation will require organisations to embed ESG into their operations in order to survive and stay competitive. However, a failure to consider ESG issues may lead to the restructuring or demise of a company. And the rise of ESG on the corporate agenda and the pressure that entails will mean that instances of ESG-related fraud will inevitably increase.
Commodities
Construction
Aerospace
Energy
Insurance & Reinsurance
Shipping
EU, Competition and Trade Regulatory
Corporate
Dispute Resolution
Finance
Projects
Financial Institutions
Logistics
Mining
Ports & Terminals
Financial Services Regulation
Commercial
International Trade Regulation
Employment
Fraud and Insolvency
Oil and Gas
Government Services
Data Protection
Digital Trade
Cyber Security
Global Investigations and Enforcement
London
Houston
SUSTAINABILITY HUB
Sanctions de l'UE en lien avec la situation en Ukraine (sythese au 28 Fevrier 2022) 07/03/2022 Read more about Sanctions de l'UE en lien avec la situation en Ukraine (sythese au 28 Fevrier 2022) A la suite de la décision russe de reconnaître comme des entités indépendantes les zones des oblasts de Donetsk et de Louhansk et d'attaquer unilatéralement l'Ukraine, l'Union européenne a institué de nouvelles mesures restrictives les 23, 25 et 28 février 2022, pour renforcer l'arsenal de sanctions contre la Russie.
EU, Competition and Trade Regulatory
International Trade Regulation
Aerospace
Construction
Commodities
Energy
Insurance & Reinsurance
Shipping
Finance
Financial Institutions
Logistics
Commercial
Oil and Gas
Paris
Eastern Europe & Russia
The renewable energy CfD and international trade: is the supply chain plan the weakest link? 02/03/2022 Read more about The renewable energy CfD and international trade: is the supply chain plan the weakest link? The media coverage of the latest UK allocation round for renewables contracts for differences (CfDs) takes for granted that a subsidy is involved, as do government statements. But these statements also publicise the record-low prices and the fact that the scheme protects (rather than is funded by) the UK energy consumer.
Energy
EU, Competition and Trade Regulatory
Finance
Projects
Commercial
International Trade Regulation
London
SUSTAINABILITY HUB
Sustainability in Regulation
Sustainability in Energy Transition
Sustainability in Finance
Sustainability in infrastructure and construction
UK Aviation Consumer Policy Reform: What airlines need to know 01/03/2022 Read more about UK Aviation Consumer Policy Reform: What airlines need to know On 31 January 2022 the UK Government opened a consultation1 entitled “Reforming aviation consumer policy: protecting air passenger rights”. This briefing sets out its key points and comments on how airlines might wish to consider responding.
Aerospace
Dispute Resolution
London
Paris
Brussels
Dubai
Hong Kong
Singapore
Houston
Working Worldwide
Africa
Asia Pacific
Eastern Europe & Russia
Indian Sub-continent
Latin America
Middle East
Scandinavia
USA & Canada
Australia
Has Putin torn up your contracts? 24/02/2022 Read more about Has Putin torn up your contracts?
Matters have been moving at pace in the Ukraine in recent weeks, culminating in the movement of Russian troops into Donetsk and Luhansk on 22 February 2022. Whilst the conflict does not, at the moment, directly involve the USA or other western powers, there has certainly already been support behind the scenes and it is unknown how matters might develop. A direct declaration of war by a Western power against Russia is unlikely, but there are enough examples over the years of countries having "undeclared" wars i.e. wars without a formal declaration. If the situation continues to deteriorate in the coming weeks, greater involvement of the UN, NATO or a coalition of western forces acting outside of the UN or NATO may well be within the realms of possibility. If this were to happen, what does this mean for your contracts?
Shipping
Commodities
Insurance & Reinsurance
EU, Competition and Trade Regulatory
Logistics
Commercial
The New Commercial Court Guide 09/02/2022 Read more about The New Commercial Court Guide This briefing examines the changes brought in by the 11th edition of the English Admiralty and Commercial Court Guide, which has just been published, with a focus on the changes to the Commercial Court practice.
Dispute Resolution
London
LITIGATION HUB
Automated Vehicles - No time to be asleep at the wheel 01/02/2022 Read more about Automated Vehicles - No time to be asleep at the wheel On 26 January 2022, the Law Commission of England and Wales, and the Scottish Law Commission (together, the 'Commissions') published a joint report (the 'Report') on their proposed legal reforms required for the safe and responsible introduction of automated vehicles ('AVs') on UK roads. The Report is the result of a wide-ranging three round consultation process, incorporating feedback from hundreds of relevant stakeholders.
Energy
Logistics
London
Putin in the sanctions cross-hair 28/01/2022 Read more about Putin in the sanctions cross-hair As troops amass on Ukraine's borders, Western powers are attempting to change Russia's calculus of risk. Boris Johnson has threatened 'unprecedented sanctions', the EU has warned of 'massive consequences and severe costs', while the US has committed to 'respond decisively.'
Aerospace
Construction
Commodities
Energy
Insurance & Reinsurance
Shipping
EU, Competition and Trade Regulatory
Projects
Mining
International Trade Regulation
Oil and Gas
London
Geneva
Houston
Eastern Europe & Russia
Sanctions against Russia: are you prepared? 25/01/2022 Read more about Sanctions against Russia: are you prepared? The escalating situation on the border between Ukraine and Russia has already led to calls for international trade sanctions to be imposed. So what might those sanctions look like and how can businesses prepare?
International Trade Regulation
Aerospace
Construction
Commodities
Energy
Insurance & Reinsurance
Shipping
EU, Competition and Trade Regulatory
Projects
Mining
Oil and Gas
London
Geneva
Houston
Eastern Europe & Russia
Sustainability Series: Part 1 – Road Freight Transport 18/01/2022 Read more about Sustainability Series: Part 1 – Road Freight Transport As the world is facing a global climate crisis pressure is building on industries to do what they can to reduce emissions1. Today, the transport sector accounts for around 21% of global greenhouse gas emissions, 64% of all global oil consumption, 27% of all energy use and 23% of the world’s energy related carbon dioxide emissions2.
Logistics
Sustainability in transport
SUSTAINABILITY HUB
Energy
Spire v RSA - Round 4: Court of Appeal considers aggregation wording 18/01/2022 Read more about Spire v RSA - Round 4: Court of Appeal considers aggregation wording
The Court of Appeal has given judgment on the wording of an aggregation clause found commonly in many types of policy wordings (Spire Healthcare Limited v Royal & Sun Alliance Insurance Limited). The effect of the clause was to aggregate "all claims consequent on or attributable to one source or original cause". The judgment confirms existing case law that this wording will aggregate claims on a wide basis, and permits a broad search for a unifying factor.
Insurance & Reinsurance
London
Unfair prejudice petitions - Its not personal 13/01/2022 Read more about Unfair prejudice petitions - Its not personal In a recent judgment, the Court of Appeal has confirmed that, for personal actions to be pleaded in support of an unfair prejudice petition, there must be a causal link between these actions and the company's affairs. The judgment, from England and Wales's second highest court, provides important guidance to potential claimants on the scope of unfair prejudice petitions
Commodities
Corporate
Dispute Resolution
London
LITIGATION HUB
Comprehensively Yachts - HFW Yachting Industry Briefing, December 2021 20/12/2021 Read more about Comprehensively Yachts - HFW Yachting Industry Briefing, December 2021 The yachting industry continues to boom on all fronts and the volume of new building contracts, design contracts and sale and purchase transactions handled by the HFW yacht team shows no sign of abatement. We have been involved in a significant proportion of the largest new building and sale and purchase projects to come to market in 2021 and, though there are concerns in some quarters as to the sustainability of the current market, for now at least it remains all hands on deck to service demand.
Shipping
SUSTAINABILITY HUB
Sustainability in transport
Monaco
London
Paris
Piraeus
Dubai
Hong Kong
Shanghai
Sydney
Melbourne
Singapore
Middle East
Asia Pacific
Built in the USA? Coast Guard Issues Determination on US Built Offshore Wind Vessel 26/11/2021 Read more about Built in the USA? Coast Guard Issues Determination on US Built Offshore Wind Vessel Significant expansion of the offshore wind energy industry in the United States is expected to fuel a variety of commercial sectors. The U.S. shipbuilding industry is a key sector that is poised for growth due to Jones Act requirements that coastwise qualified vessels be built in a U.S. shipyard. To meet the anticipated requirements for installing and servicing U.S. offshore wind farms, coastwise qualified vessels will be needed. A recent decision by the U.S. Coast Guard's National Vessel Documentation Center (NVDC) provides insight on how stakeholders can comply with the Jones Act's U.S. built requirement.
Shipping
Houston
Quincecare duty applied by the DIFC Courts 25/11/2021 Read more about Quincecare duty applied by the DIFC Courts Justin Whelan (Partner, Abu Dhabi) and Thomas Neighbour (Senior Associate, Dubai) recently successfully acted for a claimant company before the DIFC Courts, in what we believe is the first DIFC judgment on these points, the court examined both business email compromise and Quincecare for the first time. The judgment will be of interest to financial institutions and their customers.
Cyber Security
Dispute Resolution
Fraud and Insolvency
Dubai
Abu Dhabi
Middle East
COP 26: Article 6 and its impact on voluntary markets 24/11/2021 Read more about COP 26: Article 6 and its impact on voluntary markets After 5 years of trying, COP26 delivered the final piece of the jigsaw for the operationalisation of the Paris Agreement. The final verdict requires for corresponding adjustments to be applied regardless of whether an abatement activity falls inside a country’s national determined contribution (NDC) or outside of its NDC, for both Article 6.2 and Article 6.4 transactions. However, the Paris Agreement does not mandate for voluntary carbon units issued by voluntary standards to be subject to a corresponding adjustment.
Commodities
Energy
Finance
SUSTAINABILITY HUB
New Director Identification Number Requirements 16/11/2021 Read more about New Director Identification Number Requirements
From 1 November 2021, all Australian Directors will now need to apply for a Director Identification Number (DIN). This applies if you're a director, or alternative director acting in that capacity, of a company, registered Australian body, registered foreign company under the Corporations Act or Aboriginal and Torres Strait Islander corporation registered under the CATSI Act.
Corporate
Australia
Asia Pacific
Lack of enforceability: a freight-ening prospect 10/11/2021 Read more about Lack of enforceability: a freight-ening prospect The relationship between Shippers and Carriers when it comes to sea freight agreements has often been adversarial. The lack of a standardised, reliably enforceable sea freight agreement, which does not rely on the honesty of both parties, has left a gap that has often been filled by inadequately drafted agreements.
Logistics
Shipping
Energy
London
COP 26: Article 6, Nationalisation Risk and what it means for voluntary markets 27/10/2021 Read more about COP 26: Article 6, Nationalisation Risk and what it means for voluntary markets Will COP26 finally deliver Article 61? Without it, the Paris Agreement is not fully operational. Article 6 is an important tool to enable countries to raise their Paris Agreement ambitions through market mechanisms and engage the private sector. If the next COP in Glasgow in November 2021 (COP26), fails to deliver on these long awaited Article 6 Guidelines, this meeting will be likely be considered a resounding failure. Why is this?
Commodities
Energy
Singapore
Africa
Asia Pacific
Eastern Europe & Russia
Indian Sub-continent
Latin America
Middle East
Scandinavia
USA & Canada
Australia
SUSTAINABILITY HUB
Teamwork in digitalisation: Avoiding an intellectual property headache 15/10/2021 Read more about Teamwork in digitalisation: Avoiding an intellectual property headache Collaboration is fundamental to energy projects, but particular care is needed where digitalisation is concerned. Intellectual property rights issues may arise from the early brainstorming stage through to implementation and even afterwards. These need consideration from a legal and contractual perspective.
Energy
Projects
Commercial
Oil and Gas
London
Paris
Dubai
Shanghai
Hong Kong
Singapore
Perth
Houston
Africa
Asia Pacific
Eastern Europe & Russia
Indian Sub-continent
Latin America
Middle East
Scandinavia
USA & Canada
Australia
The voyage to net-zero: what role can ports play? 05/10/2021 Read more about The voyage to net-zero: what role can ports play? With increasing pressure for the shipping and logistics industries to implement low or net zero carbon operations, ports are emerging as key facilitators of the drive to sustainability. This article looks at some of the initiatives which key global ports are implementing in their move towards decarbonisation and the overall trends that are emerging.
Shipping
Logistics
Ports & Terminals
SUSTAINABILITY HUB
Sustainability in transport
Sustainability in infrastructure and construction
Singapore
Hong Kong
Asia Pacific
Time to ask questions - FPSO Digitalisation 27/09/2021 Read more about Time to ask questions - FPSO Digitalisation Floating production storage and offloading ("FPSO") digitalisation promises more reliable data, new key performance indicators and near real time operation efficiency. What this should mean for the future is limitless: new designs and philosophies for operations and maintenance all resulting in improved asset performance. With much more to come, it is now time to ask questions on how all this data will be used.
Energy
Projects
Oil and Gas
Dispute Resolution
Singapore
Asia Pacific
Update on litigation funding regulation in Australia 20/09/2021 Read more about Update on litigation funding regulation in Australia In my article on 12 June 2020, I referred to the Government's plans to require litigation funders to obtain an Australian Financial Services License (AFSL) and to be subject to the managed investment scheme regulatory regime. I supported the reforms as a means of increasing the transparency of litigation funding arrangements, which could potentially alleviate the distrust of funders by corporates and insurers in Australia. So what has happened since then? The short answer is "a lot".
Insurance & Reinsurance
Dispute Resolution
Australia
Melbourne
Sydney
Perth
Arbitration Insights: Australia. Med-Arb 27/08/2021 Read more about Arbitration Insights: Australia. Med-Arb Mediation and arbitration are commonly used dispute resolution methods. Both processes have their pros and cons and this article considers whether it is possible to combine the advantages of both in a “Med-Arb” process.
