Commercial analysis: When people buy or consume orange juice few will think about what is left after the juice has been extracted. The Commercial Court dealt with a dispute between a Greek company and a Brazilian company concerning a product being the orange pulp wash. There were many issues concerning the non-acceptance of the product by the defendant which the claimant had agreed to sell. The issues between the parties included, in addition to the main allegation of non-acceptance, termination of the contract with claims and counter-claims as to repudiatory breach. In the end the court held that there had been no agreed price for specific consignments of the product. This is important because it emphasises that failing to agree a price in a contract for the sale of goods and, instead, providing that the price was to be agreed constitutes no more than that so that there is no enforceable contract. Written by Fred Philpott, barrister of Gough Square Chambers.

Construction analysis: In this article, we look back on the key developments in construction law that emerged in the first half of 2025, and look ahead to what may come in the remainder of the year.

This Practice Note examines the nature of joint names insurance, the distinction between joint and composite insurance and its impact on construction insurance contracts generally. A common requirement of construction contracts is to execute insurance in joint names. This means the interests of the various parties are covered under a single policy. Under the heading of joint names insurance we will refer to: • joint insurance, and • composite insurance (often referred to as co-insurance) Joint insurance—definition Insurance which under a single policy covers the identical interests of two or more parties in the subject-matter of the insurance, for example, spouses' interests in a marital home. A breach by one party of the policy conditions for example by fraud, non-disclosure, breach of condition or breach of warranty, may affect the rights of the other insured. In joint insurance, the respective insureds’ rights stand and fall together. That is to say, they have undivided interests in the subject-matter. If the policy is truly joint in that the interest on the part of one or

A–B | E–H | I–N | O–P | Q–V. CE marking The CE (Conformité Européene—meaning European Conformity) mark is a mandatory marking that certain products, including medical devices, must bear to indicate the device conforms with all relevant regulation of medical devices before it can be lawfully sold within the EEA. It: • shows that the manufacturer has checked that these products meet EU safety, health or environmental requirements • is an indicator of a product’s compliance with EU legislation • allows the free movement of products within the EEA The equivalent of the CE mark within Great Britain (GB) following Brexit is the UKCA mark, which has been available for medical devices placed on the GB market since 1 January 2021, although the CE mark continues to be required under EU legislation in Northern Ireland. The CE mark will continue to be recognised for existing ‘legacy’ devices on the GB market for varying timelines beyond 30 June 2023, in accordance with transitional provisions, provided certain conditions are met. See related terms: conformity assessment, declaration of conformity, Notified

Cash-generating asset types Overview In principle, any cash-generating asset can be securitised. Even an art collection could be securitised on the assumption it can be sold to generate cash (indeed, the city of Detroit considered doing just that with the Detroit Institute of Art's collection). Securitisations however tend to relate to a pool of more conventional assets that embed a debt payment obligation (such as loans) and/or which otherwise generate predictable cash-flows (such as a mature stable business). In other words, securitsations tend to be backed by financial assets. Typical financial assets that are regularly securitised are examined in outline in the following sections, and include: • residential mortgage loans • commercial mortgage loans • credit cards and other unsecured consumer loans • auto loans, and • trade receivables Examples of more exotic securitisations have included: • F1 (Formula One) rights • cinema revenue • royalty payments, and • weather risk EU and UK Securitisation Regulations EU Securitisation Regulation In September 2015, the European Commission published the Action Plan on Building

Name of organisation [insert name of organisation] Name of role holder [insert name] Reports to [insert name] Role type (Full time/part time/contractor) [insert] If a contractor role, length of contract [insert] Primary location [insert location] Date role commenced [insert date] Length of probation period [insert] End

This Practice Note considers common issues that may arise out of insolvency in the construction industry. It considers the effect and relevance of adjudication as a recovery method where insolvency may be imminent, and contains some practical tips on steps that can be taken in the event of a party’s insolvency. This Practice Note contains general tips and advice and, as such, will not be applicable to every insolvency situation experienced in a construction context. This Practice Note should be considered carefully alongside the relevant facts of each case. Introduction to the construction industry and construction procurement There are often a large number of participants with different roles on any one construction project. A non-exhaustive list of those participants is set out below: • employer—the person or entity that wants the construction project to go ahead and commissions other professionals to carry out the work. The employer can be a public or private-sector entity and is also often called ‘the client’

Construction analysis: The Technology and Construction Court (TCC) dismissed a sub-contractor’s claim for damages against an employer under section 1 of the Contracts (Rights of Third Parties) Act 1999. The claim related to sums that, on the sub-contractor’s case, the employer should have paid under the project bank account provisions of the main contract (which was based on the NEC4 Engineering and Construction Contract). However, the court held that only ‘Named Suppliers’ within the NEC4 project bank account regime could fall within the relevant class of third party beneficiaries; here, the claimant had not achieved that status, because the necessary formalities had never been completed. The decision underlines the importance of complying with the formal mechanics of NEC4 project bank account arrangements and demonstrates the limits of third party rights.

