The Mediation Act 2017 recently entered into force. The act's objective is to promote mediation as an attractive alternative to court proceedings, in terms of time, cost, resources and the avoidance of acrimony. Although mediation may not be suitable for all disputes, the act provides a platform for parties to resolve their difficulties without commencing litigation where appropriate (albeit certain classes of case are excluded from its scope).
Two separate bills making their way through the legislative process propose to extend the limitation period for complaints to the Financial Services Ombudsman (FSO). The first bill proposes to strengthen the functions of and amend the limitation period for bringing complaints to the FSO, while the second and more comprehensive bill proposes to amend the limitation period for bringing complaints to the office in certain circumstances.
Irish businesses trying to navigate the current Brexit landscape should consider the impact of events on their contractual relationships. As Brexit will directly or indirectly affect most, if not all, transactions between Irish and UK businesses or Irish businesses doing business in the United Kingdom (including Northern Ireland), Irish suppliers must consider not only events which may directly affect them, but also their supply chain.
Minister for Business, Enterprise and Innovation Heather Humphries recently laid the Competition Act 2002 (Section 27) Order 2018 before the Houses of the Oireachtais. This will have the effect of increasing the financial thresholds for M&A requiring a notification to the Competition and Consumer Protection Commission. This is the first time that a minister has used their powers under Section 27 of the Competition Acts from 2002 to 2017.
The Department of Business, Enterprise and Innovation recently published legislation that substantially increases the financial thresholds at and above which notification of a transaction is required to the Competition and Consumer Protection Commission. From 1 January 2019, only mergers where the acquirer and target each generate €10 million or more and together generate €60 million or more turnover in Ireland will trigger mandatory notification.
The Competition and Consumer Protection Commission's (CCPC's) current scrutiny of the Restaurants Association of Ireland serves as a reminder that trade associations must be careful to stay within the lines and avoid encouraging or inadvertently facilitating anti-competitive agreements between their members. Compliance training is an essential tool to prevent unwanted scrutiny from the CCPC and other authorities.
Non-compete clauses can provide important protection for purchasers who have a legitimate interest in maintaining the value of the business they are acquiring. However, careful consideration must be given to the drafting of non-competes in order to avoid allegations of anti-competitive conduct – which is a criminal offence in Ireland – and scrutiny from competition regulators such as the Competition and Consumer Protection Commission and the European Commission.
A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the amendment bill, the CCPC would be empowered to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.
The Supreme Court recently found the well-established regime of registered employment agreements to be unconstitutional. Uncertainty regarding the level of protection for wages and benefits of workers in the construction sector followed this decision, but has now been addressed by the Sectoral Employment Order (Construction Sector) 2017 and the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.
Construction contracting has seen significant change in both the private and public sectors, including the introduction of the long-awaited reform of the Public Works Contracts and a definitive date for the operation of the Construction Contracts Act 2013. The act applies to a wide range of construction contracts, including main contracts, subcontracts and professional team appointments entered into after July 25 2016.
Limitation of liability is a hotly negotiated issue in most commercial construction contracts. Parties often rely on the standard form clauses as being tried and tested and drafted with the benefit of industry knowledge. Such reliance can prove hazardous, as it may not adequately deal with the commercial risks of a particular project. Exclusion clauses that significantly limit parties' liability by way of financial caps are generally useful.
Support for building information modelling (BIM) is gathering pace. BIM is regarded as a powerful risk and cost management tool, encouraging better collaboration and improved project delivery. Contractors are already utilising BIM to help them to gain competitive advantage in the marketplace. Critics believe that specific BIM clauses and terms should be incorporated into the contract to help avoid potential disputes.
It has been a busy time for the construction industry as the economy picks up and growth in activity levels across a range of sectors brings new opportunities. This new wave of development is taking place alongside regulations and changes to industry practice. New regulation in the sector is welcome, but the breadth of the changes means that all players must keep up to speed with them.