This Q&A assumes that a commercial agreement between business entities is the subject of potential novation. Novation of one agreement into two agreements Novation occurs when A and B are party to an agreement and B 'transfers' its obligations and rights under the agreement to C, such that C can be said to 'step into the shoes' of B, with a resulting contractual relationship coming into effect between A and C. The effect of a novation is the extinction of the original contract, and its substitution with a new contract, under which the same rights and obligations are to be enjoyed and performed but by different parties, with the outgoing party released from all future liabilities under the contract. Parties to a novation will usually be the same

There is no requirement that all issues in a claim must be decided by reference to the same system of law. In very many cases, the court must apply one system of law to one set of issues and a different law to others. This situation very often arises, for example, where the issue is whether an act—such as agreement to a contract—purportedly done on behalf of a company, was authorised. Questions of actual authority will generally be decided by reference to the law of the country of the company’s incorporation. The question of the validity of a purported contract is generally decided by reference to the putative law of the contract. This may include questions of apparent authority. This can lead to multiple

Arbitral Tribunal’s jurisdiction Separability The Arbitral Tribunal can rule on its own jurisdiction, including any objections to the existence or validity of the arbitration agreement. In so doing, it will consider the following principles (Rule 26.1): • an arbitration agreement which is part of a contract is separable from the other terms of the contract; and • a decision that the contract is null and void will not automatically invalidate the arbitration agreement Jurisdictional challenge A party may raise a jurisdictional challenge even if it nominated the challenged arbitrator or requested the President of the AIAC Court to appoint or confirm the Arbitral Tribunal (Rule 26.4). The jurisdictional challenge can take two forms: • an allegation that the Arbitral Tribunal does not have jurisdiction; and • an allegation that the Arbitral Tribunal is acting beyond the scope of its authority Any allegation that the Arbitral Tribunal does not have jurisdiction must be raised no later than in (Rule 26.3): • the statement of defence; • where a counterclaim has

This week's edition of Banking and Finance weekly highlights includes: (1) the Supreme Court holds buyers entitled to recover loss of bargain damages under clause 14 of the NSF despite absence of repudiatory breach in the case of Great Asia Maritime Ltd v Orion Shipping; (2) the LMA publishes a practice note for assessment of pure play companies; and (3) the CMA publishes revised unfair contract terms guidance following consultation.

Schedule of amendments to the jct Construction Management Appointment 2016 The Contract comprises the completed Construction Management Appointment 2016 (CM/A 2016) published by the JCT subject to the following amendments: ARTICLES Article 1: Construction Manager’s obligations Article 1 Delete ‘the obligations set out in clause 2.1’ and substitute ‘its obligations and duties’. Article 3: Principal Designer Article 3 In the first line after ‘for the purposes of the CDM Regulations’, insert ‘and the Dutyholder Regulations’ Article 4: Principal Contractor Article 4 In the first line, after ‘for the purposes of the CDM Regulations’, insert ‘and the Dutyholder Regulations’At the end of Article 4 insert:‘The Contract Sum includes the Construction Manager’s price for fulfilling the duties of Principal Contractor.’ Article 6: Arbitration Article 6 Arbitration Delete Article 6 and insert: ‘All references to arbitration in this Contract are deleted.’ Article 8 Insert new Article 8 as follows: Article 8 [To be added on the face of the contract] ‘Schedule of Amendments The Employer and the Construction Manager agree that the modifications in the Schedule of Amendments attached hereto (as initialled by the parties) are incorporated into this Contract and the provisions

This Checklist identifies measures which can be taken, some during the procurement process and others during the course of project, to help to reduce the risk of disputes arising on construction projects. During the procurement process • Choose the right procurement route Ensure that the correct procurement route is used for the particular circumstances. For example, if the employer wishes to retain control over design or materials, then a traditional contract may be more appropriate than a design and build contract. However, if a quicker start on site is required, then design and build may be preferred. See Practice Note: Choosing the right procurement method—construction projects. • Use the correct pricing structure Choose the appropriate pricing structure. For example, if the employer is looking for costs certainty, then a lump sum contract will be a better option than a prime cost contract. If a lump sum contract is used, avoid including too many provisional sum items (which will undermine the desired costs certainty). See Practice Notes: Pricing structures in construction contracts and Provisional sums. • Beware of underbidding Employers

