Infrastructure is a broad term encompassing a wide range of facilities from schools, hospitals, roads and railway lines to wind, electricity, waste and water projects, oil and gas facilities, pipelines and processing plants. While infrastructure construction contracts have key provisions in common, there is no one standard form that fits all projects. Any standard form will need to be tailored to suit the specific issues and subject matter of the projects, the risk profile of the parties and comply with the legal jurisdiction of the contract and project location. A bespoke form of infrastructure construction contract may be preferable to an extensively amended standard form. Choice of contract The form of contract used for constructing an infrastructure project depends upon the: • procurement of the works, for instance: ◦ under a single construction contract with one contractor who assumes single point responsibility for the project, such as under an Engineering Procurement and Construction (EPC)/Turnkey contract ◦ under a single construction contract with one contractor whilst the employer retains some project risk ◦ under a PPP model

The parties involved in an infrastructure project will depend upon the nature of the project and how it is procured and financed. Below are typical parties involved in infrastructure projects. Employer The employer is the party who wants the infrastructure asset to be built and controls the procurement process. Examples of employers for infrastructure projects include: • government bodies procuring roads, rail networks, pipelines, schools, prisons, hospitals or energy projects • private companies procuring mining projects, oil and gas exploitation, energy projects or processing plants The employer usually creates a brief for the project, stipulating the required function and performance of the asset, and invites contractors to tender for the work. Following selection, the employer engages a contractor (or contractors) to design and construct the asset. The employer typically finances the project and pays the contractor. The employer is often, but not always, the person who owns the site upon which the asset is to be constructed. For project financed infrastructure projects, the parties and roles are slightly different. In a project finance structure, a Project Co (typically

Infrastructure procurement is the method by which the delivery of a facility is organised. This Practice Note focuses on the methods for organising the design, engineering and construction of a facility. For information on funding models, see Practice Note: Funding models for infrastructure. A range of factors will influence the decision of how best to procure an infrastructure facility. Factors influencing the procurement method Factors significant when deciding upon the form of procurement for an infrastructure project include: • the type of infrastructure project—eg mining, road, port, energy project • the complexity of the project—does it have process technology or involve multiple facilities? • who the owner is—eg public body using PPP or a Regulated Assest Base (RAB) model or private company experienced in managing works? • how the project is funded—by public money, debt or private investment? Lenders may require a particular form of procurement • the risk allocation between the parties—is single point responsibility for project risk required? • the price for the project—single point responsibility comes at a premium • the speed with which the owner wants

This Practice Note examines the main agreements involved in an infrastructure project. The project documents discussed below will not be relevant to every infrastructure project—the project structure, procurement method, financing model and nature of the project and parties will determine which project documents are required. For more details on the project parties referred to in this note, please see Practice Note: Infrastructure projects—parties. Note that the party referred to as ‘employer’ in this Practice Note would typically be the ‘Project Co’ under a project finance structured infrastructure project. Construction contract The construction contract is the agreement between the employer and the contractor for the design (to varying extents) and construction of the infrastructure facility. Depending upon the procurement method, there may be one construction contract for the whole project (such as an EPC/Turnkey contract) or multiple contracts with different contractors for multiple works packages (such as under EPCM procurement). The construction contract may be bespoke or based upon an industry standard form. For more information on infrastructure procurement and forms of construction contracts, see Practice Notes: Infrastructure

The global demand for public infrastructure, from roads and schools to energy projects, has lead to innovative ways of structuring the procurement and funding of infrastructure facilities. There are a myriad of possible project structures. A project’s structure depends upon factors including: • who the employer is (eg public body or private company or consortium) • the nature of the project (eg how complex it is, whether it relates to state owned assets) • if just facility design and construction is being procured • if facility operation and maintenance is also being procured • which party is securing the finance or providing investment for the project (eg is it a public body or a private consortium?) • who owns the facility during facility construction, operation and at the end of any operating term • who is entitled to the facility’s product or revenues Some infrastructure projects are entirely privately procured (such as some oil refineries, transport facilities and process plants). However, many are required and instructed by the public sector, who are increasingly involving private sector risk,

A copyright work is infringed when anyone other than its owner or licensor performs or authorises the performance of one of the 'restricted acts' set out in the Copyright, Designs and Patents Act 1988 without permission, such as copying, issuing copies to the public, renting or lending to the public, performing or playing in public, communicating to the public or making an adaptation. Infringement does not need to involve the complete work; any use of a 'substantial part' will suffice.