Construction
Dispute Resolution
Australia
Melbourne
Perth
Sydney
Shanghai Shipyard Co Ltd v Reignwood International Investment (Group) Company Limited [2021] EWCA CIV 1147 12/08/2021 Read more about Shanghai Shipyard Co Ltd v Reignwood International Investment (Group) Company Limited [2021] EWCA CIV 1147 On 23 July 2021 , the Court of Appeal (Sir Geoffrey Vos, Lord Justice Baker and Lord Justice Popplewell) handed down a unanimous judgment in an appeal by Shanghai Shipyard Co Ltd (Shanghai Shipyard) to a first instance decision by Knowles J. The first instance decision followed a preliminary issues trial concerning the proper characterisation of a shipbuilding performance guarantee issued by the parent company of the buyer, Reignwood International Investment (Group) Company Limited (Reignwood). The performance guarantee in this case was for the final instalment under the shipbuilding contract of US$170M, which the buyer failed to pay.
Shipping
Dispute Resolution
Shanghai
Asia Pacific
Keeping up with U.S. Offshore Wind 02/08/2021 Read more about Keeping up with U.S. Offshore Wind The pace of U.S. offshore wind activity is racing forward. The first half of 2021 has seen significant developments at the state and federal levels, which require a comprehensive understanding of the regulatory and legal playing field that apply to offshore projects in the U.S., in particular the Jones Act.
Shipping
Energy
Projects
Logistics
Commercial
Houston
USA & Canada
SUSTAINABILITY HUB
Sustainability in Energy Transition
Sustainability in infrastructure and construction
Sustainability in Regulation
London
Digital transformation of operations but not contracts? 29/07/2021 Read more about Digital transformation of operations but not contracts? The industry press is full of accounts of digitalisation in the offshore oil and gas industry. So it is surprising that contracts do not reflect this. This may be because collaborative working groups of technical, information technology and legal specialists are uncommon. However, they are necessary, so that rights and responsibilities in the digital landscape are clear.
Energy
Projects
Commercial
Oil and Gas
London
Paris
Dubai
Singapore
Shanghai
Hong Kong
Perth
Houston
Working Worldwide
Africa
Asia Pacific
Eastern Europe & Russia
Indian Sub-continent
Latin America
Middle East
Scandinavia
USA & Canada
Australia
Comprehensively Yachts - HFW Yachting Industry Briefing, July 2021 15/07/2021 Read more about Comprehensively Yachts - HFW Yachting Industry Briefing, July 2021 Though the 2021 Mediterranean yacht season may have been a little late in its start, from the volume of new build and sale and purchase transactions we have been engaged with this year, it appears that the idea of yacht ownership is as popular, if not even more popular, than ever. Whether you are new to the industry or an old hand there will be something of interest to you in the following compilation of topical and legal developments to affect the yachting industry.
Shipping
Employment
London
Paris
Monaco
Africa
Sydney
Melbourne
Perth
Asia Pacific
EU adopts adequacy decisions on transfers of personal data to UK 06/07/2021 Read more about EU adopts adequacy decisions on transfers of personal data to UK In this briefing, we consider the recently published EU adequacy decisions on personal data transfers from the EU to the UK (with a focus on the decision under the EU GDPR), as well as the EDPB’s final recommendations on supplementary measures for personal data transfers to third countries.
Data Protection
London
Paris
Brussels
Piraeus
Geneva
Dubai
Shanghai
Hong Kong
Singapore
Melbourne
Sydney
Perth
Riyadh
Abu Dhabi
Kuwait
Houston
Monaco
Time to open skies: ASEAN and the EU agree to historic agreement 18/06/2021 Read more about Time to open skies: ASEAN and the EU agree to historic agreement On 2 June 2021, the Association of Southeast Asian Nations (ASEAN) and the European Union (EU) and its Member States concluded negotiations on the world's first bloc-to-bloc air transport agreement. In this briefing, we look at what the ASEAN-EU Comprehensive Air Transport Agreement (AE CATA) means for the two blocs as well as the potential impact on freedoms of the air for the carriers involved.
Aerospace
EU, Competition and Trade Regulatory
International Trade Regulation
London
Paris
Brussels
Singapore
Asia Pacific
GDPR turns three years old - Our top tips moving forward 17/06/2021 Read more about GDPR turns three years old - Our top tips moving forward The General Data Protection Regulation (GDPR) entered into force three years ago. Looking back we consider how the GDPR has shaped data protection regimes worldwide and shown its teeth by imposing large and often high profile fines. Looking forward, we set out our top tips to maintain compliance and report on the European Commission’s adoption of new Standard Contractual Clauses (SCCs), respectively for use between controllers and processors in the EEA and for the transfer of personal data to third countries outside the EEA.
Data Protection
London
Paris
Brussels
Geneva
Piraeus
Dubai
Shanghai
Hong Kong
Singapore
Melbourne
Sydney
Perth
Riyadh
Abu Dhabi
Kuwait
Houston
Monaco
Shipping
Unjust Enrichment by Prepayment - A Recent English Decision 16/06/2021 Read more about Unjust Enrichment by Prepayment - A Recent English Decision BP Oil International Ltd v Vega Petroleum Ltd and another involved successful restitutionary claims for millions of US dollars that BP Oil International Ltd (BPOI) had paid to the Defendants for crude oil that was never delivered. The Commercial Court's judgment contains helpful analysis of the law on restitution for total failure of consideration (now more commonly referred to as failure of basis).
Commodities
Energy
Commercial
Dispute Resolution
Electronic Bills of lading - is this time different? 10/06/2021 Read more about Electronic Bills of lading - is this time different? Digitisation is the buzzword of the year for those in the trade industry. Following several large-scale frauds in the trade finance space, there is growing concern over the authenticity (and therefore, the value) of traditional paper bills of lading as a form of security. Further, in light of ongoing disruption to the trade cycle and the movement of documents due to the impact of Covid-19 restrictions across different jurisdictions, the digitisation of physical shipping documents is becoming much more significant.
Commodities
Shipping
Logistics
Commercial
National Security and Investment Act 2021 01/06/2021 Read more about National Security and Investment Act 2021 The National Security and Investment Act 2021 (the ‘Act’) received Royal Assent on 29 April 2021, granting the UK Government new powers to scrutinise investments on national security grounds. The Act is expected to come into force by the end of 2021. In this briefing we recap the Act, review its entry into force including retrospective provisions and consider the Government’s proposed revised definitions of three of the Act’s 17 sectors for mandatory notification: transport, energy and defence.
London
Aerospace
Shipping
Energy
Oil and Gas
International Trade Regulation
EU, Competition and Trade Regulatory
RESTRUCTURING HUB
HFW Freeports Series | Freeports: Know Your Customs 27/05/2021 Read more about HFW Freeports Series | Freeports: Know Your Customs In our last article we introduced the UK's new Freeports, due to be developed at eight sites in England (East Midlands Airport, Felixstowe & Harwich, the Humber region, Liverpool City, Plymouth, Solent, the Thames and Teeside).
London
Aerospace
Construction
Commodities
Energy
Shipping
EU, Competition and Trade Regulatory
Corporate
Logistics
Ports & Terminals
Government Services
International Trade Regulation
HFW Freeports Series | Freeports: Back in business? 20/05/2021 Read more about HFW Freeports Series | Freeports: Back in business? Over the coming weeks, HFW will be launching a series of articles on the reintroduction of Freeports in the UK. We'll be looking at the implications for businesses operating within these Freeports, focusing on a number of industry sectors including Shipping, Construction, Energy & Resources, Aviation and Commodities.
London
Aerospace
Construction
Energy
Commodities
Shipping
EU, Competition and Trade Regulatory
Corporate
Ports & Terminals
Logistics
International Trade Regulation
Government Services
What happens when the wheels come off in a commodities supercycle? 18/05/2021 Read more about What happens when the wheels come off in a commodities supercycle? The press is full of speculation as to whether we are entering a commodities “supercycle”, a period when the market sees prices rise higher than the long-term trend for more than ten years, followed by a downturn of similar length as supply catches up with demand. In this briefing, we consider what commodities traders should bear in mind as they negotiate contracts now, in the midst of a boom, so that they are better protected when demand and prices fall.
Commodities
Energy
Mining
Commercial
London
Geneva
And the award should go to… 06/04/2021 Read more about And the award should go to… In such a strange year, and in light of the Oscars® stepping away from having a single host, we think it is only appropriate to recognise not one, but two contributions during these challenging times: the evolution of the common law in the hands of the UK Supreme Court and the land of Zoom – even if the Oscars® don’t wish to utilise the latter.
Dispute Resolution
London
Working Worldwide
Maritime Boundaries: Outlook in 2021 26/03/2021 Read more about Maritime Boundaries: Outlook in 2021 As the dust settles on 2020 we highlight two current issues in the sphere of maritime boundaries as examples as to how these issues and disputes may impact on businesses operating or considering operating in maritime areas subject to boundary disputes.
Shipping
London
Contract Certainty and Policy Renewals: Underwriters' reliance on brokers' 11/03/2021 Read more about Contract Certainty and Policy Renewals: Underwriters' reliance on brokers' In a recent article, "Insurance brokers' E&O duties regarding unusual policy terms – is there a duty to nanny?"1 we discussed the insured bank's claim in negligence against its insurance broker ("Edge") in ABN AMRO Bank –v-- [Underwriters] and Edge Brokers (London) [2021] EWHC 442 (Comm), a recent English Commercial Court decision which raises some novel arguments about the duty (if any) to disclose unusual policy terms to Underwriters.
Insurance & Reinsurance
Dispute Resolution
London
Rare success in challenging arbitration awards 05/03/2021 Read more about Rare success in challenging arbitration awards Following a successful challenge pursuant to section 67 of the Arbitration Act 1996 (the 1996 Act), the English High Court has set aside two GAFTA awards on the basis that there was no arbitration agreement between the parties.1 In doing so, the Court rejected the argument that a GAFTA arbitration agreement was implied into the alleged contract by trade custom or usage.
Commodities
Dispute Resolution
Autonomous Ships: MASS Mutations 10/02/2021 Read more about Autonomous Ships: MASS Mutations Our bulletin published in September
2020 last year
1 considered the developments of Maritime Autonomous Surface Ships (MASS) as the shipping industry continued to suffer the impacts of the global spread of coronavirus disease 2019 (COVID-19).
Shipping
London
SUSTAINABILITY HUB
Sustainability in transport
Cyber Owl
English high court limits quincecare duty in app fraud cases 04/02/2021 Read more about English high court limits quincecare duty in app fraud cases In its recent judgment, the English High Court has confirmed that a bank’s Quincecare duty (i.e. the duty to act with reasonable care and skill when executing a customer’s payment instructions) does not extend to authorised push payment (“APP”) frauds involving individual customers. The ruling, which reflects the growing judicial trend in APP frauds, and on which we have previously written1, has important ramifications for individual and corporate customers alike.
Dispute Resolution
Fraud and Insolvency
London
Increase in Shipping Rates and Legal Issues Facing Shippers 01/02/2021 Read more about Increase in Shipping Rates and Legal Issues Facing Shippers The knock-on effects of the Covid-19 pandemic are continuing to impact the global shipping market, with a shortage of containers coupled with a rebound in demand for goods driving freight costs to unprecedented levels. In this article we consider the root causes of the increase in freight rates and some of the legal issues that shippers are now having to adjust to.
Shipping
Logistics
Ports & Terminals
International Trade Regulation
“UK261”? Passenger rights after the Brexit transition period 15/01/2021 Read more about “UK261”? Passenger rights after the Brexit transition period Although the UK formally left the European Union a year ago, air carriers will know that European Union Regulation (EC) 261/2004 on denied boarding, cancellation and long delay (EU261) has continued to have force in the UK throughout 2020 as though Brexit had never happened. This is because the UK has been in a transition period agreed with the EU as part of the terms of withdrawal, during which EU law has continued to apply.
Aerospace
London
Cyber Risk Adaptability and Responsibility 15/12/2020 Read more about Cyber Risk Adaptability and Responsibility For years, service providers to the shipping industry have warned of the industry’s increased reliance on cyber technologies and their potential vulnerabilities. Yet, until recently, this perceived threat had not been addressed by lawmakers and, to some degree, operators.
Shipping
Cyber Security
Cyber Owl
Workplace Relations Update (Australia), December 2020 11/12/2020 Read more about Workplace Relations Update (Australia), December 2020 Look out for some big changes to the Fair Work Act 2009 (Cth) in 2021.On 9 December 2020, the Coalition Government introduced the much anticipated Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020. The Bill must now make its way through the Parliament, and there might be some tweaks in the process, but for now, the six most important things for employers to know about the Bill are –
Employment
Australia
Asia Pacific
Collateral management and stock monitoring agreements - The cast iron solution for lenders? 10/12/2020 Read more about Collateral management and stock monitoring agreements - The cast iron solution for lenders? 2020 has been a year of upheaval and no less so than in transactional commodity finance, which has witnessed a series of major frauds. The significant losses suffered have caused some lenders to exit the sector completely and others to refocus on specific clients or sectors while tightening their KYC (know your client) and KYT (know your transaction) procedures. In this article we re-examine two important tools available to a lender to mitigate the risks associated with inventory financing: collateral management agreements (CMAs) and stock monitoring agreements (SMAs).
Commodities
Geneva
Seafarers' Continuous Service – Ships Calling At Australian Ports - Update 20/11/2020 Read more about Seafarers' Continuous Service – Ships Calling At Australian Ports - Update
In a briefing in October 2020, we set out AMSA's special extension to the maximum period of time that seafarers could serve on board ships calling Australian ports1. In short, due to the unique circumstances facing international shipping during the COVID-19 pandemic, AMSA extended the maximum period of continuous service from 11 to 14 months. Accompanying this change was a framework for closer scrutiny of seafarer workplace arrangements and repatriation plans should the period of continuous service be extended past 11 months.
