WR assisted Gersemi Asset Management with investment firm license
We are proud to announce that we have assisted Gersemi Asset Management AS with obtaining its licence as an investment firm. Gersemi Asset Management is founded and led by Joakim Hannisdahl. Hannisdahl has been ranked the number one shipping equity analyst globally by Bloomberg for several consecutive years.
Ten years as the industry´s most attractive employer
For ten years in a row, law students have ranked Wikborg Rein as the preferred law firm to work for, making it the most attractive employer in the industry.
Russia sanctions: further US and UK designations, expansion of US authorities, UK announces ban on Russian-origin diamonds, copper, aluminium and nickel
On 19 May 2023, coinciding with the first day of the G7 Summit in Hiroshima, both the US and the UK announced several new sanctions designations. In addition, the US has expanded sanctions authorities targeting certain sectors of the Russian economy and banned export of architecture and engineering services to Russia, and the UK has announced coming bans on Russian diamonds, copper, aluminium and nickel.
EU adopts Moldova sanctions framework, US expands Sudan sanctions regime
In recent weeks, the EU has established a new sanctions framework in response to the situation in Moldova, and the US has expanded the scope of its Sudan sanctions regime.
Wikborg Rein assisting Viking Venture with its investment in Onix AS
We are proud to announce that we have assisted Viking Venture AS and Viking Venture 30 AS in connection with an investment in Onix AS, a SaaS company based in Stavanger. Onix' business model is to develop and sell software solutions for equipment owners, inspectors and suppliers.
Amendments to the Market Abuse Regulation (MAR) on 1 June 2023
On June 1, 2023, certain amendments are being made to the Market Abuse Regulation ("MAR") as implemented in Norway. The amendments are caused by the enactment of the EU SME Growth Market Regulation (2019/2115).
Recent developments in UK sanctions on Russia
In recent weeks, the UK has expanded on its existing trade restrictions on Russia, added further designations to the consolidated sanctions list, published and updated various sanctions related guidance documents, imposed trust services bans in respect of all persons already subject to asset freeze measures and published its Economic Crime Plan for 2023-2026.
Wikborg Rein assisting Norse Atlantic in subsequent offering and uplisting
We have assisted Norse Atlantic ASA ("Norse") with a successful "repair offering" of shares and subsequent uplisting of the company's shares the Oslo Børs market Euronext Expand.
Singapore courts clarify the law governing arbitrability and the arbitration agreement
The Singapore Court of Appeal (the "SGCA") recently established in Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 that the law of the arbitration agreement will, in first instance, govern the arbitrability of a dispute. The judgment also confirms that in the absence of an express choice of law governing the arbitration agreement, the governing law of the main contract shall apply – the SGCA applied a three-stage test in reaching its decision, providing guidance as to when Singapore courts should find the governing law of the main contract will apply.
Fraud unravelling all – case update on High Court of Hong Kong approach to stays in arbitration
The High Court of Hong Kong has ruled that a party seeking a stay of proceedings in favour of arbitration must demonstrate at least a prima facie case that an arbitration agreement exists. This was in the case of Haller v Vestey International and CMC (overturned on other grounds on appeal), where the Plaintiff had argued that the tripartite agreement was a forgery. If a party cannot demonstrate this, the court may refuse to grant a stay and resolve the issue itself.
EU Emissions Trading System applies for shipping as from 1 January 2024
The EU Emissions Trading System (EU ETS) has been reformed to include maritime emissions as from 1 January 2024.
The battle of copyright in the AI-era
Artificial intelligence, such as ChatGPT and GPT-4, is challenging the established state of the law. There are currently multiple ongoing law suits which should interest intellectual property lawyers.
Wikborg Rein on board Statsraad Lehmkuhl
This week, during One Ocean Week, the main focus has been on sustainable use of the ocean and many people have travelled to Bergen to attend important conferences.
Paving the way after the Energy Commission's report
The Energy Commission has asked for extraordinary measures to reach our climate targets and to ensure that ample access to renewable power still will constitute a competitive advantage for Norwegian industry. How Norway will achieve massive development of renewable energy in order to realise both emissions cut and new green industry, was the topic when we invited to a seminar at the National Museum.
One Ocean Week in Bergen
On 15 April Statsraad Lehmkuhl finally returned to its hometown Bergen.
Transaction tips from our competition team: Ex-post review of non-notifiable mergers
When we think about competition law in M&A, we often jump straight to considering merger control and whether a transaction might need notifying to one or more competition authorities. If notifications are not required, for example because the parties do not satisfy relevant jurisdictional (e.g., turnover) thresholds, then in nearly all cases this provides legal certainty that a transaction can close without a competition authority having an opportunity to review the deal.
Wikborg Rein plays key role in development of operationally complex German LNG terminal
The London team advised Deutsche ReGas, the operator of Germany's Deutsche Ostsee LNG Terminal in Lubmin, on all marine related aspects of the Terminal, including the charters of an FSRU, FSU and three shuttle tankers. The Project was officially launched earlier this year, having obtained all of the required permits and achieving first gas into the grid.
Proposed amendments to the Norwegian Security Act – expansion of the FDI rules
On Friday 31 March, the Government submitted a bill proposing amendments to the Norwegian Security Act. The proposed changes may mean that far more transactions will be subject to FDI screening, and changes in the procedural rules may have a major impact on deals, not least with respect to deal timetable.
Launch of offshore wind tenders for Sørlige Nordsjø II and Utsira Nord
On the 29 March 2023, the Norwegian Government announced the opening of Norway's first offshore wind tenders in the areas Sørlige Nordsjø II and Utsira Nord.
Stopping assignment to an insurer: Dassault Aviation SA v Mitsui Sumitomo Insurance Co Ltd
How does a non-assignment clause fare against a "mandatory" transfer of rights to an insurer? Dassault vs Mitsui considered what is meant by an "involuntary transfer", and when it can be prohibited by a contractual provision.
Life Science & Pharma IP Litigation 2023
Wikborg Rein is a contributing firm to the Life Science & Pharma IP Litigation 2023 with Chambers and Partners.
Has the forum shop opened for business?
Here we consider a high profile procedural decision of the English Court of Appeal, which included commentary on the common law doctrine of forum non conveniens: Municipio de Mariana v (1) BHP Group (UK) LTD (2) BHP Group Ltd.
The International Women's Day 2023: – We need to get rid of gender stereotypes
In connection with the International Women’s Day, we have had a chat with our lawyers Hedvig Bugge Reiersen, Tonje Hagen Geiran, Xiaomin Qu and Camilla Perona Fjeldstad.
China: Long-awaited standard contract released and filing requirement added for transfer of personal information out of China
On 24 February 2023, the Cyber Administration of China ("CAC") issued measures containing a standard contract template for transfers of personal information, detailed guidelines including for a required impact assessment and a filing-requirement for transfers of personal information from China to other countries.
EU adopts tenth package of sanctions on Russia
Close to midnight on Friday 24 February, the Council reached a consensus on the tenth package of sanctions on Russia. The new sanctions coincided with the commemoration of one year since the full-scale invasion and war of aggression against Ukraine.
US and UK impose new sanctions on Russia
Earlier today, on 24 February 2023, one year after Russia's full scale invasion of Ukraine began, the US and the UK imposed further sanctions on Russia. As of yet, no consensus has been reached on the EU's tenth package of sanctions.
The Norwegian Supreme Court permits merger between Schibsted and Nettbil
In the Norwegian Supreme Court's first judgment in a merger control case, it has sided with the merging parties against the competition authority. Why?
The Thorco Lineage
The decision relates to an application pursuant to s.45 of the Arbitration Act 1996 for the determination of a point of law by the Court. The point related to the way in which the limitation sum under Article IV (5)(a) of the Hague Visby Rules ("HVR") is to be calculated where there is both physical damage and economic loss to the cargo.
Company with listed shares? – 4 things to consider before the annual general meeting
Companies with listed shares are required to publish notices of general meetings in due time prior to the meetings, and it is therefore important to start the planning well in advance.