ARCHIVED: This archived Practice Note explores the competition implications of using agency as a commercial model. It was written with the previous Vertical Restraints Block Exemption Regulation 330/2010 and 2010 Guidelines in mind—these have been replaced by the Vertical Block Exemption Regulation 2022/720 (VBER 2022) and 2022 Guidelines on Vertical Restraints (2022 Guidelines) respectively. This Practice Note is not maintained and is for background information only. For an assessment of agency under Article 101 TFEU, the VBER 2022 and the 2022 Guidelines, please see the relevant sections within Introduction to the application of Article 101 TFEU to vertical agreements, The Vertical Block Exemption Regulation 2022/720 and Analysing vertical agreements outside the Vertical Block Exemption Regulation 2022/720 There are several ways in which a supplier can distribute its product. A supplier may: • distribute products or services itself • use a distributor, or • use an agent. In making this decision, a supplier will inevitably be influenced by a variety of commercial considerations. Alongside such commercial considerations, a supplier will also have to consider EU

On 26 June 2020, the Corporate Insolvency and Governance Act 2020 (CIGA 2020) inserted section 233B into the Insolvency Act 1986 (IA 1986). Section 233B places restrictions on so-called ‘ipso facto’ provisions in relation to contracts for the supply of goods or services. An ‘ipso facto’ provision allows a party to exercise contractual termination rights where a company enters into an insolvency or restructuring procedure. Under the new section 233B, a provision in a contract for the supply of goods or services ceases to have effect when a company becomes subject to an insolvency procedure if under the provision: • the contract or the supply would terminate because the company becomes subject to the insolvency procedure, or • the supplier would be entitled to terminate the contract or the supply, or do any other thing, because the company becomes subject to the insolvency procedure It is

Contractual claims There is no requirement that the agreement settling a contractual claim must be in a particular form; since the Employment Tribunals Act 1996 (ETA 1996) (under which the [Employment Tribunals] Extension of Jurisdiction (England and Wales) Order 1994, SI 1994/1623 was re-enacted) does not include any prohibition against contracting out, the position regarding settlement is the same as with comparable proceedings in the civil courts; there is no need for such a contract to be drawn up by a conciliation officer or to be in the form of a settlement agreement. However, settlement of a contractual claim must be contained in a binding contract, ie there must be offer and acceptance, an intention to create legal relations and certainty (there is no requirement for consideration in Scots contract law). For further information, see: Formation and interpretation—overview and the Practice Notes referred to in that overview. Statutory

In construction, a collateral warranty is ancillary to either a building contract, sub-contract or a consultant’s appointment. The warranty creates a contractual link where there would not normally be one, thereby enabling a third party, such as a purchaser or tenant occupying or buying recently completed buildings, to have a direct contractual relationship with a construction team member. An employer will also often receive the benefit of a collateral warranty from sub-contractors and consultants, where their appointment has been novated to the contractor, as it would otherwise not have a direct contractual link to those members of the construction team. The beneficiary can then rely upon the undertakings or covenants contained in the warranty in order to bring an action in contract against the warranting party (the warrantor) if there has been a breach. In

This Q&A assumes that: • the question relates to the use of a signature in the context of commercial negotiations • the question does not relate to inter-parties correspondence in the course of litigation Contracts can be formed in one of three ways: • orally • by conduct, or • ‘under hand’ (in writing) For more information on contract formation, see: Formation and interpretation—overview. Where a contract is required to be made in writing, it may be subject to compliance with certain formalities. For example, a contract for the sale of land, or any interest in land must comply with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, and must be in writing, contain or incorporate all of the terms expressly agreed by

For the purposes of this Q&A we have assumed this is an otherwise enforceable business to business commercial contract with an effective date which is retrospective from the actual date. We also assume that such document is a simple contract and not a deed, and that no specific laws or legislation apply to the specific subject matter of the contract. The date on which an agreement is intended to take effect can be different to the date on which it is signed. Unless otherwise provided, an agreement takes effect once signed by all parties. If the effective date is not the date on which the document is signed by all the parties this should be made clear in the agreement itself in a separate commencement clause. See the Drafting Notes to Precedent: Commencement and term clause and Practice Note: Executing documents—deeds and simple contracts for more information. Consideration too should be given to the general