The issue of which party is responsible for design and how this risk is apportioned is central to all construction contracts. EPC contracts resemble design and build contracts insofar as they involve single-point responsibility for supply of an asset. However, a design and build contract will involve a design that has been generated by a third-party engineer or architect, although the contractor may bear some responsibility for that design—for example, in some jurisdictions it may be obliged to warn the employer of defects in the design, even though the design was prepared by a third party. Under an EPC contract, the general position is that, subject to the requirements of the employer and project-specific concerns, a contractor carries out the bulk of design work for a project and, consequently, carries the majority of the design risk. The essence of the EPC contract is that the contractor will deliver a complete facility to the employer, who need only turn the key for the facility to become operational. This Practice Note looks at how this arrangement

ARCHIVED: This Precedent has been archived and is not maintained. SIAC ARBITRATION NO. [ ] OF 2015 IN THE MATTER OF AN ARBITRATION BETWEEN Parties 1 WEIPA RESOURCES LIMITED Claimant AND 2 SELANGOR RESOURCES SDN BHD Respondent 1 The Claimant, Weipa Resources Limited (Claimant) is a company incorporated in the British Virgin Islands, with its registered address at P.O. Box 1234, Charlotte Street, Tortola, British Virgin Islands. 2 The respondent, Selangor Resources Sdn Bhd (Respondent) is a company incorporated in Malaysia, with its registered address at #20-02, 500 Federal Plaza, Petaling Jaya, Selangor. 3 By an agreement in writing entered into on or around 15 August 2014 between the Respondent on the one hand and the Claimant on the other (‘the Contract’), the Claimant agreed to purchase and the Respondent agreed to sell 20,000 metric tonnes (plus or minus 5% at the Claimant’s option) of delayed coking petroleum sponge coke grade low sulphur (the ‘Product’). The governing law of the Contract is the law of Aleutia. 4 A copy of the Contract is attached hereto, at Annex SOC-1. 5 Pursuant to clause

This Agreement is made on [insert date or leave date blank] Parties 1 [Insert Employer’s name] whose registered office is at [insert Employer’s address], company registration number [insert Employer’s company number] (‘Employer’); and 2 [Insert Employee’s name] of [insert Employee’s address] (‘you’) Recitals: (A) [You have been employed by the Employer[ or the Group Companies] since [insert date employment started] OR You were employed by the Employer and/or the Group Companies from [insert start date] to [insert Termination Date][, latterly] ] under [a contract of employment OR service agreement] with the Employer dated [insert contract date] (Employment Contract). (B) [You are currently pursuing a claim in the employment tribunal against the Employer[ and [insert details of any other parties to the relevant tribunal claims]] under claim number[s] [insert tribunal claim number(s)] (Tribunal Claim).] (C) [You are currently pursuing a claim in the High Court against the Employer[ and [insert details of any other parties to the relevant High Court claims]] under claim number[s] [insert High Court claim number(s)] (High Court Claim).] (D) [You are currently pursuing a claim in the County Court against the Employer[ and [insert details of

Date [_______________________________] Parties 1 [Insert Employer] (Company registration number [insert number]) of [insert registered office address] (the 'Employer'); and 2 [Insert Contractor] (Company registration number [insert number]) of [insert registered office address] (the 'Contractor'). Recitals (A) By a contract dated [insert date] (the 'Contract') the Employer has appointed the Contractor to carry out [insert brief description of the works] (the 'Works') in connection with [insert brief description of the project] (the 'Project'). (B) In consideration of the Employer agreeing to make payment to the Contractor in respect of the plant and/or materials identified in the Schedule to this Deed (the 'Plant/Materials') prior to delivery to site and/or incorporation in the Works, the Contractor has agreed to enter into this Deed. (C) This Deed is supplemental to the Contract. This Deed hereby witnesses as follows: 1 The Contractor warrants to the Employer that: 1.1 legal title to and property in the Plant/Materials is vested absolutely in the Contractor; 1.2 the Plant/Materials are free from all third party liens, charges and other encumbrances; 1.3 the Plant/Materials are stored at the premises identified in the Schedule to this Deed and have been set apart from all other plant and/or materials

Please read this Order Form and our Agreement carefully before proceeding. Our Agreement is comprised of this Order Form, the Master SaaS Terms and the other documents incorporated into our Agreement as described in the Master SaaS Terms. By [executing this Order Form OR [clicking ‘Accept’]] you accept our Agreement on behalf of the Customer indicated in this Order Form as a legally binding contract with the Supplier (as defined in this Order Form). [You represent and warrant that you have all necessary capacity and authority to enter into our Agreement on behalf of the Customer as a legally binding contract with the Supplier in all applicable jurisdictions. If you do not have such capacity or authority or do not wish to accept this Agreement on behalf of the Customer please select the