Shipping
Employment
Australia
Asia Pacific
Eligible for ship leasing tax concessions in Hong Kong? Check here. 12/11/2020 Read more about Eligible for ship leasing tax concessions in Hong Kong? Check here. On 19 June 2020, the Inland Revenue (Amendment) (Ship Leasing Tax Concessions) Ordinance 2020 introduced a concessionary profit tax regime for ship leasing businesses. While the scheme is now more familiar, it is not without its complexities. Are you clear on if/how you can benefit? This article aims to provide some practical assistance by setting out various questionnaires to guide an interested corporation.
Shipping
Hong Kong
Asia Pacific
Responsible business, sustainable finance and ESG 21/10/2020 Read more about Responsible business, sustainable finance and ESG Over the past few years, environmental protection and human rights have moved centre stage in political and economic arenas. The development of a business market which is sensitive to both human rights and impact on the environment is now a recognised objective at all levels, across sectors and institutions.
Commodities
Geneva
Finance
SUSTAINABILITY HUB
Sustainability in Finance
Arbitration Insights: Australia. Drafting Arbitration Clauses 16/10/2020 Read more about Arbitration Insights: Australia. Drafting Arbitration Clauses The second briefing in our Arbitration Insights series provides a simple guide to drafting arbitration clauses. Arbitration clauses are often the last clauses to be negotiated once all the other terms are agreed. Drafted at sunset, negotiators are both tired and pleased that the substantive terms are agreed and ultimately would prefer to take in the view, than continue negotiations.
Dispute Resolution
Australia
Asia Pacific
ESG at the LME 16/10/2020 Read more about ESG at the LME In August 2020, the London Metal Exchange (LME) issued a discussion paper on "LME Sustainability"1, a new and wide-ranging initiative proposing, among other things, new contracts and a new spot trading platform. According to the exchange, LME Sustainability builds upon the success of its responsible sourcing policy2 (LME Responsible Sourcing), which was rolled out in October 2019.
Commodities
Seafarers' Continuous Service – Ships Calling Australian Ports 08/10/2020 Read more about Seafarers' Continuous Service – Ships Calling Australian Ports We continue to see ships calling at Australian ports with crew on board that have served lengthy periods at sea, in some cases, seafarer contracts have been extend well past 12 months' continuous service on board. The issue of prolonged time at sea, materially exacerbated by COVID-19 travel restrictions, has not escaped the vigilant attention of the Australian Maritime Safety Authority (AMSA).
Shipping
Australia
Asia Pacific
Ports & Terminals
Autonomous Ships: A Pandemic Vaccine? 30/09/2020 Read more about Autonomous Ships: A Pandemic Vaccine? Since our article in January of this year1, we have been gripped by the COVID-19 global pandemic. Despite this there have been a number of developments in the autonomous vessel space. In this briefing we discuss the impact of the pandemic on shipping and the opportunities it presents for Maritime Autonomous Surface Ships (MASS), the Maritime Autonomous Systems Regulatory Conference (MASRC), as well as some of the more recent developments in relation to MASS, such as data collection and sharing.
Shipping
Logistics
SUSTAINABILITY HUB
Sustainability in transport
Cyber Owl
In Memory of Justice Ruth Bader Ginsburg A Champion for Equality 29/09/2020 Read more about In Memory of Justice Ruth Bader Ginsburg A Champion for Equality U.S. Supreme Court Justice Ruth Bader Ginsburg, the second woman to serve on the nation’s highest court, died of pancreatic cancer at the age of 87. Ginsburg spent a lifetime flourishing in the face of adversity and doubt. She was a legal, cultural and feminist icon. In her 80’s, she became known as the “Notorious RBG.” While we mourn this tremendous loss, we honor her as an unwavering pioneer for gender equality.
USA & Canada
Brexit and REACH: What businesses need to know 24/09/2020 Read more about Brexit and REACH: What businesses need to know The end of the Brexit transition period on 31 December 2020 is fast approaching. A ‘no-deal’ scenario – that is, no agreement between the UK and EU on trade and other matters – looks increasingly possible. What does this mean for chemicals regulation in the UK and EEA and what should businesses be doing now to protect themselves?
Commodities
International Trade Regulation
Termination: Contractual Rights to Terminate Curtailed 21/08/2020 Read more about Termination: Contractual Rights to Terminate Curtailed New legislation has been introduced in the UK which restricts the rights of parties to construction contracts to terminate or even suspend work. This means that even if your contract says you can terminate or suspend – for example, for non-payment – you may not in the future be able to exercise this right. These reforms are likely to lead to significant changes to how parties operate their contracts and credit lines.
Construction
London
Transitioning to new border arrangements: EU-UK trade from 1 January 2021 10/08/2020 Read more about Transitioning to new border arrangements: EU-UK trade from 1 January 2021 The UK Government has revealed the border controls that will apply on the UK border between the UK and the European Union following the end of the Brexit transition period (Transition Period), anticipated to be on 1 January 2021. This follows its announcement in June 2020 that import controls on goods moving from the EU to the UK would be introduced in phases over the first six months of 2021, giving importers ‘time to adjust’ and avoiding a cliff edge of regulation.
EU, Competition and Trade Regulatory
London
International data transfers from the EEA and UK: Take care 30/07/2020 Read more about International data transfers from the EEA and UK: Take care The Schrems II judgment, handed down by the Court of Justice of the European Union (CJEU) on 16 July 20201, is significant for any organisation which currently transfers personal data outside of the European Economic Area (EEA) or the United Kingdom (UK). It is especially significant for organisations which currently transfer personal data from the EEA or the UK to the USA.
EU, Competition and Trade Regulatory
London
Insurance Disputes Committees “IDC” 21/07/2020 Read more about Insurance Disputes Committees “IDC” Given the increase in insurance disputes in the Kingdom of Saudi Arabia, it is time to circle around with the dispute mechanisms in the Kingdom. Unlike certain Common law jurisdictions, KSA has a dispute procedure which is given over specifically to insurance: the Insurance Disputes Committee (the IDC).
Insurance & Reinsurance
Riyadh
Middle East
Liberia Updates its Corporate Legislation 17/07/2020 Read more about Liberia Updates its Corporate Legislation The Republic of Liberia recently announced significant revisions to its Business Corporation Act (BCA) and its Limited Liability Company Act (LLC Act). The purpose for the update was to more closely align the nation’s laws with international standards. The revisions also sought to include more modern practices and definitions into law and to remove redundant procedures.
Shipping
Service of proceedings in lockdown 09/07/2020 Read more about Service of proceedings in lockdown We are starting to see a number of cases coming through the English courts dealing with procedural issues caused by Covid-19. The latest of which addresses the issue of service of proceedings on a business premises during lockdown, and gives a clear message that the court will not permit parties to take advantage of the pandemic.
Dispute Resolution
London
UK goes it alone: The UK’s new human rights sanctions regime 08/07/2020 Read more about UK goes it alone: The UK’s new human rights sanctions regime The UK’s exit from the European Union will allow the UK to pursue its own sanctions policy. This development has been hailed by politicians, with Dominic Raab announcing measures targeting those responsible for or involved in serious violations of human rights, and saying that “Global Britain will be an even stronger force for good in the world, in the years ahead”. However, businesses will be forgiven for thinking that another set of regulations just means another set of headaches and compliance challenges.
International Trade Regulation
Australian parliamentary inquiry into the class action industry 16/06/2020 Read more about Australian parliamentary inquiry into the class action industry Class actions financed by litigation funders loom large in the Australian legal landscape. On 5 March 2020, the Morrison government announced a wide-ranging inquiry into the regulation of class actions and the litigation funding industry. The terms of reference were specifically expanded on 13 May 2020 to include “the potential impact of Australia’s current class action industry on vulnerable Australian business already suffering the impacts of the COVID-19 pandemic.”
Dispute Resolution
Asia Pacific
The New Commercial Court Law - Highlights of the new law 16/06/2020 Read more about The New Commercial Court Law - Highlights of the new law The new Commercial Court Law (the Law) issued by Royal Decree No. (M / 93) dated 15/08/1441 AH is considered a “quantum leap” in the development of the commercial judiciary in the Kingdom. It includes provisions that concern investors, traders and their counterparts in commercial transactions, as well as keeping pace with the Kingdom’s 2030 vision, which aims to build a strong and diversified economy for the Kingdom.
Commercial
Middle East
Riyadh
Force Majeure – Now What? A Three-Step Framework for Mitigation 04/05/2020 Read more about Force Majeure – Now What? A Three-Step Framework for Mitigation COVID-19 has led many companies to seek shelter within the force majeure provisions of their contracts, and our earlier briefings on this can be found on our website1. But, having declared force majeure, what should you do next? Can you simply wait until it all blows over? The reality is that there is a continuing duty to mitigate the impacts of force majeure events. Here, we run over the basics and set out a three-step framework to assist you in protecting your position.
Dispute Resolution
When is control too remote? 29/04/2020 Read more about When is control too remote? This briefing looks at the recent English Commercial Court judgment in Pipia v BGEO Group Ltd [2020] EWHC 402 (Comm)1, which gives welcome clarity, for the purposes of disclosure, on the extent to which a parent company would have control over documents held by its subsidiaries.
Dispute Resolution
Can lawyers ever disclose their clients’ privileged documents? 24/04/2020 Read more about Can lawyers ever disclose their clients’ privileged documents? It is well established that under English law Legal Advice Privilege (LAP) can protect the confidentiality of lawyer / client communications where legal advice is being sought. However, a recent decision has confirmed the principle that such privilege does not attach to communications between lawyer and client if the lawyer is instructed for the purpose of furthering crime, fraud or iniquity.
Dispute Resolution
Fraud and Insolvency
RESTRUCTURING HUB
'Negative' oil prices: what traders need to know 22/04/2020 Read more about 'Negative' oil prices: what traders need to know
Oil companies are currently facing a tremendous challenge. With massive oversupply in the market and storage facilities at capacity, the oil price has plummeted. The US has seen a "negative" price (sellers potentially paying buyers to take oil off their hands) for the first time in history. There is also the risk of negative prices arising in trading contracts, where price formulae involve the application of a discount to the already low benchmark price.
Commodities
EU Sanctions Authorities Start to Show Their Teeth 07/04/2020 Read more about EU Sanctions Authorities Start to Show Their Teeth
On 31 March 2020, the UK's Office of Financial Sanctions Implementation (OFSI) announced that the Economic Secretary to the Treasury had upheld the decision to impose two fines on Standard Chartered Bank for breaching EU financial sanctions on Sberbank and its former subsidiary Denizbank A.S.
EU, Competition and Trade Regulatory
International Trade Regulation
Texas Supreme Court addresses insurance coverage and extrinsic evidence 31/03/2020 Read more about Texas Supreme Court addresses insurance coverage and extrinsic evidence The United States Court of Appeals for the Fifth Circuit recently sent a certified question to the Texas Supreme Court asking whether a policy-language exception to the eight-corners rule—i.e., that the eight-corners rule does not apply to policies lacking language requiring an insurer to defend its insured “even if the allegations of the suit are groundless, false or fraudulent”—is a permissible exception under Texas law.
Insurance & Reinsurance
USA & Canada
Asbestos at sea: An unexpected problem 18/03/2020 Read more about Asbestos at sea: An unexpected problem Less than one year remains for the owners of any ships calling at EU ports or anchorages to arrange surveys, required by the EU Ship Recycling Regulation, to identify if hazardous materials including asbestos, are present on board. Will such surveys lead to an unwelcome and unexpected surprise with asbestos estimated to be present on a significant number of ships? Can owners be confident of relying on certification that the vessel is "asbestos free" when built? The answer for some owners may unfortunately be no.
Shipping
SUSTAINABILITY HUB
Sustainability in transport
LME warehouse reforms come into effect 11/03/2020 Read more about LME warehouse reforms come into effect The London Metal Exchange (LME) has been on a path of reform since 2013. Its initial focus was on infrastructure and operational efficiency. More recently, it turned its attention to reducing stock levels in LME-listed warehouses. Its latest reforms came into effect on 1 February 2020.
Commodities
SAMA Actuarial Work Regulation for Insurance 04/03/2020 Read more about SAMA Actuarial Work Regulation for Insurance The Saudi Arabian Monetary Authority (SAMA) announced the issuance of the Actuarial Work Regulation (the Rules) for Insurance on 1 March 2020. This comes after SAMA called for views on the draft regulation in November 2019, and it replaces the previous Regulations for Actuarial Acts of Insurance and/or Reinsurance Companies.
Insurance & Reinsurance
Middle East
Quincecare Duty in the spotlight: more trouble for banks? 04/03/2020 Read more about Quincecare Duty in the spotlight: more trouble for banks? Almost thirty years ago, the English courts found that a bank owes a fiduciary duty to its customer, known as the Quincecare duty of care (the Quincecare Duty). Since then, it has rarely been relied upon by customers seeking to take action against their bank. However, this may be about to change following two recent decisions which have thrust the Quincecare Duty back into the spotlight.
Dispute Resolution
Finance
Financial Institutions
Facial Recognition: Facing the Future 28/02/2020 Read more about Facial Recognition: Facing the Future ‘Facial recognition’ is a technique which uses technology to identify individuals from digital images of individuals’ faces. As use of this technology has grown, so too has the controversy surrounding it, particularly when used ‘live’ (ie. using technology which scans and identifies individuals’ faces in real time).
EU, Competition and Trade Regulatory
And the award goes to… Legal Innovation! 10/02/2020 Read more about And the award goes to… Legal Innovation! The world is not static. Innovation and progress are constant in all areas of society, including economics, technology, and commerce. The law is no different and must adapt to society’s ever-changing needs. In this article we discuss some important areas where the law and practice of law firms is developing or is likely to change in the future.
