Construction analysis: The Scottish court dismissed a contractor’s claim against a third party for delay and disruption caused by an escape of foul water onto the site, as the contractor did not have sufficient proprietary interest in the site to bring the claim.

Contractor’s programme 1 Within seven days of the date of this Contract the Contractor shall without charge produce to the Employer a programme for carrying out the Works [detailing

This Practice Note explains the application of Contracts (Applicable Law) Act 1990 when considering whether the parties have chosen the applicable law for their contract. It considers a number of issues such as whether there is a requirement for the choice of applicable law to be in writing and to be for the law of a country and whether the parties may split the applicable law. The mandatory rules (domestic/foreign/international) which limit the applicable law are also set out. To determine whether the applicable law regime set out in C(AL)A 1990 applies, see Practice Note: Understanding applicable law—a guide for dispute resolution practitioners. For guidance: • as to the application and interpretation of the act, see Practice Note: Contracts (Applicable Law) Act 1990—application and interpretation • on the approach when the parties have failed to choose the applicable law, see Practice Note: Contracts (applicable law) Act 1990—parties fail to choose the applicable law C(AL)A 1990, Sch 1 sets out a modified form of the Rome Convention as applied

This Practice Note considers the application and scope of the Contracts (Applicable Law) Act 1990 (C(AL)A 1990) which is a modified version of the Rome convention on the law applicable to contractual obligations (the Rome Convention). C(AL)A 1990 is applied by the courts of England and Wales (English courts) when determining the applicable law of a contractual dispute where the contract was entered into between 1 April 1991 and 16 December 2009. To determine whether the applicable law regime set out in C(AL)A 1990, applies, see Practice Note: Applicable law—a guide for dispute resolution practitioners. This Practice Note refers to: • the Official Report on the Rome Convention by Professors Giuliano and Lagarde, an explanatory report on the interpretation of the convention. This is referenced in this Practice Note as the Giuliano-Lagarde report. C(AL)A 1990, s 3 provides that this report maybe considered to assist in the interpretation of the provisions of the convention in C(AL)A 1990, Sch 1 • decisions of the Court of Justice. For guidance on whether judgments of the Court

This Practice Note considers the application of the applicable law regime set out in the Contracts (Applicable Law) Act 1990 in cases in which the parties have not chosen the applicable law. It sets out the basic rule, which is that the law of the country ‘most closely connected’. It explains the presumptions applied to determine the most closely connected country and when those presumptions can be disregarded. To determine whether the applicable law regime set out in C(AL)A 1990, applies, see Practice Note: Applicable law—a guide for dispute resolution practitioners. For guidance on the position where the parties have chosen the applicable law, see Practice Note: Contract (Applicable Law) Act 1990—applicable law chosen by the parties. C(AL)A 1990, Sch 1 sets out a modified form of the Rome Convention as applied by the courts in England and Wales (English courts). This Practice Note refers to: • the Official Report on the Rome Convention by Professors Giuliano and Lagarde, an explanatory report on the interpretation of the convention.

The Contracts (Rights of Third Parties) Act 1999 allows third parties to be granted rights to enforce terms of a contract that they are not party to if the expressly stated in the contract or if that is clearly the intention of the contracting parties.

This Practice provides some practical illustrations of the operation of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999), considering group liability and defences under C(RTP)A 1999 to third party claims. For detailed guidance on when and how C(RTP)A 1999 operates generally, see Practice Note: Third party rights—the Contracts (Rights of Third Parties) Act 1999. Rights and liabilities arising in contracts involving group structures For guidance on construing contracts to determine whether third party benefits have been conferred for the purposes of satisfying C(RTP)A 1999, s 1(1)(b), see Practice Note: Third party rights—the Contracts (Rights of Third Parties) Act 1999. A fairly typical group supply structure may look like the following. Parent Supplier (PS) agrees with Parent Customer (PC) that: • PS will supply raw materials to PC • PS will also supply raw materials to PC's subsidiary companies, C2 and C3 • PS will procure that its subsidiary companies, S2 and S3, also supply raw materials to PC • PS will procure that S2 and S3 will also supply