Wikborg Rein top ranked in Chambers Global 2023
It is with great pleasure we can announce that we have again been top ranked in the annual guide Chambers Global 2023.
Form of Interim Remedies in English-Seated UNCITRAL arbitrations
In EGF v HVF and others [2022] EWHC 2470 (Comm), the English Commercial Court dismissed the claimant's procedural challenges pursuant to s.24 (power of the court to remove an arbitrator), 67 (lack of substantive jurisdiction) and 68(2)(b) (exceeding arbitral powers) of the Arbitration Act 1996. We weigh in on the procedural ruling which concerns the remedy of interim payments under the 2010 UNCITRAL Rules.
SPC manufacturing waiver has entered into force in Norway
Update on the implementation of the SPC manufacturing waiver for pharmaceutical manufacturers into Norwegian law.
Wikborg Rein 100 years young
We turn 100 years in 2023. In our anniversary year, we are celebrating our story and our devoted team as we look to the future at what is yet to come.
Safety first: The position on demurrage
The High Court has clarified when a shipowner may disregard charterers' voyage instructions without interrupting demurrage, in a decision which underlines the obligation on voyage charterers to choose safe ports and safe berths for the vessel to proceed to.
BIMCO Infectious or contagious diseases clause for time charter parties 2022
Infectious diseases can have significant implications on shipping operations. Those of us in the industry can easily think of vessels that have been quarantined, refused admission at a port or otherwise delayed, and the practical effect this has on the dealings between owners, charterers and others in the supply chain.
The year of sanctions – some lessons learnt
The massive and unprecedented sanctions imposed against Russia have required significant efforts to manage the risks and impact of sanctions, particularly in view of creative attempts to circumvent by some parties. In this article we explain why you should update your sanctions clause, and how to ensure that it is fit for purpose.
Limitation of liability in light of the MSC Flaminia (No.2) case
The right to limit liability for claims is a cornerstone and unique feature of maritime law. Limitation issues are a particularly important consideration in the aftermath of large scale casualties as the ability to limit liability may significantly reduce the financial exposure for a party and its insurers.
The 2023 revision of the Nordic Plan
The Nordic Marine Insurance Plan of 2013, version 2023, has recently been approved following negotiations between the Nordic shipowner associations and the Nordic Association of Marine Insurers.
Contracts for Difference in Shipping: The Zero-Emissions Catalyst?
Although more typically associated with the renewables space, Contracts for Difference (CfDs) are increasingly being considered as a key part of the puzzle in achieving a zero-emissions future in the shipping sector.
BIMCO completes its suite of CII, EEXI and ETS time charter clauses
BIMCO has recently published three new clauses which seek to balance Owners’ and Charterers’ respective interests under time charters in relation to the obligations imposed by the CII, EEXI and EU ETS.
ESG and the Chinese Shipping Industry
ESG has been developing for decades internationally, in particular in the West, but has not been as well known in mainland China until more recently. Now, however, ESG is increasingly seen as a political priority aligned with the goal of “common prosperity” and therefore firmly on the agenda of large Chinese companies. This includes many shipping companies, where it is also expected that China’s push within green shipping will lead to more mandatory ESG obligations being introduced.
Transfer of employee information outside of China under PIPL and the new Draft Standard Contract
The Cyberspace Administration of China has issued a draft standard contract for cross-border transfers of personal information out of China which will, if adopted, constitute a valid transfer mechanism under the Chinese Personal Information Protection Law. Both the transferring entity and the overseas recipient must still be aware of additional data protection requirements related to cross-border transfers, including reporting requirements.
The future of Lloyd’s Open Form
The Lloyd’s Open Form survives – but its future remains uncertain.
GENCON 2022 – BIMCO’s new flagship contract
On 25 October 2022, BIMCO published an updated version of GENCON, the most widely used dry bulk voyage charter party form worldwide. BIMCO also took the opportunity to update the accompanying CONGENBILL.
Four new partners from 2023
We are pleased to announce that Tine Elisabeth Vigmostad, Elise Johansen, Preben Milde Thorbjørnsen and Andreas K. Lund have been appointed partners in Wikborg Rein from 1. January 2023.
Norwegian Government Launches Tender Rules for Offshore Wind
On 6 December 2022 the Norwegian Ministry of Petroleum and Energy (the "Ministry") announced that it intends to open the offshore wind tenders for phase one of the Sørlige Nordsjø II area and for the Utsira Nord area in the first quarter of 2023, and published the proposed criteria and format for the tenders.
Dag Mjaaland in memoriam
We are sad to convey that our dear colleague Dag Mjaaland passed away suddenly and unexpectedly on 15 November, 67 years old. Dag had been with Wikborg Rein since 1997, and was a partner in the firm since 1999.
3 – Digital Markets Act: Mer rettferdige digitale markeder
EUs nye forordning om åpne og rettferdige markeder i den digitale sektoren, Digital Markets Act ("DMA"), har trådt i kraft i EU. I dag er det et fåtall store plattformer globalt som i stor grad påvirker rammeverket for innovasjon, forbrukervalg og konkurranse i digitale markeder. Enkelte særlig store plattformer fungerer som såkalte portvoktere ("gatekeepers"). Gjennom å fastlegge plikter og forbud for slike portvoktere, søker de nye reglene å sikre rettferdig konkurranse i digitale markeder og å gi brukere større valgfrihet. DMA gir også EU-kommisjonen hjemmel for å ilegge sanksjoner som er sterkt påvirket av de sanksjonene EU har på konkurranserettsområdet.
Med One Ocean Expedition fra Singapore til Jakarta: – En opplevelse for livet!
For våre medarbeidere Kamilla Hope Kleppenes og Ingrid Weltzien ble den eksotiske tokten med Statsraad Lehmkuhl i Sørøst-Asia noe de sent vil glemme. Les deres reisebrev og se de flotte bildene fra den fantastiske turen!
2 – Digital Services Act: Et tryggere digitalt rom
EUs nye forordning Digital Services Act søker å skape et tryggere digitalt rom for innbyggere og virksomheter. Forordningen skal legge til rette for en større grad av demokratisk kontroll og tilsyn av internettbaserte plattformer (online plattformer), og redusere risikoen for manipulasjon, feilinformasjon og ulovlig innhold.
Ready for One Ocean Expedition
On Saturday 29 October, Kamilla Hope Kleppenes and Ingrid Weltzien set sail towards Singapore, where they'll embark on Statsraad Lehmkuhl and learn more about the ocean's important role for a sustainable future.
New Guidelines and Recommendations on Data Protection at the Workplace
The Norwegian Data Protection Authority (Nw.: Datatilsynet) has recently published both updated guidelines on employees' whistleblowing and an interesting study on monitoring and control of employees' digital activities (both available only in Norwegian). Both these new initiatives relate to data protection at the workplace, and are relevant to all businesses.
Changes to the Norwegian Offshore Energy Act – one step closer
On 30 September 2022, the offshore energy sector got one step closer to the starting block, as the Government submitted a proposal for changes to the Norwegian Offshore Energy Act to the Norwegian Parliament (the Proposition).
1 - A Europe Fit for the Digital Age
The European Union has recently been active in terms of legislative developments relating to technology and digitalisation. News about Digital Services Act, Digital Markets Act, European Union's new Artificial Intelligence Act, Data Act and Data Governance Act are emerging frequently and there is a new development almost every week.
New Norwegian regulation applicable to vehicles
After several postponements, a new regulation applicable to vehicles comes into force on 1 October 2022 (the "Norwegian Car Regulation"). The new regulation implements the EU Regulations (EU) 2018/858 ("Motor Vehicle Regulation") and (EU) 2019/2144 ("General Safety Regulation") into Norwegian law. Among the changes are stricter requirements for approval of vehicles, and updated technical and safety requirements for vehicle type approvals.
Summary of the New US Climate Bill
After months of wrangling and negotiations, US Congress passed the Inflation Reduction Act of 2022 (the "IRA") last month. The bill contains ground-breaking climate change measures and is projected to lead to USD 370 billion in government investment in renewable energy and climate change programs in the next 10 years. These measures are likely to open significant business opportunities for companies operating in the renewable energy sector.
