United Kingdom updates

Construction

Contributed by Fenwick Elliott Solicitors
Breaking ground: technology in construction
  • United Kingdom
  • 20 May 2019

The continuing development of robotics and AI is a potential game changer for the construction industry and may help to resolve (or at least improve) skills shortages and poor productivity rates. However, this technological future will also bring new risk profiles to construction contracts and additional contractual provisions to deal with matters such as IP rights, data protection, confidentiality, health and safety and cyber risk. Perhaps the real question is how this technology will develop and what its impact will be onsite.

AI and construction law: an essential and inevitable partnership
  • United Kingdom
  • 11 February 2019

In light of the discussion and hype surrounding artificial intelligence (AI), this article considers AI and construction law in the context of risk and contract management, as well as a number of existing technologies which could assist in this respect. With greater collaboration between lawyers and clients, AI can bring greater efficiencies and efficacies to contract generation, review, analysis and management processes.

How the 2017 FIDIC contract deals with time
  • United Kingdom
  • 29 October 2018

In 2017 the International Federation of Consulting Engineers (FIDIC) finally unveiled the Second Edition of the 1999 Rainbow Suite, Red, Yellow and Silver Books. This article examines how the FIDIC form deals with time and includes an appendix detailing the changes made to Clause 8, the primary clause which deals with time or 'Commencement, Delays and Suspension' from the original 1999 contract.

Know your position: an overview of the role of the certifier
  • United Kingdom
  • 13 August 2018

Certifiers hold a key role in construction contracts. Certificates, statements and decisions issued by certifiers can have a huge impact on cash flow. Their actions can also provide a recipe for disputes where the certifier is viewed as, or is, one-sided or biased. So, what are the basic laws governing certification and what can be done when something goes wrong in the process?

Victory House General Partner Ltd v RGB P&C Ltd
  • United Kingdom
  • 18 June 2018

An application was recently made to restrain notice being given of a winding-up petition which sought payment of some £820,000 following an adjudicator's decision in respect of goods supplied and services rendered for the development and conversion of Victory House. The adjudicator had rejected Victory House's argument that it was not liable to pay the sum identified in the interim application because the parties had entered into a memorandum of understanding which provided for other payments to be made.


Corporate Finance/M&A

Contributed by Davis Polk & Wardwell LLP
Takeover Panel: roundup of recent panel statements
  • United Kingdom
  • 24 April 2019

The Takeover Panel recently published a revised version of the Takeover Code to reflect amendments relating to the response statement to its October 2018 consultation on asset valuations and the Financial Conduct Authority's announcement that it will phase out the United Kingdom Listing Authority name. In addition, the panel recently published a rule-making instrument concerning the response statement to its consultation on the United Kingdom's withdrawal from the European Union.

Sky takeover – post-offer undertakings
  • United Kingdom
  • 06 February 2019

One of the highest profile public M&A transactions of 2018 was the competitive takeover battle between Comcast and Fox for control of Sky, against the backdrop of Disney's proposed merger with Fox. This article looks at the post-offer commitments given by each of the bidders in connection with their competing offers.

Sky takeover – regulating an auction process
  • United Kingdom
  • 30 January 2019

One of the highest profile public M&A transactions of 2018 was the competitive takeover battle between Comcast and Fox for control of Sky, against the backdrop of Disney's proposed merger with Fox. As the first competitive process to proceed to an auction since the introduction of the default auction rules into Appendix 8 of the Takeover Code in 2015, the auction for Sky has been watched closely by public M&A practitioners.

Sky takeover – applying the chain principle
  • United Kingdom
  • 23 January 2019

One of the highest profile public M&A transactions of 2018 was the competitive takeover battle between Comcast and Fox for the control of Sky, against the backdrop of Disney's proposed merger with Fox. As Disney was proposing to merge with Fox and one of Fox's assets was a 39% stake in Sky (which is subject to the Takeover Code), the Takeover Panel Executive had to consider whether to apply the chain principle to Disney if it successfully acquired Fox.

Takeover Panel seeks to clarify rules on asset valuations
  • United Kingdom
  • 14 November 2018

The UK Takeover Panel recently published Public Consultation Paper 2018/1, which sets out several proposed amendments to Rule 29 of the Takeover Code relating to asset valuations. Given that the consultation paper largely seeks to codify current market practice and the approach of the panel to asset valuations, if the code is amended in line with the proposals, such amendments are unlikely to have a material impact on transactions.


Employment & Benefits

Contributed by Lewis Silkin
Voluntary overtime must be included in holiday pay if sufficiently regular and settled
  • United Kingdom
  • 17 July 2019

The Court of Appeal recently confirmed that the EU Working Time Directive requires voluntary overtime to be included in holiday pay if it is sufficiently regular and settled to amount to normal remuneration. This ruling is in line with other recent cases which have covered what should be considered when calculating holiday pay. It provides clear authority that employers should include sufficiently regular and settled voluntary overtime in their holiday pay calculations.

Failing to enhance pay for shared parental leave is not sex discrimination
  • United Kingdom
  • 10 July 2019

In an emphatic judgment, the Court of Appeal has ruled that it is not direct discrimination, indirect discrimination or a breach of equal pay rights to provide enhanced pay for maternity leave and statutory pay only for shared parental leave (SPL). This judgment is good news for employers, as it sends a clear message that it is lawful to enhance maternity pay but provide statutory pay only for SPL.