This Q&A assumes the parties are commercial entities agreeing terms on a business-to-business basis. The courts’ approach to interpretation General principles and rules of contract interpretation have been developed by a considerable body of case law. There is no simple set of rules to follow in respect of how terms may be construed and interpreted (as much will depend on the individual facts of the case), but five principles of interpretation have been used by the courts, as formulated by Lord Hoffmann in 1998 in the leading case of Investors Compensation Scheme v West Bromwich Building Society: • it is an objective test as to what a reasonable person, having all the background knowledge reasonably available, would have understood the contract to mean at the time of contracting • account can be taken of background knowledge and matrix of fact, where such is relevant • previous negotiations and subjective intent are excluded (with a few exceptions—eg rectification cases) • the meaning of

A deed is a specific form of written instrument required for certain transactions. Deeds must be executed in accordance with statutory formalities that go beyond simple signature in order for the document to be valid and enforceable. Two other key features of deeds that distinguish them from simple contracts are: • deeds are enforceable irrespective of the lack of consideration in contrast with simple contracts, which are formed pursuant to the contract law principle that requires valuable consideration to be given for the promises being made, and • the limitation period for claims made in connection with deeds is 12 years compared with the usual limitation period for breach of contract, which is six years from the date on which the cause of action accrued The form of execution for a deed will vary depending upon the type of legal person that is executing the deed (eg an individual, a company, an attorney). The drafting notes in Precedent:

The requirements for variation of a deed It was formerly a rule of common law that contracts entered into by way of deed could only be varied by deed. This conflicted with an equitable rule that allowed variation to a deed to be made by way of a simple contract (whether in writing or orally). As a result of section 49 of the Senior Courts Act 1981, which provides that equity prevails in any conflict with the common law, variations to deeds may be made by simple contract. However, it will be necessary to consider the existing status of the deed document, the nature of the proposed amendment and the impact which the amendment will have on either the party entitled or the party liable under the deed. If a document is required by law to be made by deed, any document that amends operative parts of that document must also be made by deed. Otherwise, a deed can be varied by simple

The Arbitration Act 1996 (AA 1996) makes provisions for both international and domestic arbitration proceedings in England and Wales. Under AA 1996, an arbitration commences with the service of a notice requiring arbitration which essentially requires the other party to comply with their obligations under the arbitration agreement. In Glencore v PT Tera, the Commercial Court held that: ‘In circumstances where a claim and a counterclaim arise from a single set of facts giving rise to a balance of accounts or netting-off under a contract, a reference to ‘claims’ and to ‘all disputes arising under the contract’ in notices of appointment of an arbitrator will ordinarily suffice to interrupt the running of time in respect of the counterclaim for the purposes of s 14(4) Arbitration Act 1996, and does so in this case.’ This decision shows that in circumstances such as these, a court may accept

Perpetual licence Many people assume that the term ‘perpetual’ would be given its natural meaning of never ending when used in a contract. However in the relatively recent case of BMS Computer Solutions v AB Agri, it was held that the word 'perpetual' in a software licence can have different meanings depending on the circumstances. It could mean: • never ending, ie incapable of being bought to an end, or • operating without a specific limit of time (ie of indefinite duration) until either party exercised their rights set out in the contract to terminate the agreement In BMS, when considering the meaning of the word ‘perpetual’ in a given context, the court held that in that particular circumstance: ‘… it can mean

The general position is that a contract for the sale of land has to be in writing by reason of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 and that all the terms must be included in the written agreement. That does not mean that there is no scope for the implication of terms as was made clear in the case of Renewal Leeds Ltd v Lowry Properties Ltd. In that case the contract included an overage clause which entitled the vendor to a share of profits above a certain figure on the development of the land. The trigger for payment was the sale of the final residential unit. The purchaser sought to avoid payment by delaying the sale of the final few units. The vendor argued that a term should be implied requiring the developer to complete and sell all the houses as soon as reasonably practicable and not to sterilise the last house so as

Unlike real property, where a covenant in a lease will become binding on the successors and assigns upon the purchase of the asset (ie a house or land), an agreement under English law relating to personal property, such as trade marks, cannot do so. To attempt to solve this problem, coexistence agreements may be used most usually where the fields of activity of each party are completely different. Certainly, under English contract law, the rules relating to privity of contract mean that a successor will not be bound by what his/her predecessor may have agreed with a third party. The predecessor, however, will remain bound by the original agreement. Therefore, if a successor requires any breach by the third party to be addressed, they must pursue the matter through the chain of agreements back to the predecessor and third party. Invariably, in an effort to ‘bind’ the successor/assign,