Green investments in ocean industries
The intersection between green investments and ocean industries continue to attract increased attention from investors, financiers and companies in search of new business opportunities.
Credit Information Act: new rules for credit assessments and processing of personal data
This article provides an overview of key issues in the new Credit Information Act which businesses must be aware of to ensure compliance with the new regulations.
MUR Shipping v RTI: "reasonable endeavours" in the age of sanctions
If a contract requires payment in a certain currency and, as a result of sanctions, payment cannot be made in that currency, does the obligation to use "reasonable endeavours" to overcome a force majeure event (such as payment issues relating to sanctions) require payment in a different currency? The English Commercial Court recently held that it does not.
Upcoming amendments to the shareholding disclosure obligations in Norway
On 8 April 2022, the Ministry of Finance proposed a long overdue draft bill (Prop. 83 LS) with several amendments to the rules regarding disclosure of large shareholdings (Nw.: flaggeplikt) in the Norwegian Securities Trading Act (STA) and Securities Trading Regulation (STR) to the Norwegian Parliament. The amended rules enter into force on 1 September 2022.
“Harrier” – the first beaching case heard by Norwegian courts ends with a six month prison sentence for the shipowner
In a recent decision, the Norwegian Supreme Court refused to hear an appeal from a Norwegian shipowner over the Court of Appeal’s decision, which upheld the District Court’s conviction and sentencing of the shipowner to six months in prison for participating in an attempt to illegally export the barge carrier “Harrier” from Norway for demolition at Gadani, Pakistan.
SHIPSALE 22—a familiar form in a new guise
On 21 April 2022 BIMCO released SHIPSALE 22, its new standard contract for sale/purchase of vessels.
War and warlike operations in a time of uncertainty
The outbreak of war can have serious consequences on charterparties of all kinds and it is therefore no surprise that the industry has developed several standard clauses to clarify the parties’ obligations in such uncertain times.
New technologies in aquaculture
New technology in aquaculture is enabling offshore farming and the increased use of closed cages. New regulations may trigger significant investments in the years to come, resulting in an increased demand for new building and supply services.
Progress towards a treaty on plastic pollution
In March of this year, the United Nations passed an historic resolution which may result in a legally binding treaty to combat plastic pollution in the oceans.
Russia’s invasion of Ukraine – force majeure and frustration – The English and Norwegian perspective
The invasion of Ukraine by Russia has caused untold human suffering, severe disruption to global trade and property damage. It has also led parties to closely examine contracts with a Russian connection to see if they can be suspended or terminated lawfully.
Status on China’s offshore wind power development
Mainland China has become the largest offshore wind market in the world. An overall industry chain has been established which encompasses complete offshore wind installation and operation, as well as maintenance and spare parts manufacturing, presenting an attractive market for both domestic and foreign companies.
Report on the safety of cruise traffic in Norwegian waters
In the spring of 2019, the cruise vessel “Viking Sky” suffered engine failure and almost grounded. Nearly three years later, a Norwegian Official Report (NOU 2022: 1) on how to reduce the risk of casualties within the cruise sector has been published.
BIMCO standard form refund guarantee for shipbuilding contracts
Refund Guarantees secure repayment to the buyer of the pre-delivery instalments paid under a shipbuilding contract (an “SBC”) in the event of termination of the SBC due to builder’s default or insolvency or the total loss of the ship under construction. Having the benefit of a refund guarantee is therefore of key importance to the buyer under a shipbuilding contract.
How to navigate China’s anti-sanctions laws amidst the sanctions against Russia
The sweeping sanctions implemented against Russia give renewed relevance to the Chinese countermeasures to foreign companies with operations in China or doing business with Chinese counterparties. Companies should tread carefully to avoid falling foul of Chinese legislation.
PRIDE – En menneskerett å være seg selv
I år er det 50 år siden homofili ble avkriminalisert i Norge. I juni markerer vi Pride i solidaritet over hele verden og i alle byene der Wikborg Rein har kontorer.
The EU ETS and Shipping – updates and unanswered questions
Since the European Commission on 14 July 2021 proposed to extend the scope of its Emissions Trading System (EU ETS) to include emissions from shipping, several stakeholders have evaluated, commented on and assessed the proposal. This article examines some of the most debated and uncertain aspects.
The EU Taxonomy in the maritime transport industry
In the maritime sector, several measures are needed in order to reduce emissions to the extent necessary, and the EU Commission approach this challenge by presenting a basket of measures, one of them being the EU Taxonomy. By setting harmonised criteria for determining whether an economic activity qualifies as environmentally sustainable, it is intended to incentivise the greening of the sector.
Legal challenges with cross border transportation of CO2
According to the report “Climate Change 2022: Mitigation of Climate Change”, published 4 April 2022, carbon capture and storage (CCS) is essential in order to reduce carbon dioxide (CO2) emissions and reach the climate goals. When establishing an international value chain for CCS, the industry will have to work within the international rules and framework. This article focuses on the restrictions on export of CO2 in the “London Dumping Regime”, especially the London Protocol.
Transition-linked financing: The transition to a greener shipping industry
A group of Nordic market participants have through the Green Shipping Programme produced a new set of Guidelines for Transition-Linked Financing (TLF) supporting the transition to net zero emissions in the shipping industry by 2050.
The green transition and support in the operational phase
The maritime sector has for many years been actively developing new technology which aims to ensure that the green transition and the climate goals can be achieved. The sector is now close to being ready to take the next steps. However, unless some form of public support is introduced for the operational phase, the transition will likely take more time than some may wish for.
Key aspects of the new FuelEU Maritime proposal
On 14 July 2021, the European Commission presented a package of proposals aimed at ensuring that the European Union achieves its goals of cutting greenhouse gas emissions by at least 55% by 2030. The proposals include, among other things, the new FuelEU Maritime initiative, specifically aimed at the shipping industry.
Line Coll will be the new Director of the Data Protection Authority
Our Partner and dear colleague Line Coll will be the new Director-General of the Norwegian Data Protection Authority. We are very proud and will miss her a lot!
Wikborg Rein awarded Law Firm of the Year 2022
We are delighted to announce that we have been named Norway's Law Firm of the Year 2022 by Chambers & Partners. This is a great recognition from our clients for the contributions by our lawyers to their projects and endeavours.
Russian countermeasures on intellectual property rights
Russia has announced and implemented several countermeasures against so-called "unfriendly states". Some of these countermeasures involve intellectual property rights (IPR), meaning that entities of so-called "unfriendly states" now face countermeasures limiting the protection of their IPR in Russia. Entities of such states that do not anticipate continuing to do business in Russia can expect to see their intellectual property utilised in Russia without compensation.
Wikborg Rein top ranked in Legal 500
We are pleased to announce that Wikborg Rein is once again ranked as Top Tier law firm by Legal 500 in their newly released 2022 guide to European law firms. Legal 500 is one of the leading international ranking agencies.
Women in law series: Eleanor Midwinter
In celebration of the International Women's Day on March 8th we’ve asked some of our female lawyers from across our international offices what it’s like being a woman in law today. Read our last interview with Eleanor Midwinter.
Women in law series: Ina Lutchmiah
In celebration of the International Women's Day on March 8th we’ve asked some of our female lawyers from across our international offices what it’s like being a woman in law today. Read our fourth interview – this time with Ina Lutchmiah.
Women in law series: Kjersti Borgen
In celebration of the International Women's Day on March 8th we’ve asked some of our female lawyers from across our international offices what it’s like being a woman in law today. Read our third interview with Kjersti Borgen, senior lawyer at Wikborg Rein's Oslo office.
Women in law Series: Therese Trulsen
In celebration of the International Women's Day on March 8th we’ve asked some of our female lawyers from across our international offices what it’s like being a woman in law today. This time we've talked to Therese Trulsen, senior lawyer and chief representative at our office in Shanghai.