Infringement of a trade mark describes unauthorised use of a sign that conflicts with another party’s registered trade mark rights, typically in the course of trade, in a way that affects or is liable to affect the trade mark’s functions (especially indication of origin). In the UK, trade mark infringement is principally governed by the Trade Marks Act 1994 and interpreted through extensive case law, including decisions of the Court of Justice of the European Union up to the end of the Brexit transition period. In Ireland, it is governed by the Trade Marks Act 1996, aligned with EU trade mark law and jurisprudence. Key forms include use of an identical sign for identical goods or services; use of an identical or similar sign for identical or similar goods or services where there is a likelihood of confusion; and use of an identical or similar sign for dissimilar goods or services where the earlier mark has a reputation and the use takes unfair advantage of, or is detrimental to, that reputation. The concept and tests are broadly consistent across England & Wales, Scotland, Northern Ireland and Ireland, and underpin civil remedies such as injunctions, damages or an account of profits, delivery up and destruction.

IP analysis: Dr Robyn Trigg, senior knowledge lawyer and Matthew White, senior associate of Osborne Clarke discuss the Munich local division’s (LD) decision in Syngenta v Sumi Agro to include non-Unified Patent Court (UPC) territories in an infringement claim in light of the Court of Justice of the EU's decision on jurisdiction in BSH v Electrolux.

A procedure initiated by the EU Commission when it considers that a member state has failed to comply with its EU obligations. It seeks to bring the infringement to an end and is linked to a specific provision of the Treaties, secondary legislation or EU judgment.

EU designs This Practice Note considers the infringement of EU designs. The registered Community design (RCD) and the unregistered Community design (UCD), collectively referred to as ‘Community designs’, were brought into being under Regulation (EC) 6/2002. They are unitary design rights which cover the whole of the EU and can be enforced accordingly. In November 2022, the EU Commission adopted two proposals to modernise design legislation at an EU and national Member State level, to make the procedure to register designs at EU level cheaper and easier and to harmonise procedures between the EU and national systems. The primary package of legislation underpinning the reforms comprised the following legislation: • Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 amending Council Regulation (EC) 6/2002 on Community designs and repealing Commission Regulation (EC) 2246/2002 (the Amending Regulation) • Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October 2024 on the legal protection of designs (recast) (the Directive) The Amending Regulation reformed the unitary EU design

This Practice Note discusses infringement of UK registered and unregistered designs, ie: • UK registered designs (including re-registered designs and re-registered international designs) • UK unregistered design right (also known as ‘design right’) • supplementary unregistered design right (SUD) The designs regime in the UK is fairly complicated (especially following Brexit) and covers a number of different rights. As there is overlap between these different rights, it is possible for one product to be covered by more than one design right at a time. For more information about the interaction of the various design rights, see Practice Notes: UK registered and unregistered designs and Comparison tables for design protection available in the UK. The focus of the Practice Note is the civil infringement regime, but it also touches on criminal offences. For more information about criminal offences, see Practice Note: Designs—criminal offences. For more information about the strategic considerations to take into account when bringing or defending a claim for infringement of design rights in the UK, see Practice Note: Design disputes—a practical

The Copyright, Designs and Patents Act 1988 (CDPA 1988) gives the copyright owner exclusive rights in the UK to carry out various acts in relation to the copyright work. Activities set out in the CDPA 1988 carried out by those other than the copyright owner, without permission, may infringe the owner's exclusive rights.