EU Law analysis: The Court of Justice of the European Union held that the formal validity of a contract assigning exclusive rights to use works protected by copyright is a contractual matter under Regulation (EC) 593/2008, Rome I, even when an alleged infringer challenges the assignment in infringement proceedings. A requirement as to form concerns the parties’ expression of consent to be bound, including where it appears in national copyright law. The applicable formal validity rules must be identified under Rome I, including Article 11, which may recognise a contract as formally valid under more than one potentially applicable law. The infringement claim remains subject to Article 8(1) of Regulation (EC) 864/2007 (Rome II), which applies the law of the country for which protection is claimed. The court did not decide which national law governed the assignment, whether BT acquired the rights or whether IU infringed them.

Arbitration analysis: In a successful appeal under section 69 of the Arbitration Act 1996 (AA 1996), the Commercial Court overturned a London Maritime Arbitrators Association (LMAA) tribunal's interpretation of a Saleform 2012 ship sale contract. The tribunal had held that the buyer had until midnight in Hawaii, the westernmost relevant US time zone, to complete payment because the contract defined 'Banking Days' by reference to banks being open in a number of jurisdictions, including the US. Paul Stanley KC, sitting as a Deputy High Court Judge, held that the tribunal had erred in law. The definition of 'Banking Days' identified which calendar days counted for the purpose of calculating time but did not determine when a payment obligation expired. Payment was required by midnight in Norway, where the escrow arrangement and payment mechanism were to be performed. The decision provides important guidance on the construction of Saleform payment provisions and the relationship between banking day definitions and time-zone issues.

Dispute Resolution analysis: The claimant applied for summary judgment on its claim for the repayment of money advanced to the defendant under a contract for the supply of goods. The defendant was unable to deliver the goods in question, asserting that this was as a result of a force majeure event, and that the repayment clause in question did not accordingly apply. For the purposes of the summary judgment application, it was assumed that a force majeure event had occurred, and valid notice given pursuant to the terms of the contract. The court held that, on a proper construction of the terms of the contract, the obligation was for the seller to repay the advance payment if the product was not delivered when due (subject to any extension) for any reason whatsoever. In particular, as a result of the broad and all inclusive language of the repayment clause, the obligation to repay was not affected by any force majeure event, despite there being some cross-referencing between the force majeure clause and the repayment clause. In fact, the court held that the cross-referencing, if not completely surplusage, was demonstrating that it would be open to the parties to agree a different course if they so chose in light of a force majeure event occurring (understandable in light of such a stark and wide-ranging phrase as ‘if for any reason whatsoever…the product has not been delivered…’) but that they had not done so. Written by Georgia Whiting, barrister, 4 King’s Bench Walk.

Arbitration analysis: A fundamental aspect of an arbitration agreement is that it is independent of and separate from the main/underlying contract, even if it finds place as a term in the contract itself. This principle is settled law in most global jurisdictions, and also under Indian arbitration law. Most recently, the High Court of Bombay reiterated the doctrine of separability, recognising the obligation of a court to refer parties to arbitration and honour the arbitration agreement executed between them. In doing so, the court examined the grounds for invocation of its writ jurisdiction in a contractual dispute (with an instrumentality of the State), and observed that while this remedy may be available, it is limited to a very narrow scope, viz, to challenge palpably arbitrary actions of the State. In the facts of this case however, the court held that the dispute between the parties was arbitrable (being a purely contractual issue) and did not warrant interference through exercise of the court’s writ jurisdiction. The court also observed that the arbitration clause is an autonomous, self-contained agreement (independent of the underlying agreement), which survives termination of the underlying contract. Accordingly, the dispute was held arbitrable, and the writ petition filed by EBIX Cash, dismissed. Written by Shaneen Parikh, partner and head—International Arbitration; Sanskriti Sidana, principal associate; and Yashasvi Raj, associate at Cyril Amarchand Mangaldas.