This Practice Note considers why a third party may wish to rely on a contract to which it is not privy, and whether the common law doctrine of privity of contract may be avoided by recognising instead a collateral agreement, a group contract or an agency scenario on the given facts. Why consider the effects of contracts on third parties? Although your client is not a party to the contract in question, you may still want to know whether they may be: • liable for any obligations or • entitled to enforce any benefits under the contract. Consider the following scenarios: • in a contract between A (promisor) and B (promisee), A agrees to pay £1,000 to C (third party) • in a contract between A (promisor) and B (promisee), A agrees that any liability in respect of C (third party) should be limited to £5,000 In both of these examples, there is a benefit to C (payment of £1,000 and limitation of their liability to a fixed sum of £5,000, respectively)

Private Client analysis: This case represents a rare example of the court finding that a contract existed between family members (in this case, an elderly mother and her adult daughter). By her claim, the claimant sought to be reimbursed from her mother’s estate for the care that she had provided to her mother during the last few years of her life. The judge provided guidance relating to capacity to enter into legal relations and commented on what, if any, impact the existence of a Lasting Power of Attorney may have on this issue. It was also a feature of the case that the claimant’s mother had been diagnosed with dementia, and so this is also featured in the court’s consideration of capacity. Finally, the claim was also advanced on the basis of unjust enrichment, and the judge provided detailed analysis of whether ‘free acceptance’ is a valid unjust factor. In this last respect, his decision departs from the recent decision of H&P Advisory Ltd v Barrick Gold (Holdings) Ltd in which Simon Gleeson (sitting as a deputy judge of the High Court) dismissed free acceptance as a free-standing unjust factor, as well as obiter observations of Lord Burrows in Barton v Morris. Written by Ben Haseldine, barrister at 4 King’s Bench Walk.

The Contracts for Difference (CfD) scheme is the primary mechanism for supporting low-carbon electricity generation in the UK, via a private law contract between a low carbon electricity generator and the Low Carbon Contracts Company (LCCC), which provides long term revenue stabilisation for low carbon generation.

The aim of the Contracts for Difference (CfD) scheme is to provide long-term price stabilisation and revenue certainty to low carbon generation projects and to enable investment to come forward at lower capital costs, reducing costs to consumers in funding the scheme. The CfD is one of the key mechanisms introduced by the UK government as part of Electricity Market Reform (EMR) (see Practice Note: Electricity Market Reform (EMR)). The other key scheme introduced as part of EMR is the Capacity Market, for more information on which, see Practice Note: Capacity Market—key features. Following EMR, the primary UK government programme tasked with reform of the Great Britain (GB) electricity market is known as the ‘Review of Electricity Market Arrangements’ (REMA). For further background on REMA, including its interface with the CfD regime, see Practice Note: Review of Electricity Market Arrangements (REMA)—key developments. This CfD tracker tool displays the current status and most recent developments in relation to the scheme since June 2015, covering consultation responses, regulatory guidance publications and key amendments to the CfD mechanism. Until

Note that additional commentary on the issues discussed in this Practice Note in the context of the regulation, consenting and incentivisation of the net zero energy transition is available in the following textbook that we have published: Collinson and Hockman on Energy Law: Regulating, Consenting and Incentivising the Energy Transition.  What is the background to the CfD regime? Contracts for Difference are a key strand of the government’s Electricity Market Reform (EMR) programme introduced in 2013. EMR was developed by the UK government to promote investment in secure forms of capacity and affordable low carbon energy generation. The key mechanisms implemented through the EMR reforms include: • the Contracts for Difference (CfD) regime, which is the subject matter of this Practice Note and takes the form of a contract providing owners of new build low carbon generation projects with a long-term stable income stream in respect of the electricity they generate when their plant is in operation • the Capacity Market (CM) regime, which provides