Women in law series: Heidi Ann Vestvik-Bruknapp
In celebration of the International Women's Day on March 8th we’ve asked some of our female lawyers from across our international offices what it’s like being a woman in law today. Read our first interview with Heidi Ann Vestvik-Bruknapp, associate at Wikborg Rein's Bergen office and part of the firm's fisheries and aquaculture team.
Proposal for a Corporate Sustainability Due Diligence Directive: extensive due diligence requirements
On 23 February 2022, the European Commission adopted its proposal for a Corporate Sustainability Due Diligence Directive (the "CSDD Directive"). The proposal has been called a game-changer in the way companies operate their business activities throughout the global value chain, and sets out extensive sustainability due diligence requirements as well as introducing new corporate governance obligations for in-scope companies.
One step closer to kicking off the offshore wind adventure in Norway
On Wednesday, the Norwegian government presented its plans for realising the first phase of the commercial offshore wind adventure in Norway.
Progress for the realisation of the Unified Patent Court
Recent developments bring the new Unified Patent Court (UPC) closer to reality. This means that companies doing business in the EU should start considering whether they want to engage with the new UPC system or not.
Transfer of Personal Data and the Use of Google Analytics: Austrian Data Protection Authority's Decision
Austrian Data Protection Authority decided that the use of Google Analytics violates the transfer rules under the GDPR.
Key considerations when choosing a party-appointed valuation or quantum expert in arbitration
Arbitration often involves resolving complex and technical matters which call for specific knowledge or experience, including determining the value or quantum of a claim. Expert witnesses are often instructed by parties to do this through written statements and oral testimony before the arbitral tribunal. Generally, in most high value, large and/or complex arbitrations, the parties will benefit from having a party-appointed expert to assess quantum, or to rebut an opposing party’s assessment of quantum. In some instances, relying on experts will simply be a prerequisite to convince the tribunal. In this article, we discuss key considerations when appointing such an expert.
English courts supporting international arbitration
This article looks at the treatment of international arbitration agreements by the English courts, particularly at how the courts have upheld the decision of parties to resolve disputes through arbitration rather than through the courts.
London calling?
Enduring appeal of London arbitration for multinational parties unaffected by turbulent recent years for the UK.
Comparing the duration and cost of international arbitration
International arbitration as a method for resolving cross-border disputes continues to gain popularity. However, when considering which of the arbitral institutions’ rules to include in an arbitration agreement, there are two practical points to consider: (i) the likely duration and (ii) the likely cost of any arbitration.
Arbitration clauses – three rules of thumb for in-house counsel
With sufficient time and resources, an in-house counsel can ensure that each arbitration clause their organisation signs onto is carefully crafted and reviewed. But we recognize that time and resources are rarely sufficient and believe that these three rules of thumb can help ensure that arbitral clauses do not create an unacceptable level of risk.
Challenges to arbitral awards on the basis of ‘Serious Irregularity’
In this article we discuss challenges to arbitration awards in the context of alleged ‘serious irregularity’ in the award given by the arbitral tribunal. This was addressed in the recent decision by the Privy Council in London, on appeal from the courts of the Bahamas, in RAV Bahamas Ltd and another v Therapy Beach Club Incorporated [2021] UKPC 8.
Third time’s the charm: UK Supreme Court affirms orthodox approach to liquidated damages
In July 2021, the Supreme Court handed down a long awaited judgment in Triple Point Technology v PTT, overturning the earlier Court of Appeal decision and in doing so provided clarity on the applicability of a liquidated damages clause in circumstances where the contract has been terminated prior to its completion. The judgment also provided a helpful reminder of the correct interpretation of “negligence” when included in a limitation of liability clause.
Negotiating enforceable settlement
The referral of a dispute to arbitration does not mean parties have to be stuck on a straight track to a hearing with an award issued by the tribunal. Very often, arbitration can lead to or support parties in reaching a negotiated settlement in advance of any hearing or award. In some cases, commencing arbitration can be used as a strategy to encourage parties to negotiate. The fact of arbitral proceedings getting underway should certainly not lead parties to automatically forgo all hopes of settling the dispute.
Arbitral tribunal undertaking its own research
Can an arbitral tribunal undertake its own research? The answer is ‘ “it depends” – as is often the case in international arbitration. The question of whether a tribunal has gone beyond the scope of the arbitration will often arise in a challenge to the enforcement of an arbitral award.
Key aspects of FuelEU Maritime proposal
On 14 June 2021, the European Commission presented a package of proposals aimed at ensuring that the European Union achieves its goal of cutting greenhouse gas emissions by at least 55% by 2030. The proposals include, amongst other things, the new FuelEU Maritime initiative, specifically aimed at the shipping industry.
The EU ETS expands to shipping
One of the most talked about and controversial aspects of the EU’s proposed “Fit for 55” package is the European Commission’s proposal for a revised Emissions Trading System (EU ETS). This article examines the proposal and details its potential impact on the shipping industry.
Tiered dispute resolution clauses – problems in drafting
There are various forms of tiered dispute resolution clauses requiring negotiation and/or mediation before arbitration, and difficulties may arise when the procedure is not followed. A recent English case, NWA and Other v NVF and Others [2021] EWHC 2666, has added further insight to the interpretation of these clauses and the need for clarity in their drafting.
Shipping Boom on the Norwegian stock market
After a period of strong headwinds, the shipping industry sets course for historic annual results. High demand for goods combined with a lack of supply and a lean world fleet has driven freight rates and shipping shares through the roof.
Always on demand? – Shanghai Shipyard Co Ltd v Reignwood International Investment (Group) Company Limited
On 23 July 2021, in a decision with potentially far-reaching implications for the shipbuilding industry and for guarantees generally, the Court of Appeal issued a judgment addressing what makes a guarantee issued by an entity other than a financial institution a “demand guarantee" rather than a “see to it guarantee”.
Limitation of liability for collisions claims in respect of wreck removal expenses
A recent decision in the Norwegian proceedings relating to the collision between the Norwegian navy frigate “Helge Ingstad” and the oil tanker “Sola TS” saw Hordaland District Court weigh in on a question that has been the subject of international debate for some time. The court held that the Norwegian state’s indemnity claim against the owners of the “TS Sola” in respect of the costs of the removal of the wreck of the “Helge Ingstad” is subject to the limitation amount for claims in respect of property damage and not the separate and higher limitation amount for claims in respect of clean-up and wreck removal.
Are lawyers’ notes from crew interviews legally privileged?
In another recent decision in the Norwegian proceedings relating to the collision between the Norwegian navy frigate “Helge Ingstad” and the oil tanker “Sola TS”, the Gulating Court of Appeal has held (LG-2021-115658) that notes taken by lawyers from crew interviews were legally privileged and such privilege had not been waived by disclosure in the proceedings of a report referencing content from those notes.
The right to claim deprivation interest in pollution incidents in Norway
Norwegian authorities normally respond to an oil spill or other type of pollution along the Norwegian coast by initiating a state-led operation, often involving significant costs. A recent amendment to the Norwegian Pollution Act has created a statutory legal basis for the authorities, when claiming reimbursement from the owners, to include a claim for so-called deprivation interest as from the time the relevant costs were incurred.
Eternal Bliss did not last forever for shipowners Court of Appeal overturns decision narrowing scope of demurrage
The High Court decision last year in The Eternal Bliss changed the landscape for owners and voyage charterers by establishing that damages in excess of demurrage can be claimed by owners, even where the only breach was the failure to load and discharge within the laytime. Demurrage had previously been thought to be a complete code for damages caused by that breach. Judgment has now been handed down in the Court of Appeal overturning that decision.
Whose liability is it anyway? Apache UK Investment Limited v Esso Exploration and Production UK Limited (2021) EWHC 128
On the 17 May 2021, the Commercial Court clarified the proper interpretation of the Petroleum Act 1998, dealing specifically with the extent of previous licensees’ liability in decommissioning programmes.
High Court provides further guidance on implied terms under English law
In the shipping and offshore industry, guarantees are frequently given as security for a legal promise for performance of a separate or primary contract. However, as guarantees are themselves a form of security, do they also contain an implied term that security cannot be sought for breaches of their provisions? That question was recently answered by the High Court in CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm).