Legal Advice is Dominant 24/01/2020 Read more about Legal Advice is Dominant In a Court of Appeal judgment published earlier this week, in which Hickinbottom LJ gave the lead judgment, and Patten and Peter Jackson LJJ both agreed, the Court of Appeal in dismissing an appeal on all grounds, gave helpful clarification on the application of legal advice privilege (LAP), finding that the relevant document or communication must have been created for the dominant purpose of giving or receiving legal advice. This clarifies what has, until now, been an uncertain area.
Dispute Resolution
Enforcement of judgments between UAE and India gets easier 20/01/2020 Read more about Enforcement of judgments between UAE and India gets easier By notification just issued on 17 January 2020 (and published on 18 January 2020), the Ministry of Law & Justice in India has declared the UAE to be a reciprocating territory for the purpose of enforcing foreign judgments under the Indian Code of Civil Procedure, 1908. This means that enforcing UAE judgments in India (and vice versa, potentially) has just become much easier and more straightforward.
Shipping
Middle East
Indian Sub-continent
Autonomous ships: Drawing a line in the sand 17/01/2020 Read more about Autonomous ships: Drawing a line in the sand In our first 2020 briefing1 for our series on Maritime Autonomous Surface Ships (MASS), we consider changes to both the UK Code of Practice (COP) on MASS, signs of progress from the IMO in mapping the regulatory framework of autonomous shipping and a host of other exciting projects, vessel developments and events in which HFW has participated.
Shipping
SUSTAINABILITY HUB
Sustainability in transport
Email payment frauds - staying one step ahead 09/01/2020 Read more about Email payment frauds - staying one step ahead Email payment frauds are becoming more elaborate and can have a heavy financial cost for those that fall victim to them. In this briefing, we examine what businesses can do to prevent themselves becoming a victim to these frauds and to recover money paid out if they do fall victim to such a fraud.
Commodities
Dispute Resolution
Fraud and Insolvency
Good Faith in the UAE - An Insurance focus 17/12/2019 Read more about Good Faith in the UAE - An Insurance focus The concept of good faith differs between common law and civil law systems, particularly in relation to insurance and reinsurance contracts. This article highlights the key points
to bear in mind in relation to good faith in the UAE and how this can impact on claims.
Insurance & Reinsurance
Middle East
Airlines vs. claims agencies…the EU261 fight continues! 29/11/2019 Read more about Airlines vs. claims agencies…the EU261 fight continues! In February this year, low-cost carrier Ryanair secured a significant victory for the airline industry when the English Court of Appeal (CA) ruled in its favour in a dispute with solicitors Bott & Co, who specialise in the volume pursuit of compensation claims against airlines under EU Regulation 261/2004 (EU261)1. In November, Bott & Co were granted permission to appeal, paving the way for the UK Supreme Court (formerly the House of Lords) to consider issues arising out of EU261 for the first time in its history2.
Aerospace
KSA Inherent Defects Insurance 27/11/2019 Read more about KSA Inherent Defects Insurance With the number of developments announced recently in Saudi Arabia, the KSA construction industry is going through a dynamic and exciting phase. It may therefore come as no great surprise that the KSA regulatory authorities are taking an increasing interest in insurance in this sector.
Middle East
Insurance & Reinsurance
2019 Hurricane Season 08/11/2019 Read more about 2019 Hurricane Season Hurricane Dorian, which recently devastated the northwestern Bahamas and caused significant damage to the southwestern United States and Atlantic Canada, was the first major hurricane of the 2019 Atlantic hurricane season. Most current projections estimate that something in the region of 2 – 4 further major hurricanes can be expected during the 2019 season, suggesting above average activity.
Insurance & Reinsurance
Cut out the middle man 14/10/2019 Read more about Cut out the middle man Recent high profile news reports demonstrate the difficulties in ensuring that agents do not cause their trading principals to fall foul of anti-bribery and corruption laws. We look at what trading principals can do to manage this risk.
Commodities
Dismantlecon 09/10/2019 Read more about Dismantlecon On 23 September 2019 BIMCO published its first standard form offshore marine services decommissioning agreement "DISMANTLECON". DISMANTLECON is a contract for the dismantling and delivery of offshore structures to an agreed place of delivery. BIMCO hopes that the form will encourage a degree of standardisation and consequent cost savings in a market
anticipated by UK Oil & Gas to be worth £15.3 billion from 2018 to 2027 in the UK alone
1.
Shipping
Oil and Gas
In May 2019, the Journal of Petroleum Technology addressed the exponential growth of digitized processes in upstream oil and gas operations. The Journal cited to Roger Jenkins, Murphy Oil’s President and CEO, who stated, “[T]he adoption of digital technologies will continue to improve offshore operations, including improved well efficiency, real-time directional drilling, lower maintenance costs and safer operations.”
2
Energy
Houston
USA & Canada
Cyber Security
Tackling unruly passengers: Change on the horizon 16/09/2019 Read more about Tackling unruly passengers: Change on the horizon Changes to the international legal framework on the handling of unruly passengers are likely to come into force later this year. Against the backdrop of current legislation, we outline the scope of the Montreal Protocol 2014 (MP14) and highlight some measures that carriers may wish to take to safeguard their businesses.
Aerospace
The New Hague Judgments Convention 28/08/2019 Read more about The New Hague Judgments Convention Dispute Resolution analysis: Sara Sheffield, Partner and Derek Bayley, Associate, both at HFW Dubai, discuss the background to and the details of the new 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the Hague Judgments Convention) – a new international convention aimed at making it easier to enforce court judgments across jurisdictions.
Dispute Resolution
Autonomous ships: MASS – The “Pearl” of an Opportunity 25/07/2019 Read more about Autonomous ships: MASS – The “Pearl” of an Opportunity Since our last article on Maritime Autonomous Surface Ships (MASS) in December 20181, as expected there have been continued developments in technology and demonstrations. In this briefing, we write with an update on the work we have been doing at HFW; the latest news from the International Maritime Organization (IMO) on its Regulatory Scoping Exercise (RSE); and recent developments worldwide.
Shipping
SUSTAINABILITY HUB
Sustainability in transport
Air and Liquid Systems Corp. V. Devries 16/07/2019 Read more about Air and Liquid Systems Corp. V. Devries In Air and Liquid Systems Corp. v. DeVries, the U.S. Supreme Court held that, in the maritime law context, a manufacturer of an asbestos-free product can be liable for injuries caused by parts with asbestos created by third parties that were later incorporated into the manufacturer’s product.
Shipping
Brexit Update - 'No-Deal' Checklist 16/07/2019 Read more about Brexit Update - 'No-Deal' Checklist With both candidates to be the next Prime Minister of the United Kingdom refusing to rule out a ‘no-deal’ Brexit, and the current ‘no-deal’ deadline of 31st October 2019 looming, it is important for UK companies and companies which do business with the UK to ensure that they are ‘Brexit-proof’. In this briefing, we provide a checklist of key items for businesses to consider when planning for a no-deal Brexit.
EU, Competition and Trade Regulatory
The Strait of Hormuz: How can you manage the risks 03/07/2019 Read more about The Strait of Hormuz: How can you manage the risks On 20 June 2019 the US narrowly pulled back from retaliatory military strikes on Iranian targets. This was a move planned in response to Iran’s targeting of a US drone allegedly operating in Iranian airspace. These events follow a series of attacks on vessels in the Gulf of Oman area, most recently on the “Front Altair” and the “Kokuka Courageous”.
Shipping
ISDA Smart Derivatives - The Future? 10/06/2019 Read more about ISDA Smart Derivatives - The Future? For many of our clients, the trading of derivatives is a key element of their trading functions and risk-management processes. In light of increased regulatory requirements and an industry-wide focus on the potential benefits of automation, the International Swaps and Derivatives Association (ISDA) is now developing smart derivatives contracts. While significant progress has been made there are still considerable hurdles to be overcome before we will see smart derivatives contracts in practice.
Commodities
And the award goes to… Collaboration! 22/02/2019 Read more about And the award goes to… Collaboration! With Kevin Hart stepping down, an assortment of Hollywood A-listers worked together to host this year’s Oscars®. In the world of international trade and commerce, despite confrontation dominating the headlines, 2018-19
has in fact been a time of great collaboration, with prominent companies in many industries working together to tackle common challenges and exploit common opportunities. This briefing identifies some emerging trends, explaining why and how more and more companies are collaborating.
A well intentioned debate 28/01/2019 Read more about A well intentioned debate Former Supreme Court Justices Lord Hoffman and Lord Sumption have been debating the extent to which judges should look behind parties' choice of words to determine their intended meaning. We consider the background to this debate and its likely impact on the newly formed Supreme Court.
Dispute Resolution
Defying Convention 24/01/2019 Read more about Defying Convention Giles Kavanagh and Ashleigh Ovland examine whether we have reached the high water mark in relation to the protections offered to airlines by the Montreal Convention, and consider what this means for airlines when choosing which claims to contest.
Aerospace
Navigating a shareholders agreement: ROFR or ROFO? 11/01/2019 Read more about Navigating a shareholders agreement: ROFR or ROFO? In the first of our new series, HFW Insights: Navigating a shareholders agreement, in which we distil common corporate and transactional issues into bite-sized insight, we answer a commonly asked question: What is the difference between a right of first refusal (ROFR) and a right of first offer (ROFO)?
Corporate
Singapore
Middle East
Autonomous Ships: Shipping 4.0 19/12/2018 Read more about Autonomous Ships: Shipping 4.0 The digital shipping revolution is well underway. Significant developments have taken place with Maritime Autonomous Surface Ships (MASS) over the last few months, and the global autonomous shipping industry is predicted to grow into a $136 billion industry by 2030. In this latest briefing, we provide an update on the work we have been doing at HFW; the latest news from the International Maritime Organization (IMO) on its regulatory scoping exercise; and recent developments worldwide.
Shipping
The Geo-blocking Regulation: Is your business compliant? 04/12/2018 Read more about The Geo-blocking Regulation: Is your business compliant? From 3 December 2018, businesses operating in the EEA need to comply with the new Geo-Blocking Regulation1. In general, the Regulation prohibits businesses from unfairly discriminating against consumers or other businesses on the grounds of nationality, place of residence or place of establishment. In particular, the Regulation seeks to prevent the denial or limitation of access to goods and services sold online on these grounds.
EU, Competition and Trade Regulatory
Aerospace: Brexit Update 01/11/2018 Read more about Aerospace: Brexit Update In previous briefings1 we have highlighted the central issues for the aviation and aerospace industries which will need resolution in the run up to the UK's departure from the EU.
Aerospace
EU, Competition and Trade Regulatory
Vietnam ratifies the Montréal Convention 1999 24/10/2018 Read more about Vietnam ratifies the Montréal Convention 1999 Ratification of the Convention for the Unification of Certain Rules for International Carriage by Air, Montréal, 28 May 1999 (MC99) should lead to greater consistency and clarity in the claims handling process (particularly in relation to calculating compensation which, under MC99, uses the SDR as opposed to the Poincaré Franc) and will support the industries' e-freight initiatives. It also marks another significant milestone in the success story of Vietnamese aviation.
Aerospace
Asia Pacific
Brexit – Impact of a 'no deal' scenario on EU cross-border insolvencies 04/10/2018 Read more about Brexit – Impact of a 'no deal' scenario on EU cross-border insolvencies On 13 September 2018, the UK Government published a guidance notice (Guidance) on handling civil disputes, including cross-border insolvencies, in the event that the UK exits the EU without having first agreed a framework for ongoing civil judicial cooperation, and from which time and date (11 pm on 29 March 2019) the UK will not benefit from the EU rules to replace the current arrangements.
Fraud and Insolvency
EU, Competition and Trade Regulatory
Commodities
RESTRUCTURING HUB
IMO 2020: Legal considerations for unprecedented changes 28/09/2018 Read more about IMO 2020: Legal considerations for unprecedented changes The recent spate of vessel bunker contamination cases in the US Gulf and Singapore has brought into sharp focus the unprecedented standards to be affected by MARPOL Annex VI (commonly referred to as "IMO 2020"): the implementation of a global cap of 0.5% sulphur content in marine fuel from 2020. This limit will apply outside designated emission control areas.
Shipping
Singapore
2018 Yachts Market Briefing 25/09/2018 Read more about 2018 Yachts Market Briefing
With the 2018 Mediterranean yacht season fast closing and attention turning to the yacht shows and winter cruising grounds, we publish our latest market briefing covering a range of topical subjects from the transport of yachts, developments in Panama and US flagging, the threat of super storms, clarification of French social security law, our regular casualty focus and the implications of recent high profile casualties for the insurance market.
Shipping
Good Faith in the UAE: an Insurance Focus 19/09/2018 Read more about Good Faith in the UAE: an Insurance Focus Insurance professionals will be familiar with the concept of good faith. There are, however, differences between common law and civil law systems as to the nature of the duty and the time of application. This article highlights the key points to bear in mind in relation to good faith in the UAE and how this can impact on claims.
Insurance & Reinsurance
Middle East
In-House Counsel and Legal Privilege in the Dubai International Financial Centre 10/09/2018 Read more about In-House Counsel and Legal Privilege in the Dubai International Financial Centre Issues surrounding the breadth of legal professional privilege under English law are once again in the spotlight following last week's decision of the Court of Appeal in ENRC v SFO. HFW's briefing on that decision can be found here. But developments in the English law of privilege have broader repercussions outside of the UK. In this briefing, HFW Dubai explores how English legal professional privilege may apply in the Courts of the Dubai International Financial Centre. We also provide practical considerations for members of in-house counsel teams of UAE corporations based outside of the DIFC who may be used to litigating in the local UAE courts, where concepts of disclosure and privilege are significantly less familiar.
Corporate
Dispute Resolution
Dubai
Abu Dhabi
Middle East
ENRC v SFO Court of Appeal Judgment 05/09/2018 Read more about ENRC v SFO Court of Appeal Judgment In a decision handed down today and which will be welcomed by the legal community and clients alike, the English Court of Appeal has allowed Eurasian Natural Resources Corporation's (ENRC) appeal against a highly controversial earlier Commercial Court decision that had threatened to significantly narrow the scope of legal professional privilege (LPP).
