What does this Practice Note cover? This Practice Note discusses: • the common categories of disputes that arise from derivative contracts • relevant case law relating to those categories • tips for practitioners when drafting derivative contracts on avoiding future disputes, and • modes of dispute resolution available for resolving derivatives contract disputes The nature, main types and main uses of financial derivatives are summarised in Practice Notes: The nature of financial derivatives and Types of derivatives. Derivative contracts frequently give rise to disputes between the parties that enter into them. Common categories of derivative disputes Derivatives can give rise to a range of disputes. In common with any scenario in which parties negotiate, enter into and perform (or fail to perform) a contract, claims may arise in relation to: • negligent misstatement, deceit or breach of section 2 of the Misrepresentation Act 1967 (MA 1967) in relation to false or misleading statements made prior to entry into the contract (for more information, see: Misrepresentation, misstatement and other claims in banking and finance—overview) • breach

European Union targets to reduce the amount of waste sent to landfill, and technology innovation, led to the development of new waste infrastructure being developed in the UK. In general, there are two main contracting structures for these projects: • waste Private Finance Initiative (PFI) and Public-Private Partnerships (PPP) infrastructure contracts which may be subject to the Procurement Act 2023 (PA 2023) where they involve a covered procurement by a contracting authority, and • merchant waste infrastructure contracts A merchant contract is a legally binding agreement between a business (the merchant) and often an acquiring bank. Merchant waste projects are types of project where the sponsoring body ( or ‘acquiring bank’) is a private company such as the Green Investment Group. They may include projects which use private, specialist fuel supply such as refuse derived fuel, commercial and industrial waste and waste wood. This Practice Note focuses on merchant waste infrastructure contracts. For information about waste PFI/PPP projects, see Practice Note: Waste projects—waste PFI/PPP infrastructure projects. For background information on waste projects

This Practice Note covers how to initiate an alternative dispute resolution (ADR) process. It considers the situation where the parties are or are not bound by an ADR clause in a contract, and if they are, whether the ADR clause specifies how the ADR process is to be initiated. Are the parties bound by an ADR clause? If the dispute between the parties arises out of a contract, the contract may contain a ‘dispute resolution clause’ or an ‘ADR clause’ which requires the parties to use a particular type or types of ADR process to resolve any dispute before resorting to litigation or arbitration. For information on the different types of ADR, see Practice Note: Which form of ADR? For information on the different types of dispute resolution clause, see Practice Note: Types of dispute resolution clauses—litigation, mediation, multi-tier, hybrid and carve-out clauses. Where there is an ADR clause, it is important that you follow the precise procedures set out in the clause, including when and how to initiate the ADR. If there is any ambiguity

This Practice Note explains what partnering is, its key features and the advantages of taking this approach to a construction project. It also looks at the most commonly used forms of partnering contract and issues that the parties need to take into account in deciding whether to adopt this approach. What is partnering? In the 1990s, the Latham and Egan reports highlighted the inefficiencies caused by the adversarial nature of relationships in the UK construction industry and advocated the development of longer term relationships to improve performance and reduce costs. As a result, the concept of partnering has developed. Partnering is not, in itself, a method of procurement. The term refers to the approach the parties take to procurement and how they work together and manage the completion of projects. Partnering places great weight on establishing collaborative working arrangements and achieving continuous improvement in the delivery of projects. Partnering relationships are based on the underlying principles of trust, openness and co-operation and aim to eliminate the traditional adversarial culture. Partnering has traditionally been more widely adopted in public sector construction

Historically, the main treatment route for waste in the UK has been landfill, primarily due to the availability of suitable sites created by past mineral extraction. However, since the mid-1990s, use of landfill sites has been changing, as the potential impact of waste management on climate change has become recognised and legislation has made landfill less attractive. These developments have, in turn, helped drive the development of waste to energy plants, which is about taking waste and turning it into a usable form of energy. This waste to energy can include energy outputs such as electricity, heat and commodities such as transport fuels or natural gas. Many plants are now being built with energy generation, in addition to waste management, being a key part of their function. Each year the UK produces significant volumes of waste. Government data shows it is estimated that the UK generated around 32.6 million tonnes of commercial and industrial waste in 2023, a reduction from 40.4 million tonnes in 2020. Household waste was over 25 million

Background The Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (the Regulations) SI 2010/2960 apply to the sale and marketing of 'timeshare contracts'—a contract of a duration of more than one year under which a consumer, for consideration, acquires the right to use one or more overnight accommodation for more than one period of occupation (including boats and caravans). The Regulations only apply to contracts between a 'trader' and 'consumer'. A 'trader' is defined as a person acting for the purposes relating to that person's trade, business, craft or profession or anyone acting in the name or on behalf of such a person. This includes contracting parties or agents for contracting parties. Traders are under an obligation to comply with the Regulations and failure to do so would constitute a criminal offence (see below) Misselling Offences Pre-contractual key information SI 2010/2960, Regs 12–14 set out the key information which must be provided before a trader enters into a contract with a consumer. These include requirements relating to format in which