Equipment leasing in the maritime industry – protection of legal title
Companies leasing out equipment for use on board vessels need to be mindful of the legal risks and challenges in protecting legal title to their equipment. In this article we have highlighted potential threats and possible measures of mitigation.
Decarbonisation in shipping – the EU proposals
On 14 July 2021 the European Commission published its “Fit for 55” package setting out various legislative proposals to enable the EU to reach its objective to reduce emissions by at least 55% by 2030 (as compared to 1990 levels).
MARPOL Annex VI – EEXI AND CII – can your contracts cope?
The IMO recently introduced amendments to MARPOL Annex VI aimed at improving the technical and operational efficiencies of all types of ships. These amendments are expected to enter into force as soon as 1 January 2023. The amendments introduce the Energy Efficiency Existing Ship Index (EEXI), a technical measure concerned with ship design, and the Carbon Intensity Indicator (CII), an operational measure concerned with a ship’s trading and operation.
State aid for hydrogen
A revised State aid framework should help boost the demand and supply of hydrogen in Europe. The European Commission set out this promise in the EU’s hydrogen strategy for a climate-neutral Europe, adopted in July last year. Has the Commission delivered on its promises?
Marine spatial conflicts: Offshore wind – Increased pressure on Norway’s marine areas
Norway’s large sea areas remain one of the country’s most important advantages in the global transition to a greener and more sustainable society. Solving the global climate challenges includes investments in measures such as ocean-based transport, restoration of marine ecosystems, seafood, storage of carbon in the ocean floor and ocean-based renewable energy. While these activities can help reduce the carbon footprint, they may also lead to increased activity in the sea areas already used for other types of (traditional) marine activities.
Public consultation on offshore wind power in Norway
In July 2019, the Norwegian Ministry of Petroleum and Energy (the “Ministry”) presented a proposal to open up certain areas offshore Norway for the development and construction of offshore wind farms. In this article we will provide an overview of certain characteristics of those areas as well as the proposed new regulations related to offshore renewable energy production.
Debt Capital Financing of offshore wind projects
Offshore wind projects will play an important role in meeting the world’s need and demand for sustainable energy going forward. Offshore wind projects make an attractive investment, due to, among other factors, their stable and heavily regulated nature, as well as their green profile and the possibility of long term cash flows.
From East Anglia to East Asia: A commercial perspective on the development of offshore wind in Taiwan and further afield
Alex Hookway, a Senior Lawyer in Wikborg Rein's Renewables Team, sat down with Sam Stout, Managing Director of Colebrook Offshore1 in London. They discussed the current status of offshore wind in the Asia-Pacific, the (sometimes painful) lessons learned from the early wind farms in Taiwan and further afield, and what's next for wind energy in the region.
How to manage regulatory risks in your joint venture agreement
Several large companies have recently teamed up in consortiums, announcing their interest in the development of Norway’s first large scale offshore wind farms in the Utsira Nord and Sørlige Nordsjø II areas in the North Sea. At the same time, the Norwegian energy authorities are carrying out a revision of the Offshore Energy Act, the Offshore Energy Act Regulations, and the guidelines for the offshore wind concession process, leaving many unanswered questions in the regulatory landscape.
Offshore wind projects in China: Key legal issues
For those who are interested in the Chinese offshore wind market, it is crucial to understand that the Chinese regulatory framework for this sector is complicated and comprehensive, covering the whole value chain.
State Aid for Offshore Wind
There is no doubt that offshore wind needs considerable public support in order to be financially viable. However, such support must first pass the threshold of EEA state aid law. How can state aid for offshore wind be granted legally, and what sources of state aid are available in Norway and the EU?
Post-Trump: The Winds of Change Opportunities for offshore wind farm installation vessels in the US
Despite the USA having what has been described as a “globally significant wind resource”, the development of the offshore wind industry in the United States has had something of a slow start, with only 5 electricity generating turbines currently in operation in US offshore waters with generating capacity of only around 30 MW.
Floating offshore wind: How to structure technology development
Technology development within offshore wind, particularly floating offshore wind, is expected to continue at a significant pace in the coming years. How could such technology development be structured, and what should the involved parties be aware of and take into consideration?
Charterparties for wind turbine installation vessels
An important part of every offshore wind project is the installation of wind turbines. Installation of modern bottom-fixed offshore wind parks require specialised turbine installation vessels (WTIVs) to perform impressive lifts in challenging conditions. Currently, there is limited number of vessels available for these projects, in particular as wind parks are developed further offshore and with larger turbines. The charters for WTIVs are often fixed a couple of years prior to the project execution and accordingly, negotiation of the charterparties for these vessels is critical for a project’s success.
Auctions as an allocation tool – how auctions can be tailored to reduce uncertainty
Norway is in the process of opening up for establishment of offshore wind production. One option is the use of auctions to allocate exclusive rights for this purpose. Industry players have raised concerns in particular due to uncertain prerequisites for these auctions. In this article, we point out that uncertainty might be mitigated by tailoring the auctions, and we give examples on how uncertainty can be reduced.
Coming of age, what to do with mature wind farms? extend, repower or decommission?
At a time when many nations are expecting an explosion of new leasing rounds to meet the gap left by the phasing out of fossil fuels (and in some jurisdictions, nuclear power), it might seem odd to consider the ‘end of life’ options for wind farms – whether lifetime extension, repowering or decommissioning. However, wind turbines have an operational lifetime of 20-25 years. For the original offshore developments in the North Sea, this may be shorter as technology, fabrication and construction knowledge has developed rapidly over the past 20 years.
Offshore wind power purchase agreements
Power purchase agreements (PPAs) often play a crucial role in project financing of renewable energy projects, including offshore wind. Having a PPA in place to secure the revenue stream for a renewable energy project is often a necessity to attract banks and other project financiers. While a PPA may make an offshore wind project bankable, there are several considerations to be made in the drafting of a PPA. In this article we take a closer look at some important questions surrounding those considerations.
Distribution of congestion revenue from interconnectors
Offshore renewable energy plays a key role in achieving the EU’s climate and energy goals set out in the European Green Deal. The EU aims to reduce greenhouse gas emissions by 55% by 2030, and to become the first carbon-neutral continent by 2050.
New Draft Decision's Potential Impact on GDPR's Strict Consent Rules
The Irish Data Protection Commissioner's new draft decision has received significant attention. The decision relates to the legal basis of processing under the GDPR and it is criticised by many for giving entities a by-pass from GDPR's strict rules. In this article, Wikborg Rein looks into the draft decision and evaluates what it might mean for the application of the GDPR in the future.
Facebook to Delete Personal Data of More Than One Billion Users
Last week, Facebook announced their decision to stop using the face recognition technology. Facebook's decision comes against the backdrop of intensifying concerns around data privacy and Facebook's practices, and it is expected to affect more than one billion users. Wikborg Rein reviews the details of Facebook's decision and its potential consequences in this brief article.
Marine transportation solutions and applications of hydrogen – contractual considerations for hydrogen projects and the hydrogen value chain
The hydrogen industry is undergoing rapid development, in particular due to the ever-increasing focus on reducing the carbon footprint and emissions across all businesses and industries. Hydrogen has a wide range of applications, and projects of various scales are being developed to cater for the varying local- and end-users’ needs. As a result, a variety of contractual frameworks and structures will likely emerge – both on a project-by-project basis and regarding the hydrogen value chain as a whole.
How does the EU Taxonomy regulate hydrogen?
In order to meet the EU’s climate and energy targets for 2030, and reach the objectives of the European Green Deal, the EU deemed it vital to direct investments toward sustainable projects and activities. To achieve this, the Commission needed a common language and clear definition of “sustainable” – they in turn created a common classification system for sustainable economic activities, or an “EU Taxonomy”.
The hydrogen puzzle – EU regulatory initiatives in the pipeline
Following the adoption of the EU Hydrogen Strategy and the EU Energy System Integration Strategy in July 2020, the European Commission has worked on various regulatory initiatives, as announced in the respective strategies, to facilitate the development of a well-functioning hydrogen market.