Dispute Resolution
Sanctions contre l'Iran : la riposte européenne 31/08/2018 Read more about Sanctions contre l'Iran : la riposte européenne L'annonce par le Président Trump, le 8 mai 2018, du retrait des Etats-Unis du JCPOA1 a placé les Etats-Unis et l'Union européenne sur des chemins divergents à l'égard de l'Iran. Au moment où les Etats-Unis annonçaient que les sanctions qui avaient été suspendues en janvier 2016 seraient remises en place, l'Union européenne déclarait qu'elle entendait s'en tenir aux termes de l'accord sur l'Iran, y compris la levée des sanctions.
International Trade Regulation
Iran Sanctions: Steering a course through difficult waters 30/08/2018 Read more about Iran Sanctions: Steering a course through difficult waters President Trump's announcement on 8 May 2018 that the US would withdraw from the Joint Comprehensive Plan of Action (JCPOA)1 set the EU and US on divergent paths with respect to Iran. At the same time as the US indicated that the US sanctions which had been suspended in January 2016 would be re-imposed, the EU made clear that it intended to uphold the terms of the Iran deal, including the sanctions relief.
International Trade Regulation
Clarification on Admitted Reinsurer Tax Status in Brazil 17/08/2018 Read more about Clarification on Admitted Reinsurer Tax Status in Brazil A recent decision issued by the Brazilian Tax Authority (RFB) has brought some clarity to the tax regime which is applicable to admitted reinsurers operating in Brazil. The decision distinguishes, for the taxation purposes, between those admitted reinsurers who act with "ample powers" (i.e. similar to local reinsurers) and those who act in a limited manner, exercising a service or ancillary activity (i.e. similar to occasional reinsurers).
Insurance & Reinsurance
Brazil
Latin America
Say 'NON' to Strict Liability 10/08/2018 Read more about Say 'NON' to Strict Liability Following the dismissal of the appeal1 against the High Court's decision in Committeri v Club Mediterranee SA2 and Generali IARD SA (July 2016 briefing), we reinforce our advice to any companies providing package holidays to France to ensure that the contracts between them and the buyers of the holidays are governed by English law. They will then avoid the strict liability provisions of the Code de Tourisme for an injury sustained during the holiday.
Shipping
London
Paris
Houston
Brexit Update: Deal or No Deal? 30/07/2018 Read more about Brexit Update: Deal or No Deal? Recent developments – or lack thereof – in Brexit negotiations, have made a ‘no-deal’ Brexit a significant possibility. All companies likely to be affected by Brexit should now be putting in place contingency plans to safeguard their business in the event that no agreement is reached.
EU, Competition and Trade Regulatory
Hong Kong prepares for a drone invasion 25/07/2018 Read more about Hong Kong prepares for a drone invasion In April this year, Hong Kong’s Civil Aviation Department (the CAD) launched a public consultation into proposals to further develop regulations for the use of Unmanned Aerial Systems (UAS) in and above Hong Kong. We submitted a paper setting out our own views before the consultation closed on 3 July. Given the growing popularity of this new technology in Hong Kong and worldwide, it will be interesting to see what other responses the CAD receives.
Aerospace
Hong Kong
Asia Pacific
Autonomous Ships: Successfully navigating through the shallows? 16/07/2018 Read more about Autonomous Ships: Successfully navigating through the shallows? In this, the latest in our series on Maritime Autonomous Surface Ship (MASS), we provide an update on news from the International Maritime Organization (IMO) on its regulatory scoping exercise; take a look at some of the insurance issues arising as the use of MASS becomes more widely recognised; and consider the recent developments worldwide, including how the technology used in MASS is being trialled to assist the situational awareness in conventional vessels.
Shipping
London
Paris
Brave New World: International Cryptocurrency Regulation 10/07/2018 Read more about Brave New World: International Cryptocurrency Regulation Cryptocurrencies and blockchain technology have hit the headlines in recent months. Governments and policymakers from key jurisdictions are drafting and publishing guidance to govern the issuance and regulation of Initial Coin Offerings (ICOs) and cryptocurrencies. These have included Switzerland, with Zug now expected to become a key hub for cryptocurrency issuance and being commonly referred to as "Crypto Valley" within the industry.
Commodities
London
OFAC Sanctions on Russia and Iran 10/07/2018 Read more about OFAC Sanctions on Russia and Iran Global aluminium trader United Company RUSAL PLC ("Rusal") and several other Russian tycoons, companies and allies of President Vladimir Putin1 were the target of blocking sanctions by OFAC on 6 April 2018 ("April 2018 Sanctions"), following Treasury's reports to Congress in January 2018 in the US government's efforts to counter its adversaries through sanctions2.
Commodities
Second Editions of the FIDIC Rainbow Suite 04/07/2018 Read more about Second Editions of the FIDIC Rainbow Suite On 5th December 2017, the International Federation of Consulting Engineers (FIDIC) launched the Second Editions of the three major forms of contract in the FIDIC Rainbow Suite at the FIDIC International Users’ Conference in London. This bulletin provides a summary of the key changes in the Second Editions.
Construction
Iran sanctions: Aerospace focus 29/05/2018 Read more about Iran sanctions: Aerospace focus Stakeholders within the aviation sector will be impacted by the reimposition of US sanctions against Iran. Further to HFW's earlier update on President Trump's decision to withdraw from the Joint Comprehensive Plan of Action (JCPOA) and reinstate the Iran sanctions, this briefing considers the likely impact on the aviation sector.
Aerospace
Middle East
Retour sur l'obligation d'information Mai 2018 23/05/2018 Read more about Retour sur l'obligation d'information Mai 2018 En septembre dernier, nous vous présentions la nouvelle obligation faite à l'ensemble des sociétés immatriculées auprès du Registre du Commerce et des Sociétés (à l'exception des sociétés dont les titres sont admis aux négociations sur un marché réglementé) de déposer auprès de ce Registre du Commerce et des Sociétés, une déclaration relative à l'identité de leur(s) bénéficiaire(s) effectif(s).
Corporate
Paris
FOSFA arbitration rules simplified 04/05/2018 Read more about FOSFA arbitration rules simplified The FOSFA Rules of Arbitration and Appeal (the Rules) have been revised to simplify the time limits for bringing claims; to provide for a three person tribunal where a sole arbitrator is not selected; and to introduce a requirement for payment of a deposit. The revised rules will affect contracts incorporating the FOSFA terms entered into on or after 1 April 2018.
Commodities
Incendie volontaire : la faute intentionnelle réduite à portion congrue, Avril 2018 05/04/2018 Read more about Incendie volontaire : la faute intentionnelle réduite à portion congrue, Avril 2018 Un laboratoire d’analyse réputé, spécialisé en matière d’incendie, a rendu une intéressante étude apportant des données statistiques sur les incendies étudiés par son laboratoire. Sur les 4.500 incendies analysés, il en ressortait un taux de 52% d’incendie volontaire avec des différences importantes selon les types d’activité et bâtiments. Les statistiques de ce laboratoire devraient conforter les assureurs dans leur extrême prudence lorsqu’il s’agit d’accepter de garantir certains risques comme les manèges, les parkings souterrains, les discothèques, les bars-tabacs etc…où des taux d’incendie volontaire supérieurs à 80% sont recensés.
Insurance & Reinsurance
Paris
Is there a notable initiative in a market that can be developed into a Pan-Arab initiative? April 2018 02/04/2018 Read more about Is there a notable initiative in a market that can be developed into a Pan-Arab initiative? April 2018 To a great extent banks and insurers are the “yin and yang” of operational risk. Banks have to deal with operational risk on a daily basis. Banks attempt to manage and mitigate these risks; and when they cannot, banks may attempt to transfer these risks to the insurance and reinsurance market. Insurers, for their part, attempt to understand and price the risk and then, in effect, remove that risk from the bank’s balance sheet. The premise of this paper is that banks and insurers have much more in common than meets the eye and that new developments in their respective markets can significantly enhance the financial strength of the Pan-Arab region.
Insurance & Reinsurance
Middle East
And the Oscar goes to... Freedom of Contract! March 2018 05/03/2018 Read more about And the Oscar goes to... Freedom of Contract! March 2018 Morality clauses are back in the spotlight after a spate of high-profile scandals in Hollywood. Many studios are questioning how best to protect themselves from the financial and reputational damage done when claims are levied against their leading lights. After Kevin Spacey's fall from grace, Netflix may still have to pay him a significant sum after terminating his contract for House of Cards.
Dispute Resolution
Commercial
New LFSA Guidelines, February 2018 13/02/2018 Read more about New LFSA Guidelines, February 2018 On 1 January 2018, the Labuan Financial Services Authority (LFSA) issued Guidelines on the Establishment and Operations of Labuan Leasing Business (the Guidelines). The Guidelines seek to clarify the requirements for Labuan companies carrying out leasing business in Labuan International Business and Financial Centre.
Aerospace
Adam & Eve & Arbitration, February 2018 12/02/2018 Read more about Adam & Eve & Arbitration, February 2018 There are still arbitration clauses that contain arcane language requiring arbitrators to be "commercial men". In this article we examine how the English courts have interpreted this "commercial men" wording and consider whether this could ever serve to restrict the appointment of women arbitrators. We suggest that there is no objective justification for such wording, which undermines the efforts being made to improve gender diversity in arbitration. Private practice and in-house lawyers drafting bespoke arbitration clauses, as well as trade associations drafting standard form clauses, should adopt more modern language.
Dispute Resolution
Merger control – dodge a regulatory bullet: avoid gun jumping, December 2017 11/12/2017 Read more about Merger control – dodge a regulatory bullet: avoid gun jumping, December 2017 The competition and regulatory clearance process for mergers, acquisitions and joint ventures has become more onerous and lengthy for many transactions. More than 140 countries have adopted some version of a merger control regime, adding a layer of complexity to international deals. It is not unusual for the clearance process to take up to a year or more. During this period parties will often want to begin planning for future integration. The authorities meanwhile are looking closely at potential “gun jumping” violations.
EU, Competition and Trade Regulatory
MOSCOW STARS: Sale of a cargo under a Charterparty lien, November 2017 07/11/2017 Read more about MOSCOW STARS: Sale of a cargo under a Charterparty lien, November 2017 The Court in Dainford Navigation Inc v PDVSA Petroleo SA1 considered an application pursuant to section 44 of the Arbitration Act 1996 (the Act) for the sale of a crude oil cargo onboard the “MOSCOW STARS” that was the subject of a charterparty lien exercised by Owners in respect of sums outstanding under the Charterparty. This is the first judgment handed down by the Commercial Court on a defended application for the sale of a cargo under lien.
Shipping
Dispute Resolution
Intra-EU BITs, compatible with EU law? October 2017 24/10/2017 Read more about Intra-EU BITs, compatible with EU law? October 2017 In a somewhat surprising development but one that will be warmly welcomed by the international arbitration community, the Advocate General of the Court of Justice of the European Union (AG), Mr Wathelet, has issued an opinion stating that the bilateral investment treaty (BIT) between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic is compatible with EU law. This is the first time that the compatibility of an intra-EU BIT with EU law has been considered by the AG and Court of Justice of the European Union, (CJEU).
EU, Competition and Trade Regulatory
Dispute Resolution
UK Government releases Code of Practice - Cyber Security for Ships, September 2017 22/09/2017 Read more about UK Government releases Code of Practice - Cyber Security for Ships, September 2017 On 16 June 2017, the IMO adopted Resolution MSC.428(98) which encourages administrations to ensure that cyber risks are appropriately addressed in safety management systems no later than the first annual verification of shipping companies' DOCs after 1 January 2021. It has never been more important to have effective cyber security and crisis management plans in place, as highlighted by the recent NotPetya ransomware incident which effected Maersk. Cyber attacks can harm and damage crew, vessels and cargo and cause business disruption, loss of sensitive information and damage to the company's image. The UK Government's new Code of Practice – Cyber Security for Ships provides further (non-binding) guidance to shipping companies, complementing last year's code of practice for ports and port systems.
Shipping
Texas Federal Court Dismisses 30 Month Late Hail Damage Claim, August 2017 07/08/2017 Read more about Texas Federal Court Dismisses 30 Month Late Hail Damage Claim, August 2017 In Certain Underwriters at Lloyd’s of London v Lowen Valley View LLC1, the Insured attempted to bring counterclaims against Underwriters for breach of contract and Texas Insurance Code violations. The Honorable Jane Boyle, US District Judge for the Northern District of Texas, granted summary judgment in favor of Underwriters on all claims and dismissed them with prejudice. Judge Boyle’s decision was based, in part, on the Hamilton Opinion in which the Fifth Circuit affirmed Judge Boyle’s grant of summary judgment in favor of an insurer on the insured’s breach of contract and extra-contractual claims.2
Insurance & Reinsurance
Houston
USA & Canada
LITIGATION HUB
Countering America's Adversaries Through Sanctions Act, August 2017 31/07/2017 Read more about Countering America's Adversaries Through Sanctions Act, August 2017 On Thursday 27 July, the US Senate passed the Countering America's Adversaries Through Sanctions Act, H.R. 3364 almost unanimously (98 to 2). If formally signed into law by the President, the Bill will tighten sanctions against Russia, Iran and North Korea. President Trump has indicated that he will sign the Bill, but only after negotiating critical elements of it with US Congress. The Bill looks likely to become US law, given its majority support from Congress.
USA & Canada
New Bimco Cyber Security Guidelines, July 2017 06/07/2017 Read more about New Bimco Cyber Security Guidelines, July 2017 Cyber security has been a recurring theme in maritime publications and industry conferences over recent years. At one end of the spectrum are those who have dismissed it as the latest "millennium bug" whilst commentators at the other extreme raise the possibilities of malicious actors taking over vessel operations. Whatever your views on cyber security, the recent ransomware attack shows that the shipping industry is not immune and that issues of cyber security need to be taken seriously.