This Practice Note sets out when and how parties can seek to limit or exclude liability for misrepresentations by reference to section 3 of the Misrepresentation Act 1967 (MA 1967) and the reasonableness test under section 11 of the Unfair Contract Terms Act 1977 (UCTA 1977). Note: as from 1 October 2015, UCTA 1977 applies only in respect of business-to-business contracts; for consumer contracts, see instead sections 61–76 of the Consumer Rights Act 2015 (CRA 2015). For guidance on when a party may rescind a contract or recover damages for a misrepresentation, see Practice Notes: • Misrepresentation—damages as a remedy • Misrepresentation—rescission as a remedy For guidance on the related issues of: • entire agreement clauses and their use in limiting or excluding liability for misrepresentation—see Practice Note: Contract interpretation—entire agreement clauses • non-reliance clauses to exclude or limit liability for misrepresentation and the concept of ‘contractual estoppel’—see Practice Note: Contractual estoppel What are exclusion clauses for misrepresentation? It is not uncommon (in substantial and complex contracts it is usual)

This Practice Note considers the Third Parties (Rights Against Insurers) Act 2010 (TP(RAI)A 2010) and the Third Parties (Rights Against Insurers) Act 1930 (TP(RAI)A 1930), which may assist a party to a construction contract to make a claim against another party’s insurer directly, where the defaulting party has become insolvent. It refers to claims made by an employer against a contractor/consultant, but the same principles apply equally to claims made by other parties involved in a construction project (and parties to any other sort of contract). Common law position At common law it is not possible for a third party to claim directly against another party's insurer. An insurance contract is personal between the policyholder and the insurer, for example a consultant's professional indemnity (PI) policy is personal between the consultant and its insurer. In the event of a claim, at common law the employer cannot claim directly under the PI policy against the consultant's insurer—the employer would have to prove its claim against the consultant, and then the consultant would be indemnified

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note provides background reading on concessions contracts procurement prior to the introduction of the Concession Contracts Regulations 2016, SI 2016/273, which came into force on 18 April 2016, implementing Directive 2014/23/EU and introducing a new regime for the procurement of works concessions and service concessions. This Practice Note states the law prior to 18 April 2016 and is not maintained. It is for background information only. For more information on the current regime, see Practice Note: Introduction to concession contracts procurement—pre-PA 2023 [Archived]. What is a concession contract? A concession contract is an agreement between a contracting authority and suppliers (typically private companies) where suppliers are given the right to exploit works or services provided for their own commercial gain. Under concession contracts, suppliers either receive payment for those services solely through third party sources (usually users of the service they are providing, ie the general public) or partly through payment from the contracting authority along with income received from

This Practice Note provides practical guidance on the execution of documents by overseas companies, primarily when execution takes place after 1 October 2009 in accordance with the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009, SI 2009/1917. In this Practice Note it is assumed the contract is in writing. We have produced a collection that is a comprehensive, interactive resource to help users identify and work through the concepts and common issues when executing documents. Each section or phase includes practical guidance, precedent clauses and Q&As relevant to that section. For more information, see: Execution collection. The law relating to overseas companies The execution of documents by overseas companies is governed by the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009 (OC(EDRC)R 2009), SI 2009/1917. These regulations apply (with modifications) to those provisions in the Companies Act 2006 (CA 2006) relating to company contracts and the formalities of doing business in the UK to companies incorporated outside the UK. OC(EDRC)R 2009, SI 2009/1917, reg 4 applies and modifies CA 2006, ss 43–44 and 46 to overseas

Despite the development of sophisticated procurement methods, programming and project management software packages, construction projects will still overrun and become delayed. Any delay means costs are incurred. This Practice Note examines the delay damages mechanisms in place to protect an employer in the event of delay, and the relevant clauses of the FIDIC contracts and some of the other standard form contracts used in the energy sector relating to delay damages. See also Practice Notes: Delay and disruption in construction projects and Time and money claims. The importance of time in energy projects Within construction and energy contract documents, extensive provision is made for the concept of time, particularly relating to fixing a completion date. Construction contracts almost always include delay damages (also known as liquidated damages or liquidated and ascertained damages (LADs)). The underlying principle is that damages are payable by the contractor to the employer in the event of certain specified breaches of contract. Usually, the breach relates to late completion of the works, however it could also relate to performance

This Q&A assumes that the indemnity is found in a fully enforceable business to business contract, and which is not subject to specific industry or sector regulation. One of the advantages of an indemnity is that it gives rise to a contractual right to payment to compensate or reimburse the indemnified party without necessarily needing to bring a damages claim. This right is often reinforced by expressing that an indemnifying party is required to pay indemnified amounts ‘on demand’. In this regard, an indemnity is like a debt, particularly where the indemnified amount is in respect of ‘liquidated damages’ and so is fixed and ascertainable by the parties at the time of the agreement. However, the position is not so clear where indemnified amounts are ‘unliquidated’ and not so easily determined. There has been much discussion around whether an indemnity is a ‘debt’ or a ‘damages’ claim. A debt claim arises