Hydrogen essential to a clean energy future: Rising to the challenge
The energy industry is rising to the challenge of a hydrogen economy. For many, it is essential for a clean energy future. Some three quarters (73%) of senior energy professionals say Paris Agreement targets will not be possible without a large-scale hydrogen economy and a similar share (74%), say there is no way to achieve a zero-carbon economy by 2050 without hydrogen.
The prospects in Brazil for low-carbon hydrogen
Brazil has an increased focus on low-carbon hydrogen. Brazil’s National Hydrogen Policy, adopted in July 2021, identifies the development of a low-carbon hydrogen industry as a national priority.
Greening the grey – carbon capture and storage agreements
For countries not endowed with abundant renewable energy sources, Carbon Capture and Storage (CCS) may be the way (at least in the short term) to transition to a low carbon hydrogen economy. CCS projects have been referred to as “moon landings”. One may presume that, along with some of the technology, the underlying business and contracts are also something akin to rocket science. However, a closer look reveals major similarities to the gas sales business and gas sales agreements rather than something more ground breaking.
Hydrogen as a maritime fuel and the shipping industry’s need for transition
In the coming decades, the shipping industry will have to make a transition to sustainable fuels and energy carriers. Hydrogen has been highlighted as one of the means to achieve this transition, and in Norway several interesting projects are currently ongoing.
Hydrogen sales and purchase contracts – high-value issues to keep in mind
With its ample hydropower, developing wind power, and gas reserves, Norway is particularly well placed to produce both green hydrogen and blue hydrogen. Although the potential is obvious and there is a clear will to develop it further, the hydrogen industry is still in early stages. At present, relatively few supply contracts have been entered into and few clear market principles have developed. As such, the hydrogen industry faces similar questions in respect of the contractual regulation as the natural gas industry faced in its early phase.
Important steps when developing hydrogen projects
Hydrogen will play a key role in decarbonising the global economy. But how do you successfully develop your business to reach your projected target?
IPCEI Hydrogen – kick-starting Europe’s hydrogen revolution
High costs and low demand have hindered the creation of an emissions-free hydrogen market. With IPCEI Hydrogen, the EU’s new gigantic push to bring together public and private hydrogen investments, the hydrogen market may finally have its much needed kick-start.
Chapter about Fintech in Norway published in Global Legal Insights
Ole Andenæs, Snorre Nordmo and Stina Tveiten has contributed to the Norwegian chapter in "Global Legal Insights - Fintech 2021", which provides an overview of the latest trends and regulatory framework for fintech in Norway.
Fit for 55-pakken under European Green Deal
14. juli lanserte EU-kommisjonen «Fit for 55», en omfattende forslagspakke med energi- og klimalover med 13 forslag som blant annet sikter på avkarbonisering av flere områder innenfor europeisk næringsliv.
Ship recycling – ongoing liabilities for shipowners
The English Court of Appeal has in a recent judgment (Hamida Begum v Maran (UK) Limited [2021] EWCA Civ 326) upheld the High Court’s decision to decline to strike out a claim against a UK ship manager for the death of a shipyard worker in Bangladesh following a demolition sale.
Deep sea mining – preparing the ground
The Norwegian Government has initiated a process for the potential opening up of deep sea mining on the Norwegian continental shelf. What is the legal framework for such developments and how does the Norwegian Government foresee that this process will be conducted?
The shipbuilder’s interpellation right – Obtaining clarity in a delayed shipbuilding project
Delay in shipbuilding projects may ultimately grant the buyer a cancellation right, thereby giving rise to both legal and economic risks for the shipbuilder. Under the circumstances, the builder’s “interpellation” right can help mitigate those risks and provide clarity for both parties.
Updated BIMCO contracts for towage and barge hire
BIMCO has recently published new editions of the widely used TOWHIRE, TOWCON and BARGEHIRE contract forms, which were last revised in 2008. The amendments are intended to improve legal clarity and bring the contracts more in line with current commercial practice.
CO2 transportation and storage agreements – is it rocket science?
Carbon Capture and Storage (CCS) projects have been referred to as “moon landings”. One may presume that, along with some of the technology, the underlying business and contracts are also something akin to rocket science. However, a closer look reveals major similarities to the gas sales business and gas sales agreements rather than something more ground breaking.
ASBAGASVOY 2020 – a new voyage charter for gas tankers
BIMCO and the Association of Ship Brokers & Agents (“ASBA”) recently released a dedicated gas tanker voyage charterparty, the ASBAGASVOY 2020. The form is a based on the well-established ASBATANKVOY form for product tankers and has been developed in response to the growth of the gas spot market.
Shipbuilding Notice of defects – possible traps for the buyer and the builder
A Norwegian Supreme Court decision from last year provides guidance on the importance of a buyer giving notice of defects in due time, as well as the importance of a builder reserving its rights before entering into discussions on the merits of those defects.
Important clarifications for offshore wind in Norway
On June 8th, the Norwegian Minister for Petroleum and Energy, Tina Bru, announced that the first licenses for development of offshore wind in Norway may be granted in early 2022.
BIMCO ASVTIME
BIMCO has today expanded their suite of offshore contracts by launching the new standard time charter for accommodation support vessels. Wikborg Rein participated in BIMCO's drafting committee for the form and set out an overview of its key features below.
How to handle bilingual contracts?
Companies that operate internationally may often face demands for bilingual contracts in foreign jurisdictions.
What you need to know about the new UK sanctions regime post-Brexit
As the Brexit transition period has recently come to an end, we highlight below some key differences brought about by the UK's new sanctions regime and what you need to know about the new regime.
Partner in the One Ocean Expedition
Wikborg Rein is proud to partner and fully support the United Nations Decade of Ocean Science for Sustainable Development in the project: The One Ocean Expedition.
Arbitrator bias and the duty of disclosure: Supreme Court adopts a pragmatic approach
When parties agree in a contract that any disputes arising from that contract will be referred to arbitration, they hope that any tribunal that will be appointed will be free of bias and approach the matter fairly. One of the long running debates, particularly in specialist fields where there has traditionally been a limited pool of arbitrators, is to what extent arbitrators need to disclose previous relationships with the parties to an arbitration or their lawyers.
The London Dumping Regime – taking a lead in developing a legal framework for ocean fertilization activities
Contracting Parties to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (the London Convention) and the 1996 London Protocol have taken steps to address potential harm to the marine environment from the evaluation of new experimental technologies designed to reduce carbon dioxide in the atmosphere.
“Fisktrans” – withdrawal of wreck removal order following consideration of proportionality
In a recent administrative appeal decision, the Norwegian Coastal Administration (the “NCA”) Head Office reversed the wreck removal order issued by the NCA Emergency Response Centre in respect of the “Fisktrans” which sank in Northern Norway in 2017. The decision confirms that the pollution authorities shall consider the proportionality of the measures ordered when exercising their administrative discretion.
Navigating floating LNG projects – hints and tips for owners
In this article, we explore some of the key issues facing vessel owners when bidding for and negotiating floating LNG projects, whether for FLNG units (floating liquefaction) or FSRUs (floating storage and regasification)
International enforcement of arbitral awards
The New York Convention allows for recognition and enforcement of international arbitral awards in most states. In this article, we outline the main steps of the process of enforcing international arbitral awards, adding our practical insight on the peculiarities of specific jurisdictions.
BIMCO: SHIPLEASE
September 2020 has seen the recent publication of the new “SHIPLEASE” indicative term sheet by the Baltic and International Maritime Council (BIMCO). SHIPLEASE has been drafted to provide the first set of standard terms and conditions for sale and leaseback transactions of second-hand vessels.
“Full City” – 5 key takeaways from the limitation fund proceedings
In November 2020, the limitation fund established following the grounding of the “Full City” near Langesund, Norway, in 2009 was finally distributed. The limitation fund proceedings, which ran in parallel with the proceedings concerning the limitation fund established following the “Server” casualty in 2007, have helped clarify several procedural aspects of limitation funds.