Shipping
Insurance & Reinsurance
Sulphur emissions in the Baltic Sea: two years on, June 2017 30/06/2017 Read more about Sulphur emissions in the Baltic Sea: two years on, June 2017 As many readers will know, since 1 January 2015 vessels operating in the Baltic Sea have had to comply with sulphur oxide (SOx) emissions limits. As an Emissions Control Area (ECA) along with the North Sea, North American coastline and Caribbean, vessels operating in the Baltic Sea are obliged to burn bunkers with a maximum of 0.10% m/m SOx content under regulation 14 of the IMO’s MARPOL Annex VI.
Shipping
The Iran deal: challenges ahead, June 2017 05/06/2017 Read more about The Iran deal: challenges ahead, June 2017 On the campaign trail it was described as “the dumbest deal ever” and that “horrible, disgusting, absolutely incompetent deal with Iran” by President Trump. Even though this rhetoric has been toned down slightly since Trump took office, there are concerns that the Iran nuclear deal in its current form now hangs in the balance. So what are the potential threats to the survival of the deal: can businesses confidently do business in Iran and what should they be doing to protect their interests?
Middle East
USA & Canada
Set-off under the UAE Insolvency Law, May 2017 24/05/2017 Read more about Set-off under the UAE Insolvency Law, May 2017 The new United Arab Emirates (UAE) Insolvency Law (Federal Law No.9 of 2016) (Insolvency Law) was published in the UAE Gazette on 29 September 2016 and came in to force three months later on 29 December 2016. The Insolvency Law is a federal law that applies to all seven emirates comprising the UAE. The initial view from market participants is that by replacing the old insolvency law, which placed a greater emphasis on creditor protections and formal bankruptcy proceedings alongside criminal penalties, the Insolvency Law is an overdue but welcome development.
Finance
Middle East
Dubai
RESTRUCTURING HUB
First oil and gas licensing round: the future of oil and gas in Lebanon, May 2017 17/05/2017 Read more about First oil and gas licensing round: the future of oil and gas in Lebanon, May 2017 With more than 100 trillion cubic feet of recoverable natural gas in the East Mediterranean Sea, the Levant Basin is a new attractive area for the oil and gas industry. In particular in Lebanon, the Government is actively committed to developing the oil and gas sector and has gained some momentum in its work to exploit the reserves. In 2012, the Lebanese Petroleum Administration (LPA) was established as a regulatory body in charge of managing the petroleum sector and putting in place the petroleum activities regulations required to launch the first Lebanese offshore licensing round.
Energy
Oil and Gas
Cyber security – the increasing threat to your business, May 2017 15/05/2017 Read more about Cyber security – the increasing threat to your business, May 2017 At the last count, it was estimated that Friday’s cyber attack impacted upon 200,000 victims in at least 150 countries. The attack used “WannaCry” malware to disable computer systems and present users with a ransom demand. The systems which suffered the attacks are said to have been vulnerable as they were operating outdated legacy software and because security upgrades had not been properly installed. At the time of writing this article, there is concern that the actual scale of this attack may not yet be known.
Shipping
The OCEAN VICTORY – l'ultima parola dei giudici in merito alla sicurezza del porto di Kashima, Maggio 2017 15/05/2017 Read more about The OCEAN VICTORY – l'ultima parola dei giudici in merito alla sicurezza del porto di Kashima, Maggio 2017 Più di dieci anni dopo l'affondamento e la conseguente perdita totale della OCEAN VICTORY nel porto giapponese di Kashima, l'ultima parola sulla sicurezza del porto ai sensi del charterparty è stata data dalla Suprema Corte lo scorso 10 maggio. Ribadendo la decisione della Corte d'Appello, la Suprema Corte ha ritenuto all’unanimità che il porto di Kashima non fosse "unsafe" e che non vi fosse alcuna violazione della garanzia di porto sicuro (“safe port warranty”) da parte dei noleggiatori. La corte ha analizzato anche come le disposizioni sulla copertura assicurativa contenute nel contratto di noleggio a scafo nudo incidano sui diritti delle parti, nonché la possibilità, in capo al noleggiatore a tempo, di limitare la sua responsabilità.
Shipping
Recovering exchange rate losses in a post-Brexit economy, May 2017 15/05/2017 Read more about Recovering exchange rate losses in a post-Brexit economy, May 2017 Many of our clients are working hard to manage the impact of fluctuating currency rates on their business. This has become a particular challenge in the wake of the UK’s decision to leave the EU in June 2016. Two recent, and apparently conflicting, decisions in the English High Court mean that the position remains unclear whether it is possible for non-UK litigants to recover currency exchange losses on legal fees paid in pounds sterling. However, some lessons can be drawn from the judgments and until a higher court resolves the conflict, our view is that it is still worth claiming for currency exchange losses.
Dispute Resolution
EU, Competition and Trade Regulatory
Eastern Europe & Russia
The OCEAN VICTORY – the final word on the safety of Kashima Port, May 2017 11/05/2017 Read more about The OCEAN VICTORY – the final word on the safety of Kashima Port, May 2017 More than 10 years after the grounding and subsequent total loss of the OCEAN VICTORY at Kashima port Japan, the final word on the safety of the port was given by the Supreme Court on 10 May 2017. Affirming the Court of Appeal decision1, the Supreme Court unanimously found that Kashima Port was not unsafe and that there was no breach of the safe port warranty by the charterers. The court went on to consider the insurance provisions in the demise charter and how they affect the rights of parties and issues relating to the limitation of liability.
Insurance & Reinsurance
Shipping
The 457 visa: being removed, reinvented or reborn? May 2017 26/04/2017 Read more about The 457 visa: being removed, reinvented or reborn? May 2017 On 18 April 2017, the Turnbull government announced that the 457 visa will be removed and replaced by a new scheme for skilled migrants. The changes are intended to “better meet Australia’s skills needs” and provide safeguards that prioritise Australian workers. The changes envisage a phasing out of the 457 visa by March 2018 and its replacement with the Temporary Skills Shortage (TSS) visa.
Shipping
Employment
Australia
Asia Pacific
Autonomy at sea – the future? April 2017 25/04/2017 Read more about Autonomy at sea – the future? April 2017 Maritime Autonomous Systems (MAS) technology in the marine and oil and gas sector has advanced rapidly in the last 20 years. Indeed a report prepared by the energy consultants, Douglas-Westwood1, suggests the demand for autonomous underwater vehicles (AUVs) is expected to grow by 49% in the next four years. The military sector will remain the greatest user of AUVs (73% of total demand), however, the commercial sector, including oil and gas, is expected to see the greatest growth in usage.
Shipping
Corporate governance under the spotlight, April 2017 24/04/2017 Read more about Corporate governance under the spotlight, April 2017 Recent scandals affecting businesses in the UK have put the spotlight on corporate governance and Theresa May has made it clear she intends to crackdown on unacceptable boardroom behaviour. A recent report published by the Business, Energy and Industrial Strategy Committee1 suggests that the current law does not require revision but a number of measures are being recommended including a voluntary code of corporate governance for large private companies, which have hitherto not been subject to the UK Corporate Governance Code that applies to listed companies.
Corporate
Eastern Europe & Russia
London
DIAC to change its default seat of arbitration, March 2017 28/03/2017 Read more about DIAC to change its default seat of arbitration, March 2017 The Dubai International Arbitration Centre (DIAC) is proposing to change the default of seat of arbitrations conducted under its rules of arbitration to the Dubai International Financial Centre (DIFC). The move is intended to take advantage of the pro-arbitration approach adopted by the DIFC courts and the DIFC’s international-standard arbitration law. It is a further step by DIAC to position itself as the arbitral institution of choice in the region and cement Dubai’s reputation as a Middle East arbitration hub.
Dispute Resolution
Dubai
Middle East
Indonesia ratifies Montréal Convention 1999, March 2017 27/03/2017 Read more about Indonesia ratifies Montréal Convention 1999, March 2017 On 20 March 2017, Indonesia deposited its instrument of accession to the Convention for the Unification of Certain Rules for International Carriage by Air, Montréal, 28 May 1999 (MC99) with the International Civil Aviation Organisation (ICAO) in Montréal (please click here to see tweet from the Indonesia Embassy in Ottawa). MC99 is expected to come into force formally in Indonesia on 19 May 2017. This development has come off the back of significant lobbying of the Indonesia State by the International Air Transport Association (IATA) who continue to push for global ratification and adoption of MC99.
Aerospace
Asia Pacific
Can root cause analysis reports and witness statements be protected from discovery? March 2017 14/03/2017 Read more about Can root cause analysis reports and witness statements be protected from discovery? March 2017 In our experience, more and more safety conscious businesses have established written policies and procedures that require an investigation and analysis of the root causes of an incident involving personal injury or property damage. Incidents occurring in connection with business operations, that are not caused by uncontrollable factors such as tropical storms, are generally considered to be the consequence of human errors. In addition to work stoppages or delays and the associated economic losses, damage to safety records, and potential loss of prospective business opportunities, on-the-job incidents often lead to permanent life-changing disabling injuries or loss of life for which the company could face civil liability.
Insurance & Reinsurance
Employment
Houston
Investment Funds Update, February 2017 20/02/2017 Read more about Investment Funds Update, February 2017 In the wake of the Brexit referendum, Theresa May and others in the UK business community adopted the slogan “open for business”. Proposed changes to UK partnership law, amongst other initiatives, suggest that the UK government is putting its money where its mouth is.
Corporate
Right to disconnect: what impact on companies? January 2017 26/01/2017 Read more about Right to disconnect: what impact on companies? January 2017 On 1 January 2017, the employment law dated 8 August 20161 related “to work, to the modernisation of the labour relations and the securing of professional life” entered into force. This new regulation requires companies employing more than 50 employees to start negotiations with the employees’ representative bodies in order to define the rights of employees to disconnect, to ‘forget’ about their smart phones and other equivalent devices out of working hours. What are the concrete consequences for employers?
Corporate
Employment
Paris
Amendments to the Construction Contracts Act 2004 (WA) come into effect, December 2016 14/12/2016 Read more about Amendments to the Construction Contracts Act 2004 (WA) come into effect, December 2016 If you are a keen student of infrastructure and construction, this December 15 you will be celebrating the 100th anniversary of the opening of the Great Northern, Piccadilly and Brompton Railway in London. It is hard to imagine it now but at the time the line was a flop; in its first twelve months of operation it carried just half of the projected passengers. Of course, construction industry participants in Perth, Western Australia probably won’t get excited about the centenary of a failed railway tunnel on the other side of the planet this December. But they might get excited about the latest local development; the operation of the amendments to the Construction Contracts Act 2004 (WA) (Act).
Construction
Australia
Cyber security – time to change the locks? December 2016 12/12/2016 Read more about Cyber security – time to change the locks? December 2016 The EU's Directive on Security of Network and Information Systems1 (the NIS Directive) obliges Member States to improve national cyber security and reporting. In addition to obligations imposed on digital service providers, the NIS Directive also imposes obligations on businesses defined as "operators of essential services" which could include ports, terminals, airports and banks as well as other businesses in energy, transport, health, IT, telecommunications, water, food and finance.
EU, Competition and Trade Regulatory
Case update: cross-border insolvency, November 2016 29/11/2016 Read more about Case update: cross-border insolvency, November 2016 In The Joint Provisional Liquidators of BJB Career Education Company Limited (In Provisional Liquidation) v Xu Zhendong1, the Court of First Instance considered the Hong Kong courts' common law powers to recognise and assist foreign courts and insolvency practitioners overseeing non-Hong Kong insolvency proceedings.
Hong Kong
Dispute Resolution
EU electronic signature regulation, November 2016 23/11/2016 Read more about EU electronic signature regulation, November 2016 The eIDAS Regulation1, directly effective in EU Member States, aims to ensure that electronic measures, such as e-Signatures and e-Seals, are mutually recognised between Member States and have the same legal status and validity as their traditional paper-based equivalents. The Regulation is one of the 12 initiatives proposed in the Commission’s Single Market Act Communication of 20112. As explained below, the impact of the Regulation will depend on the uptake of Qualified Electronic Signatures, which are equivalent to handwritten signatures and must be recognised in all EU Member States
EU, Competition and Trade Regulatory
The Corporate Veil, porous or impenetrable? November 2016 16/11/2016 Read more about The Corporate Veil, porous or impenetrable? November 2016 The leak of the “Panama Papers” in April 2016 led to a great deal of interest in the ownership structures behind many companies. It could be assumed that in the light of the additional information becoming easily available it would be more likely that there would be a flurry of cases attempting to “pierce the corporate veil.” The reality is that three recent decisions have highlighted that the Courts will not easily be persuaded.
Shipping
Dispute Resolution
Trading after Brexit: navigating WTO rules, November 2016 03/11/2016 Read more about Trading after Brexit: navigating WTO rules, November 2016 If the UK formally exits the EU at the end of the Article 50 process without a free trade agreement with the EU in place, trade between the UK and the EU will have to rely on WTO rules. This article provides an introduction to those rules for exporters and importers of goods and services, and clarifies what Brexit might actually mean for them, including the possibility of increased tariffs, increased customs formalities and other challenges.
EU, Competition and Trade Regulatory
International Trade Regulation
Is there a notable initiative in a market that can be developed into a Pan-Arab initiative? October 2016 25/10/2016 Read more about Is there a notable initiative in a market that can be developed into a Pan-Arab initiative? October 2016 To a great extent banks and insurers are the “yin and yang” of operational risk. Banks have to deal with operational risk on a daily basis. Banks attempt to manage and mitigate these risks; and when they cannot, banks may attempt to transfer these risks to the insurance and reinsurance market. Insurers, for their part, attempt to understand and price the risk and then, in effect, remove that risk from the bank’s balance sheet. The premise of this paper is that banks and insurers have much more in common than meets the eye and that new developments in their respective markets can significantly enhance the financial strength of the Pan-Arab region.