Employee ordered to pay more than £500,000 in legal costs in breach of restrictive covenants and data privacy case
  • United Kingdom
  • 03 July 2019

Following a trial in the High Court where an employer was awarded final injunctions to prohibit a former employee from breaching post-termination restrictions, the losing employee was ordered to pay 90% of his former employer's legal bill. This is a useful decision for employers, as it demonstrates that a reasonable and proportionate email trawl need not infringe an employee's privacy rights.

Court of Appeal rules on liability of overseas co-workers for whistleblowing
  • United Kingdom
  • 19 June 2019

In an unusual case of whistleblowing detriment brought by an overseas employee against two co-workers (also based overseas), the Court of Appeal has ruled that the employment tribunal in question had no jurisdiction to hear the claim in relation to personal liability of the co-workers because they were outside the scope of UK employment law. The decision may have implications for other types of claim brought by employees posted overseas where similar personal liability provisions apply.

Good Work Plan – first steps down the path
  • United Kingdom
  • 05 June 2019

In December 2018, following Matthew Taylor's extensive review of modern employment practices, the government unveiled its Good Work Plan, which set out a long list of proposals. The employment law reforms mapped out by the government are still in their infancy, but this is a good moment to reflect on where things stand and what lies ahead.


Energy & Natural Resources

Contributed by CMS Cameron McKenna Nabarro Olswang LLP
Electricity storage: consenting clarity
  • United Kingdom
  • 25 February 2019

The Department for Business, Energy & Industrial Strategy (BEIS) recently launched a consultation on proposals regarding the consenting of large-scale electricity storage in England. As the current planning system does not distinguish between standalone and co-located storage technologies, storage developers must consider a number of issues to ensure that the electricity storage facility is consented lawfully. The BEIS's proposals provide much needed clarity in this regard.

All change for network charging – Ofgen launches significant code review
  • United Kingdom
  • 21 January 2019

Ofgem recently published its decision to launch a significant code review (SCR) into the electricity network access and forward-looking charging arrangements. The decision sets out the scope and guiding principles for the SCR, along with a timeline for the process. The aims of the SCR include encouraging the better use of existing network capacity and minimising future network costs.

End of the triad? Update on Ofgem's Targeted Charging Review
  • United Kingdom
  • 14 January 2019

Ofgem recently published its 'minded to' decision on its Targeted Charging Review. The decision sets out Ofgem's view that the residual aspect of electricity transmission and distribution network charges should be based on fixed tariffs for different classes of consumer rather than the other options under consideration (eg, usage during periods of peak demand). Ofgem also proposes to remove most of the remaining embedded benefits enjoyed by smaller distribution-connected generators.

New Ofgem guidance for operators of essential services
  • United Kingdom
  • 07 January 2019

Ofgem has published guidance for operators of essential services (OES) in the energy sector. The guidance aims to support OES in meeting their cybersecurity obligations under the Network and Information Systems Directive and the implementing UK law, the Network and Information Systems Regulations 2018. OES must now adhere to a timeline to demonstrate their compliance and work with Ofgem to make any necessary changes.

OPRED consults on new civil penalties for illegal oil and gas-related activity
  • United Kingdom
  • 03 December 2018

The Department for Energy and Industrial Strategy and the Offshore Petroleum Regulator for Environment and Decommissioning recently launched a consultation on the draft guidance to accompany the Offshore Environmental Civil Sanctions Regulations 2018. The overarching message of the new penalties regime is that the processes and outcomes of enforcement with regard to offshore companies engaged in illegal oil and gas-related activity will change considerably.


Franchising

Contributed by Fieldfisher LLP
Managing supply chain risk in franchise systems – proposed changes to insolvency regime
  • United Kingdom
  • 11 June 2019

Against the backdrop of a number of high-profile business failures in the UK retail sector, the government has issued a report on the insolvency regime, which will affect the operation of termination rights in supply agreements. This article considers the proposals and provides a best practice recommendation for recovering goods in the possession of a franchisee once they have entered some form of insolvency protection.

Be careful of 'non-reliance' clauses in franchise agreements
  • United Kingdom
  • 02 April 2019

In a recent Court of Appeal case, a landlord was unsuccessful in its appeal against a first-instance decision that a 'non-reliance' clause in a lease had attempted to exclude liability for misrepresentation. The decision, which will have ramifications for franchise agreements, demonstrates that such clauses must be fair and reasonable and have regard to the circumstances which were or ought reasonably to have been known to or contemplated by the parties when the contract was made.

Legalities of franchising in the United Kingdom
  • United Kingdom
  • 05 February 2019

Franchisors expanding into the United Kingdom need a thorough knowledge of any UK rules and regulations which may affect them, particularly in a post-Brexit Britain. Understanding the risks and issues and managing those risks through effective structuring and enforceable legal contracts will enable international franchisors to reap the rewards of doing business in one of Europe's largest and most dynamic markets.

Misrepresentation in franchising – important lessons from recent High Court case
  • United Kingdom
  • 16 October 2018

Four former Vision Express franchisees were recently successful in their claim against their franchisor, in which they alleged that they had been induced to enter into their franchise agreements on the basis of false information provided by a Vision Express employee. The case highlights the importance of ensuring that a franchisor's employees stay on message during the sales process and information which is provided to prospective franchisees is scrutinised to ensure its accuracy and relevance to the investment.

Don't forget to renew those vows – the franchise marriage
  • United Kingdom
  • 26 June 2018

Franchise relationships are rarely life-long commitments; most will be for a fixed term with a right to renew. The renewal process provides an opportunity for both parties to re-assess and recalibrate the relationship, as well as to settle any issues before either renewing their vows or deciding to go their separate ways. This all makes good commercial and legal sense; however, it is surprisingly common that the renewal process is not always followed.