When is the law applying to an arbitration agreement not the same as the law applying to the contract?
In Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38 the UK Supreme Court has (by a 3:2 majority) recently clarified that, in the absence of an express choice of law, the law governing the validity and scope of the arbitration agreement is that of the seat of the arbitration and not the law applicable to the contract.
Offshore floating wind turbines and deepwater fish farms – different frameworks for success
The regulatory framework that exists within the shipping and offshore industries is long established. Whilst the existing framework effectively extends to also encompass the offshore floating wind sector in Norway, the same cannot be said for deepwater fish farms.
Marine liquid hydrogen value chain – considerations
A complete liquid hydrogen value chain is currently in development on the west coast of Norway. What are the key issues affecting the development of such a large scale cooperation project?
Imposing conditions to contractual consent – is it reasonable?
In the recent decision in Apache North Sea Ltd v INEOS FPS Ltd [2020] EWHC 2081 (Comm), the Commercial Court has provided guidance on the interpretation of consent provisions in a contract where such consent is not to be “unreasonably withheld”.
The High North Report – an "ocean of opportunities"?
On 27 November 2020 the Norwegian government presented a white paper on the High North with the title "People, opportunities and Norwegian interests in the Arctic" (the "High North Report"). The report is the first white paper on the Northern region in nine years, and sets out the government's policy on foreign relations, climate change and environmental concerns, community development, business, infrastructure, transport and safety.
First day, first case
Patrick Oware had heard rumours that you get your required procedural experience quickly in Wikborg Rein, but he had never thought it would go this fast.
We are eco-lighthouse certified!
At Wikborg Rein, we have a greater focus on what we as a company can do to take care of the environment. It is therefore exciting to announce that we are now eco-lighthouse certified.
From evening assistant to Associate
From evening assistant and receptionist to trainee and from trainee to writing his master's. Christian A. Cederkvist has been a part of Wikborg Rein from the very beginning of his law studies and in January 2021 he will start as Associate with us.
Pro bono work led to family reunion
Every year the Norwegian immigration authorities process a number of applications that result in rejection or expulsion. When all rights to appeal has been exhausted, few options remain for a party with limited financial resources to have the decision re-examined. Our pro bono work and collaboration with the Norwegian Organisation for Asylum Seekers (NOAS ), an organisation working to advance asylum seekers' rights in Norway, allows Wikborg Rein to assist in the re-examination of cases often involving court proceedings.
Norwegian Supreme Court clarifies time bar rules applicable to direct actions against P&I insurers
In its decision in the “Mineral Libin” (HR-2020-257-A) the Norwegian Supreme Court provides clarification on the mandatory scope of the Insurance Contract Act and the application of the general Norwegian Time Bar Act in direct actions against P&I insurers under Norwegian law.
SUPPLYTIME – new special tasks annexes
For decades, SUPPLYTIME has been the industry standard time charter for offshore support vessels. However, in recognition of its broader usage within the offshore and renewables sector as a whole, BIMCO has recently published four new annexes for special tasks that can be incorporated into this popular standard contract.
Bareboat registration in Norway – a new initiative to retain Norway’s position as a leading maritime nation
To meet the existing and future needs of the maritime industry in Norway, the Norwegian ship registers (NIS and NOR) have finally decided to permit bareboat registration in and out of the Norwegian flag.
Passage plans – fail to prepare, prepare to fail
The CMA CGM Libra [2020] EWCA Civ 293 (Alize 1954 and CMA CGM SA v Allianz Elementar Versicherungs AG and 16 Ors) The Court of Appeal of England & Wales has recently endorsed the first-instance Admiralty Court decision that a failure to properly prepare a passage plan or to properly mark-up navigational charts to reflect navigational dangers, may amount to a failure to exercise due diligence to make the vessel seaworthy, leading to an actionable fault defence for cargo interests who had refused to contribute to general average.
A hard-fought victory for the rule of law
The multi-billion dollar Gazprom-Naftogaz settlement shows how persistent resort to legal means can defeat apparently superior opponent.
Arbitration in Norway – benefits of NOMA vs. ad hoc arbitration
Arbitration is the most commonly used dispute resolution mechanism in shipping and offshore contracts. Very often however, parties tend to spend little or no effort reflecting on the type of arbitration solution chosen, i.e. ad hoc vs. institutional arbitration. In this article, we will highlight the benefits of agreeing to arbitration under the rules of NOMA – the Nordic Offshore and Maritime Arbitration Association vs. ad hoc arbitration.
Limitation of liability – the English courts consider the meaning of the terms “operator” and “manager”
The Stema Barge II [2020] EWHC 1294 This judgment, handed down in the Admiralty Court on 22 May 2020, looks in detail at the scope and meaning of the 1976 Limitation Convention, in particular the meaning of the phrase “the operator of the ship” in Article 1(2). In determining the meaning of “operator”, it was necessary for the court to also examine the meaning of “manager”. This is the first time that the English courts have been called upon to consider this issue.
When are e-mails to your team and your in-house lawyers disclosable?
In The Civil Aviation Authority v R (Jet2.Com Ltd, [2020] EWCA Civ 35), the Court of Appeal in London has recently given judgment on a dispute about disclosure of some of Civil Aviation Authority’s (“CAA’s”) internal documents and e-mails which CAA claimed were privileged due to the inclusion of their in-house lawyers as addressees. The judgment covered many points, but of particular interest was its finding on how legal advice privilege applies to multi-addressee emails.
Environmental protests against rigs in Norwegian waters
Rig owners and operators will be all too familiar with environmental protests against rigs where climate activists attempt to disrupt drilling activities. With increased global attention on the environment and global warming, the frequency of such protests would appear to be increasing.
Shipyards’ right of retention for non-payment
Under the Norwegian Maritime Code, a shipyard which constructs or repairs a ship may retain physical possession of that ship until it has been paid by the relevant shipowner for works done. This retention right creates a security or lien over the vessel which has priority over secured creditors, and may therefore be of great value to a shipyard in incentivising owners to pay.
Electrification projects on the Norwegian continental shelf – legal challenges and opportunities
Electrification of the Norwegian continental shelf (“NCS”) will significantly reduce Norway’s carbon emissions, and we expect to see a future increase in investments in electrification projects in the coming years. However, important clarifications from the Norwegian authorities are required in order to establish more predictability for such high value offshore grid investments.
Should public authorities be entitled to higher interest when claiming clean-up costs under the Pollution Control Act?
What happens if a vessel has an accident involving oil spill and public authorities clean up, but wait almost three years before claiming the clean-up costs from the shipowner? Can the public authorities claim interest, and if so, from when and at what rate?
Norway opens offshore areas for wind power development
Friday 12 June 2020 marked an important milestone for Norway as an energy nation, as it was decided by royal decree that two areas offshore Norway shall be opened up for renewable energy production at sea. This means that from 1 January 2021 it will be possible to apply to obtain a license for development and construction of offshore wind power projects in the two areas known as Utsira Nord and Sørlige Nordsjø II outside the Norwegian coast line.
Price in mandatory offer – provisional rules
The Norwegian Ministry of Finance has issued a provisional regulation for the determination of offer price in mandatory offers where the mandatory offer obligation is triggered by an equity contribution to a company in severe financial distress.
US amends North Korean Sanctions Regulations, imposes secondary sanctions
Last week, the US Department of the Treasury's Office of Foreign Assets Control amended the North Korea Sanctions Regulations (31 CFR part 510, "the Regulations"). The revised Regulations implement the Treasury-administered provisions of the North Korea Sanctions and Policy Enhancement Act as amended by Countering America's Adversaries Through Sanctions Act and the National Defense Authorization Act for Fiscal Year 2020. The amendments include certain secondary sanctions, and took effect on 10 April 2020.
Rescue package CCS investments: What does it mean?
A recent rescue package launched by the Norwegian government intends, among other things, to stimulate activity levels through carbon capture and storage ("CCS") investments. What are the main elements of this scheme, and what does it mean for investors and suppliers?