Insurance & Reinsurance
Middle East
Dubai
Brexit: the effect on cross-border insolvencies, September 2016 13/09/2016 Read more about Brexit: the effect on cross-border insolvencies, September 2016 At first glance, it seems that cross-border insolvencies between the UK and EU are likely to become more time-consuming, complex and expensive post-Brexit. However, the situation may not be as dire as it first appears due to the existence of alternative legislation and the exemptions to the EU legislation. As with other areas of law, when it comes to insolvencies much will depend on what steps are taken to maintain the current arrangements with the EU or whether they fall away altogether.
Fraud and Insolvency
EU, Competition and Trade Regulatory
Faillite d’Hanjin : quelles actions pour les intérêts cargaison ? Septembre 2016 08/09/2016 Read more about Faillite d’Hanjin : quelles actions pour les intérêts cargaison ? Septembre 2016 Le 1er septembre 2016 la compagnie Hanjin Shipping Co Ltd (“Hanjin”) première compagnie coréenne de transport maritime par conteneur a sollicité la protection de la loi coréenne sur les faillites et une procédure collective, dite de “réhabilitation”, a été ouverte par les tribunaux de Séoul. Cette faillite, qui concerne le septième transporteur mondial de conteneurs, est de nature à avoir des conséquences immédiates très importantes s’agissant des relations d’Hanjin, tant avec les autres opérateurs du transport maritime mondial (armateurs, affréteurs, compagnies maritimes partenaires au sein de THE Alliance etc.) qu’avec les ayant-droit des marchandises transportées.
Shipping
Staying Adjudications – when your contractor is becoming insolvent, September 2016 01/09/2016 Read more about Staying Adjudications – when your contractor is becoming insolvent, September 2016 In Hakea Holdings Pty Limited v Denham Constructions Pty Limited; BaptistCare NSW & ACT v Denham Constructions Pty Limited (16 August 2016)1 the Supreme Court of New South Wales stayed the enforcement of an adjudication award because there were significant counterclaims against the contractor and a real risk that the contractor would be wound up and unable to repay the money received - if the counterclaims were successful. The case demonstrates that courts will stay enforcement where there is evidence that the financial circumstances of the contractor mean that it is unlikely to be able to repay the adjudication award and where there are strong and substantial counterclaims, even if the contractor is not actually in liquidation.
Construction
Asia Pacific
Australia
Hanjin in rehabilitation: what next? August 2016 31/08/2016 Read more about Hanjin in rehabilitation: what next? August 2016 The insolvency of Hanjin Shipping (Hanjin), the world's seventh largest container line, is likely to have a significant impact throughout the maritime sector. In this briefing we provide an overview of some of the potential consequences of Hanjin's insolvency and which parties will be most affected by this development.
Shipping
New SIAC rules 2016: key changes apply from 1 August 2016, July 2016 21/07/2016 Read more about New SIAC rules 2016: key changes apply from 1 August 2016, July 2016 This year, the Singapore International Arbitration Centre (SIAC) celebrated its 25th anniversary and the SIAC congress held in May 2016, which HFW attended as a gold sponsor, was a testament to SIAC’s achievements during its 25 years. SIAC continues to play a key role in the city-state’s growth as a major international arbitration hub. Despite only releasing the previous edition of its rules in 2013, SIAC has recently released the 6th edition of its Arbitration Rules.
Dispute Resolution
Singapore
Asia Pacific
Holidays in France - always strict liability? July 2016 11/07/2016 Read more about Holidays in France - always strict liability? July 2016 In accordance with the High Court’s decision in Committeri v Club Mediterranee SA1, it is in the interest of any companies that provide package holidays to France to ensure that the contracts between them and the buyers of the holidays are governed by English law. This will ensure that travel companies will not be strictly liable to provide compensation in the event of an injury during the holiday.
Travel, Cruise & Leisure
Dispute Resolution
North Korea sanctions update, June 2016 08/06/2016 Read more about North Korea sanctions update, June 2016 Amid continuing frustration at the activities of North Korea, including allegations of a link between North Korea and cyber attacks against banks in Bangladesh and elsewhere which resulted in the theft of more than $80 million, the EU and US have now imposed still further sanctions against North Korea.
Dispute Resolution
International Trade Regulation
Asia Pacific
L’impact de la réforme du droit des contrats en France en matière de construction, Mai 2016 26/05/2016 Read more about L’impact de la réforme du droit des contrats en France en matière de construction, Mai 2016 L’Ordonnance n° 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations a été publiée au Journal Officiel du 11 février 2016 (l’“Ordonnance”). Il faudra attendre le 1er octobre 2016 pour que cette réforme entre en vigueur. Les contrats de construction de droit privé sont de fait impactés. Toutefois, si l’Ordonnance modifie le régime général des contrats elle ne touche pas aux règles spéciales applicables en matière de construction d’ouvrages, marchés à forfait, garanties décennales et autres responsabilités spécifiques des constructeurs. Les aspects clés de l’Ordonnance en la matière concernent notamment la période de négociation du contrat, le déséquilibre contractuel, la consécration de la violence par abus de dépendance, la consécration de la théorie de l’imprévision et la clarification des remèdes à l’inexécution contractuelle.
Construction
Paris
ASEAN liberalisation: open skies achieves full ratification, May 2016 10/05/2016 Read more about ASEAN liberalisation: open skies achieves full ratification, May 2016 Without much fanfare, it was confirmed last month that Indonesia and Laos have now ratified the Association of South East Asian Nations (ASEAN) open skies agreement (the Agreement). This means that the Agreement has now achieved full ratification by all ten ASEAN Member States (Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam). Whilst the announcement garnered little media attention, the importance of this development for the future liberalisation of aviation in South East Asia cannot be underestimated.
Aerospace
Asia Pacific
Hong Kong
Shanghai
Singapore
Indonesia: what’s new? April 2016 28/04/2016 Read more about Indonesia: what’s new? April 2016 Since September 2015 until early April 2016, the Indonesian government has issued 11 economic stimulus packages. As part of these economic stimulus packages the government has issued 169 regulations so far, whilst a few others are still in the process of further deliberation.
Commercial
Asia Pacific
International Trade Regulation
Logistics
Commodities
Energy
Finance
Pesée des conteneurs : nouvelle réglementation SOLAS, Avril 2016 21/04/2016 Read more about Pesée des conteneurs : nouvelle réglementation SOLAS, Avril 2016 Face à la multiplication des incidents causés par les fausses déclarations du poids des conteneurs, l’Organisation Maritime Internationale (OMI) a adopté en 2014 un amendement à la Convention internationale sur la Sauvegarde de la vie en mer (SOLAS) afin d’apporter des réponses à cette problématique. Cet amendement, qui entrera en vigueur le 1er juillet 2016, rendra obligatoire la pesée de chaque conteneur avant le début du chargement afin de permettre au ship planner d’établir un plan de chargement tenant compte du poids réel des conteneurs.
Ports & Terminals
Shipping
Logistics
A victory for insurers: the YUSUF CEPNIOGLU, April 2016 20/04/2016 Read more about A victory for insurers: the YUSUF CEPNIOGLU, April 2016 Many jurisdictions around the world have legislation granting a victim the right to sue a defendant’s insurer directly and without first suing the insured. Such “direct action statutes” have been used in a number of recent cases to sue P&I clubs directly. The issue for clubs, and insurance companies generally, is not only that such claims potentially circumvent the choice of law and jurisdiction within the contract of insurance, but also that contractual defences, most notably the pay to be paid rule, can often be declared unenforceable by the local courts.
Logistics
Shipping
Insurance & Reinsurance
North Korea sanctions update, April 2016 15/04/2016 Read more about North Korea sanctions update, April 2016 Following the nuclear test conducted by North Korea on 6 January 2016 and the rocket launch conducted on 7 February 2016, the UN, the US and EU have significantly expanded the scope of sanctions against North Korea. Other UN members, including China, are also reported to have imposed their own new set of sanctions against North Korea, in line with the new UN sanctions.
Asia Pacific
Dispute Resolution
International Trade Regulation
Changes to the Saudi Arabian labor laws, April 2016 14/04/2016 Read more about Changes to the Saudi Arabian labor laws, April 2016 The new amendments to the Saudi Arabian labor laws (initially announced in a Royal Decree No. M/46 of 05/05/1436H) came into force on 18 October 2015. The reforms follow the Saudi Ministry of Labor’s ongoing efforts to strike a balance between the creation of a dynamic marketplace for foreign businesses and protection and development of the local workforce.
Employment
Middle East
Tales of offshore contract terminations, April 2016 05/04/2016 Read more about Tales of offshore contract terminations, April 2016 The state of the global oil and gas market is such that owners of rigs or offshore support vessels face the realistic prospect of terminations by their charterer. The industry is well aware of a number of recent terminations, which are an unfortunate reality arising from the drive to save costs. Many of these termination disputes are confidential, either being subject to arbitration or negotiated by way of commercial settlement. We discuss below a recent and well publicised case which provides a useful and timely insight into the legal hurdles that these terminations raise. We also briefly address key issues, from an English law perspective, detailing how the validity of a typical termination is likely to be assessed during a dispute.
Energy
Dispute Resolution
Safe Harbour 2.0: will the EU-US Privacy Shield stand up to scrutiny? February 2016 08/02/2016 Read more about Safe Harbour 2.0: will the EU-US Privacy Shield stand up to scrutiny? February 2016 A last minute deal was struck on 2 February 2016 between the European Commission and the United States, in an attempt to fill the void in EU-US data transfer created by the Schrems1 decision in October 2015. The political agreement creates a new framework for transatlantic data flows, labelled the “EU-US Privacy Shield”. The name implies robust protection for EU citizens’ data, but the level of protection offered by the framework is already being called into question by critics across Europe.
EU, Competition and Trade Regulatory
USA & Canada
Eastern Europe & Russia
The new Saudi companies law and its implications for KSA companies, January 2016 21/01/2016 Read more about The new Saudi companies law and its implications for KSA companies, January 2016 On 9 November 2015, the Kingdom of Saudi Arabia’s Council of Ministers approved the long awaited new companies law 1437H/2015G (the New Law) which will come into force in May 2016 and is set to modernise the current framework under the law enacted in 1965 (the Current Law). This follows the accession of Saudi Arabia to the World Trade Organization (the WTO) and the commitment of the Kingdom to modernise its legal and regulatory environment in line with international trends and standards.1
Commercial
Insurance & Reinsurance
Corporate
Riyadh
Middle East
Why are we weighting? Time to act, January 2016 23/12/2015 Read more about Why are we weighting? Time to act, January 2016 The implications of the verification of the gross mass of containers — a relatively modest change to the International Maritime Organization (IMO) Safety of Life at Sea Convention (SOLAS) that in essence reiterates the existing responsibility of shippers to declare gross mass accurately — are reverberating through the container supply chain.
Ports & Terminals
Shipping
Logistics
Mongolia: what’s new? December 2015 11/12/2015 Read more about Mongolia: what’s new? December 2015 It is no secret that the fall in global commodity prices and Chinese demand has hurt the Mongolian economy. In addition, the Mongolian government is facing a number of imminent debt repayments and the prospect of having to restructure its sovereign and parastatal debt remains very real.
Corporate
Asia Pacific
Challenges en cascade pour l’Afrique, Novembre 2015 20/11/2015 Read more about Challenges en cascade pour l’Afrique, Novembre 2015 Avec la chute des prix des matières premières et le ralentissement de la demande chinoise, un certain nombre de gouvernements africains vont faire face à la nécessité de restructurer leur dette souveraine et parapublique. Ils ne peuvent l’ignorer et les exemples récents démontrent que plus l’approche adoptée est proactive, meilleurs sont les résultats à long terme.
Commodities
Africa
Asia Pacific
Corporate
Finance
Misery loves company, November 2015 19/11/2015 Read more about Misery loves company, November 2015 With the fall in global commodity prices and slowdown in Chinese demand for commodities, a number of African governments may face the imminent prospect of having to restructure their sovereign and parastatal debt. They should not be ignoring this and recent examples have shown that the more proactive an approach that can be taken, the better the long term results.
Commodities
Corporate
Africa
Asia Pacific
Finance
Extension of the French continental shelf, November 2015 17/11/2015 Read more about Extension of the French continental shelf, November 2015 On 25 September, France adopted four decrees redefining the external limits of the French continental shelf, with a gain of 579,000 km2 in surface area off the coast of Martinique and Guadeloupe, New Caledonia, French Guiana and the Kerguelen Islands. France, which already controls the second largest Exclusive Economic Zone worldwide, with 11.03 million km2, just behind the USA with 11.35 million km2, and before Australia with 8.15 million km2, intends to increase its submarine domain by 1 million km2.
Energy
Paris
Eastern Europe & Russia
Latin America
Global developments in LNG trading, November 2015 17/11/2015 Read more about Global developments in LNG trading, November 2015 This article is the second in a three part series and covers the ascent of the United States to becoming the world’s largest producer of natural gas, its transition from a net importer historically to a net exporter for the foreseeable future, and finally the important role of shipping in facilitating that transition to being a key player in the global LNG market. We also discuss the latest developments from three key areas of Asia – Japan, Singapore and Indonesia.
Energy
Asia Pacific
Singapore
Commodities
Shipping
Ports & Terminals
Time bars: miss them at your peril, November 2015 02/11/2015 Read more about Time bars: miss them at your peril, November 2015 On 15 October 2015, the English Court of Appeal handed down judgment in the matter of Stolt Kestrel BV v Sener Petrol Denizcilik Ticaret AS (STOLT KESTREL c/w NIYAZI S). At the same time the Court of Appeal also heard an application by the claimant in the matter of CDE S.A. v Sure Wind Marine Limited (SB SEAGUARD c/w ODYSSÉE) for permission to appeal to the Court of Appeal from a decision of the Admiralty Registrar, Mr Jervis Kay QC (see previous update: http://www.hfw.com/Beware-of-time-bars-April-2015).
Shipping
Dispute Resolution
Insurance & Reinsurance
Bollettino Marittimo – Edizione Speciale: Sentenza d’Appello nel caso OW Bunker, Ottobre 2015 26/10/2015 Read more about Bollettino Marittimo – Edizione Speciale: Sentenza d’Appello nel caso OW Bunker, Ottobre 2015 La Corte d’Appello inglese ha emesso giovedì scorso la sentenza d’appello [2015] EWCA Civ 1058 nella recente saga OW Bunker, rigettando all’unanimità l’appello degli Armatori, al solo fine di considerare che il mancato trasferimento del titolo di proprietà dei carburanti da parte di OW non avrebbe sollevato gli Armatori dal loro obbligo di predisporne il pagamento. In altre parole, la decisione pone le proprie basi, seppur limitate, sul fatto che il Sale of Goods Act non permetterebbe agli Armatori di porre in essere una difesa contro un reclamo da parte di OW per il pagamento del prezzo, ai sensi del contratto di fornitura.
Shipping
Ports & Terminals
Dispute Resolution
London
Insurance regulation in the ADGM and the DIFC: a comparative guide, November 2015 20/10/2015 Read more about Insurance regulation in the ADGM and the DIFC: a comparative guide, November 2015 The Abu Dhabi Global Market (ADGM), located on Al Maryah Island, Abu Dhabi, was established in 2013 as Abu Dhabi’s financial services free trade zone. The ADGM ultimately intends to be a broad financial services hub for local, regional and international entities seeking to do business in the Gulf and the wider region. Its initial focus is on the private banking, wealth management and asset management sectors, reflecting Abu Dhabi’s particular economic strengths.
Insurance & Reinsurance
Dubai
Middle East
EU, Competition and Trade Regulatory
Corporate
Competition law update: Draft Leniency Policy, October 2015 19/10/2015 Read more about Competition law update: Draft Leniency Policy, October 2015 The Hong Kong Competition Ordinance (Ordinance) was enacted on 14 June 2012 and its operative provisions finally come into full force on 14 December 2015. The Ordinance will apply to all sectors of Hong Kong's economy including the aviation, construction, insurance and shipping sectors (to name a few).
Construction
EU, Competition and Trade Regulatory
Hong Kong
Insurance & Reinsurance
Aerospace
Shipping
Coastal trading update, October 2015 14/10/2015 Read more about Coastal trading update, October 2015 Our previous briefings on the Coastal Trading (Revitalising Australian Shipping) Act 2012 (the Coastal Trading Act)1 set out in detail the proposed reforms to the current cabotage regulations contained in the Shipping Legislation Amendment Bill 2015 (Bill). The proposed reforms which effectively dismantle the previous Labor Government’s cabotage legislation to open up the Australian coast to international shipping have been subject to a concerted attack by the Maritime Union of Australia and the Labor opposition. Australian industry is strongly supportive of the proposed reform.
Shipping
Asia Pacific
Melbourne
Sydney
Perth
Logistics
Ports & Terminals
Indonesia: what’s new? October 2015 09/10/2015 Read more about Indonesia: what’s new? October 2015 Following the first two economic stimulus packages introduced by the Indonesian President Joko Widodo’s administration in September 2015, in October this year the government launched the much anticipated third phase of the stimulus package. These measures are intended to bolster the weakening Rupiah (IDR) and boost investment in the industrial sector.
Asia Pacific
International Trade Regulation
Logistics
Commodities
Energy
Commercial
Finance
Dubai court issues landmark judgment recognising and enforcing a foreign arbitral award, September 2015 03/09/2015 Read more about Dubai court issues landmark judgment recognising and enforcing a foreign arbitral award, September 2015 In a recent landmark judgment handed down by the Dubai Court of Appeal, Holman Fenwick Willan’s (HFW) Middle East shipping team, including Partner Yaman Al Hawamdeh and Associate Anas Al Tarawneh, has successfully obtained a judgment ordering the recognition and enforcement of a London arbitration award in the UAE. This judgment is of particular significance as it confirms that UAE courts should consider the validity of the underlying arbitration clause in the context of the New York Convention and the foreign law governing the contract. The judgment is also the first of its kind ordering the recognition and enforcement of a foreign arbitral award made on the basis of an unsigned charterparty.
Shipping
Dubai
Middle East
Hong Kong
London
Middle East
Eastern Europe & Russia
Dispute Resolution
Bunkers International Corporation, September 2015 02/09/2015 Read more about Bunkers International Corporation, September 2015 The latest reports that Bunkers International Corporation have filed for Chapter 11 protection for itself and affiliated companies once again highlights the risks that owners and charterers face of having to potentially pay twice for the same bunkers, that is paying both to the head contractor, Bunkers International, and any sub-contractors, as the physical supplier.
Shipping
Ports & Terminals
London
Paris
Brussels
Geneva
Piraeus
Dubai
Shanghai
Hong Kong
Singapore
Melbourne
Sydney
Perth
Brazil
Alliance Offices
Asia Pacific
Eastern Europe & Russia
USA & Canada
The role of LNG in the global energy sector and shipping’s role in that market, August 2015 24/08/2015 Read more about The role of LNG in the global energy sector and shipping’s role in that market, August 2015 This is the first in a series of three articles on the rapidly developing global LNG market. Every region of the globe will participate as either a supplier or consumer in the LNG market, and substantial amounts of investment are necessary to properly build out the midstream infrastructure, with the most interesting opportunities being in floating liquefaction and regasification.
Energy
Shipping
London
Paris
Brussels
Geneva
Piraeus
Dubai
Shanghai
Hong Kong
Singapore
Melbourne
Sydney
Perth
Brazil
Alliance Offices
Africa
Asia Pacific
Eastern Europe & Russia
Indian Sub-continent
Latin America
Middle East
Scandinavia
USA & Canada
Philippines ratifies Montreal Convention 1999, August 2015 18/08/2015 Read more about Philippines ratifies Montreal Convention 1999, August 2015 On 10 August 2015, the Philippine Senate ratified the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal, 28 May 1999 (MC99). MC99 is expected to come into force formally in the Philippines within the next year. The move will be welcomed by airlines and the International Air Transport Association (IATA) who have lobbied for global ratification and adoption of MC99 to bring an end to the patchwork of liability regimes that continue to exist around the world.
Aerospace
Asia Pacific
Hong Kong
Singapore
Tianjin Port explosion, August 2015 14/08/2015 Read more about Tianjin Port explosion, August 2015 The huge explosion at Tianjin Port, which led to an enormous fire that affected a substantial part of the port, could lead to massive supply chain disruption. This briefing provides an overview of some of the potential consequences.
Ports & Terminals
Shipping
Logistics
Insurance & Reinsurance
Asia Pacific
London
Paris
Brussels
Geneva
Piraeus
Dubai
Shanghai
Singapore
Hong Kong
Melbourne
Sydney
Perth
Brazil
Alliance Offices
Brazilian regulatory changes good for international reinsurers, August 2015 07/08/2015 Read more about Brazilian regulatory changes good for international reinsurers, August 2015 35 out of 40 of the world’s largest reinsurers have a licence to write business in Brazil. It will therefore be of great interest to the local and international market that on 20 July 2015, in a sudden move that was unexpected by most players, the Brazilian National Council of Private Insurance (CNSP) issued resolution 322, which provides a five year timeframe for the step-by-step relaxation of the mandatory cession rule and the intra-group prohibition. This article examines the genesis of the changes, describes the new rules, provides some commentary on how they are being received and speculates on why they came about.
Insurance & Reinsurance
EU, Competition and Trade Regulatory
Brazil
Latin America
Aviation regulatory update, July 2015 27/07/2015 Read more about Aviation regulatory update, July 2015 In this regulatory round-up, we highlight the forthcoming changes to EU legislation in the package travel sector – long-awaited and the first significant amendments to the law in this area for 25 years.
Aerospace
EU, Competition and Trade Regulatory
Eastern Europe & Russia
Nigeria bans 113 tankers, July 2015 23/07/2015 Read more about Nigeria bans 113 tankers, July 2015 On 15 July 2015, Nigeria’s state oil company, Nigerian National Petroleum Corporation (NNPC) issued a list of 113 tankers prohibited, with immediate effect, from “engaging in crude oil/gas ... activities in any... terminals within...Nigerian territorial waters...”. The directive further provides that “the affected vessels have also been barred from movements within ... Nigerian territorial waters”.
Energy
Shipping
Ports & Terminals
Africa
Australian cabotage update – July 2015 17/07/2015 Read more about Australian cabotage update – July 2015 In our March1 and May2 2015 updates on Australian coastal trading reform we reported on the government’s intention to scrap the existing coastal trading regime which was introduced by the previous (Labour) Government through the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CTA).
Shipping
Logistics
Ports & Terminals
Melbourne
Sydney
Perth
Asia Pacific
Approach agreed on new Data Protection Regulation, July 2015 13/07/2015 Read more about Approach agreed on new Data Protection Regulation, July 2015 On 15 June 2015, the EU Council agreed a general approach to the new data protection legislation. This means that the Council has a basis on which to negotiate with the European Parliament. The updated regime will be brought into law by a Regulation; therefore when it becomes law it will be directly effective in all Member States simultaneously. There is expected to be a two year transitional period.
EU, Competition and Trade Regulatory
Eastern Europe & Russia
The UK Insurance Act 2015, June 2015 10/06/2015 Read more about The UK Insurance Act 2015, June 2015 On 12 February 2015, the Insurance Act 2015 (the Act) received Royal Assent. The Act will come into force on 12 August 2016 and will make reforms in areas such as disclosure by policyholders and their agents in business insurance, warranties and an insurer’s remedies for fraudulent claims. The Act will introduce new law (replacing the existing common law) and, significantly, will also amend parts of the Marine Insurance Act 1906 (the MIA 1906). The MIA 1906 states the English common law for all classes of non-life insurance.
Insurance & Reinsurance
Dispute Resolution
Eastern Europe & Russia
Australian coastal trading update, May 2015 21/05/2015 Read more about Australian coastal trading update, May 2015 Further to our previous Briefings on coastal trading1 in which we have commented on the Australian Federal Government’s proposed changes to the current cabotage scheme administered under the Coastal Trading (Revitalising Australian Shipping) Act 2012, at an industry luncheon yesterday, Deputy Prime Minister Warren Truss, Minister for Infrastructure and Regional Development, provided some further details on the proposed reforms which he said were part of the Governments broader reform agenda.
Shipping
Asia Pacific
Melbourne
Sydney
Perth
Commodities
Logistics
Ports & Terminals
Wind farm design risk: landmark decision, May 2015 18/05/2015 Read more about Wind farm design risk: landmark decision, May 2015 In April 2014 the English courts issued a judgment in the case Højgaard v. E.ON concerning the contractor’s responsibility for the construction and design of the monopiles and transition pieces on the Robin Rigg wind farm. Despite the fact that Højgaard had followed the DNV standard it was found liable for design failures. Højgaard appealed the “first instance” court judgment of Mr Justice Edwards-Stuart, a move which has now been vindicated by the Court of Appeal, which has reversed the original finding.
Construction
Energy
Dispute Resolution
Australian coastal trading market update, May 2015 05/05/2015 Read more about Australian coastal trading market update, May 2015 Since its introduction in 2012, the Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) (the CTA) has been the subject of criticism by the shipping industry. In particular, the manner in which coastal trading is being regulated has caused difficulties for both foreign and Australian based shipowners and charterers seeking flexible and cost effective coastal trading services.
Shipping
International Trade Regulation
EU, Competition and Trade Regulatory
Logistics
Commodities
Ports & Terminals
Asia Pacific
Melbourne
Sydney
Perth
Thailand adopts new International Carriage by Air Act, May 2015 23/04/2015 Read more about Thailand adopts new International Carriage by Air Act, May 2015 From 14 May 2015 the International Carriage by Air Act B.E. 2558 (the Act) comes into force in Thailand. The significance of this legislative development cannot be underestimated. The Act will end the application of the Thai Civil and Commercial Code (the Thai CCC) to both aviation cargo and passenger claims. Whether this is a stepping stone to Thailand becoming a fully fledged state party to the Montreal Convention 1999 (MC99) remains to be seen.
Aerospace
Asia Pacific
Beware of time bars, April 2015 22/04/2015 Read more about Beware of time bars, April 2015 Q: What is the time limit for bringing a collision claim?
A: Section 190(3) of the Merchant Shipping Act 1995 (MSA 1995) provides that it is two years from the date the damage or loss was caused.
Shipping
Insurance & Reinsurance
Dispute Resolution
Dealing with the changing sanctions landscape, February 2015 23/02/2015 Read more about Dealing with the changing sanctions landscape, February 2015 The sanctions landscape has surely never been more complex and volatile, with escalating sanctions against Russia (and threats of more measures to follow), the ongoing Iran suspension (with uncertainty about the status after 30 June 2015) and mixed messages from the United States about a softening of the American position on Cuba.
London
Paris
Brussels
Geneva
Piraeus
Dubai
Shanghai
Hong Kong
Singapore
Melbourne
Sydney
Perth
Brazil
Alliance Offices
Financial Institutions
Insurance & Reinsurance
Energy
International Trade Regulation
Eastern Europe & Russia
USA & Canada
Shipping insolvencies: a Hong Kong perspective, February 2015 23/01/2015 Read more about Shipping insolvencies: a Hong Kong perspective, February 2015 As the bankruptcy of OW Bunker has shown, insolvency in a shipping context can cause significant, far reaching and immediate legal uncertainty. The interaction of insolvency procedures, jurisdictional issues, and the complex web of contractual relationships involved in shipping insolvencies creates unique practical and legal challenges. In this Briefing, we consider from a Hong Kong perspective some of the practical issues that commonly arise.
Shipping
Hong Kong
Asia Pacific