COVID-19 and new IT solutions: Privacy in quarantine?
The corona virus is putting the health and social contemporary world in crisis. The spreading of the virus is very fast and the implementation of new IT solutions to manage both ascertained and potential corona contagions is under evaluation worldwide. The question is - how will the new technologies handle privacy of individuals?
Uncertainties for the realisation of Unified Patent Court
In a decision published 20 March, the German Constitutional Court declared the vote on the ratification act of the Unified Patent Court (UPC) Agreement void because the German Parliament did not pass the act with the required majority. The decision is published less than one month after the UK said it would not be seeking involvement in the system, and further support the growing speculations that the UPC will never get off the ground.
Governmental support in the coronavirus situation
The following gives an overview over the most relevant temporary measures put in place by the Norwegian government to mitigate the effects of the ongoing Covid19 situation with respect to the Norwegian industry and commerce. This article is last updated 20 March 2020 12:00 (CET). Please note that changes to the below-outlined measures may be made quickly, and that new measures are continuously being evaluated and put into force.
COVID-19 and Data Protection
The Norwegian and three other European data protection supervisory authorities on employers' collection and disclosure of employee data.
Responsibilities of the Board in times of crisis
With the effects of the corona crisis spreading into the economy, companies risk breaching financial covenants and facing illiquidity in the months to come. A number of companies will ultimately need to go through financial restructuring to ensure continued operations.
Green wave in the capital market
Risk and opportunities relating to Environmental, Social and Governance matters ("ESG") have become more and more important for the capital market, with a particular focus on human-caused climate changes. Companies with ESG high on their agenda and preferably with a climate friendly business, attract investors and capital.
US imposes secondary sanctions over Nord Stream 2
US imposes secondary sanctions over the Nord Stream 2 pipeline in Europe, currently under construction led by Russian state company Gazprom. The intention is to stop completion of the pipeline.
How many attacks does it take to make the Strait of Hormuz unsafe?
Since May 2019, there have been six oil tankers attacked in the Strait of Hormuz, four on 12 May 2019 and two on 13 June 2019, all allegedly with limpet mines or drones/missiles. Despite these attacks, vessels are however still taking orders to sail through the Strait albeit at higher war risk insurance rates and no doubt heightened crew concerns. Whilst the occurrence of such attacks might lead to war risk clauses in the governing charterparties being invoked and the war risk insurers applying their own approach to the situation, at what point, under English law, can owners refuse such voyage orders on the basis that the Strait is contractually unsafe?
Shipping project finance – new regulatory intricacies
Project financing has historically been a popular investment scheme and source of capital in Norway for shipping projects. The Norwegian regulatory authorities have however recently published guidelines regarding the application of the alternative investment fund regime on project finance entities and it is important that issuers, advisors, arrangers and investors are aware of the pitfalls of being captured by the wide definition of an alternative investment fund, and what steps they can take in order to adapt to the regulations.
Teekay shuttle tankers issues the first Nordic maritime green bond
In early October 2019 Teekay Shuttle Tankers LLC (“Teekay”) successfully placed its USD 125 million inaugural green bond, the first green bond to be issued in the Nordic markets by the maritime industries.
Contractual options for stranded assets
The downturn in the offshore markets has clearly been deeper and more longer lasting than had originally been expected following the collapse of the oil price back in 2014. This article takes a brief look at the current situation and at some of the contracting solutions that we are seeing in these markets.
Shipbuilding – the consequences of disruption by buyers
In the lead-up to delivery under shipbuilding and offshore fabrication contracts where delivery is delayed, buyers may, from time to time, face claims that they have disrupted the contractor’s progress in such a way that the contractor is entitled to an extension of the delivery date and/or damages for the additional costs incurred. A recent ruling from the Norwegian Supreme Court involving land-based construction clarifies the requirements as to causation for such a claim to succeed.
Shipbuilding from A to Z
Øystein Meland has worked with shipbuilding related matters on behalf of Wikborg Rein for more than 30 years, acting for both Norwegian and international clients. Capitalising on this experience, Meland launched the latest edition of his book “Shipbuilding Contracts – A commentary based on SHIP 2000” on 30 October 2019.
New US (and potential EU) sanctions on Turkey
Turkey's military offensive in north-east Syria has led to new US primary and secondary sanctions from the US and announcements of potential future sanctions from the EU.
Companies Transacting with Chinese Shipowners Face New Sanctions Risks
Last week, the Trump Administration imposed sanctions against Chinese entities and individuals that it has determined have been trading in Iranian oil.
OFAC announces changes in sanctions rules on Cuba
In previous Sanctions Alerts, we have discussed the Trump administration's shift in its sanctions policy against Cuba. Last week, the Department of the Treasury's Office of Foreign Assets Control (OFAC) took additional steps intended to financially isolate the Cuban government.
New regulations to facilitate offshore wind in Norway on public hearing
On 2 July 2019 the Ministry of Petroleum and Energy for the first time presented a proposal to open certain areas offshore the coast of Norway for construction of wind farms.
New US sanctions against Venezuelan government
On 5 August 2019, President Trump expanded the existing sanctions on Venezuela by issuing Executive Order "Blocking Property of the Government of Venezuela" (the "EO").
Update: US sanctions on Iran
In April 2019, we informed that the US would not renew any of the Significant Reduction Exceptions ("SRE"s) that previously had authorized eight countries – including China – to purchase oil form Iran without facing risk of US sanctions.
US threatens secondary sanctions relating to Nord Stream 2
US threatens secondary sanctions over the European Nord Stream 2 pipeline. Foreign parties involved in the construction could be subject to future US sanctions.
New US sanctions against Mali
On 26 July 2019, President Trump issued Executive Order 13882 "Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Mali" to address the deteriorating security situation in Mali.
Sanctions update regarding Iran
On 24 June 2019, President Trump announced another set of sanctions targeting Iran.
The UK Supreme Court’s decision in the “Renos” on CTL and the position under the Nordic Plan
The UK Supreme Court’s recent decision in the “Renos” (Sveriges Angfartygs Assurans Forening (The Swedish Club) and others v Connect Shipping Inc and another, [2019] UKSC 29) will be a landmark case on marine insurance under the English Institute Time Clauses Hulls (1/10/83) ("ITCH") conditions. It clarifies that when determining whether a vessel is a constructive total loss (“CTL”) under the ITCH conditions, regard should be had to (a) the costs incurred prior to the owners’ notice of abandonment, but not (b) remuneration payable under the SCOPIC clause. The decision will have significant importance in the insurance market because of the financial and practical implications. But what would be the position under the Nordic Marine Insurance Plan of 2013 version 2019 (“Nordic Plan”)?
Iranian Metal Sanctions Update
US sanctions now prohibit Norwegian companies and banks from engaging in most transactions in Iran's metal sector. There are fewer than 60 days left to wind down Iranian metal transactions that began before the sanctions were implemented.
US warns of potential sanctions relating to INSTEX and of sanctions on Iranian oil
US warns of potential secondary sanctions on INSTEX.
Readiness for the global sulphur cap - BIMCO's new IMO 2020 clauses
Most of those involved in the shipping industry will by now have a clear picture of the requirements under the IMO 2020 global sulphur cap on marine fuels. Attention has therefore turned to the steps that need to be taken to put those requirements into practice. Two clauses recently introduced by BIMCO are aimed at addressing certain contractual aspects of the IMO 2020 requirements as they apply to time charterparties.
Oslo – an efficient market for capital raisings
The Norwegian capital markets offers a flexible, time- and cost efficient process for equity issues (private placements). A key consideration for investors is, however, tradeable securities. The N-OTC can offer instant low threshold listings of shares with a minimum of reporting requirements.
Quiet enjoyment letters – benefit to lenders?
Quiet enjoyment letters ("QEL"s) are often used where a ship, rig or other unit being financed is subject to a long-term charterparty to govern the inter-relationship between the owner, its financiers and the charterer. But what is a QEL and do they have any benefit for the lenders?
Finance and operating leases in the Chinese market – key differences
Chinese sale and leaseback deals are now a well established financing option in the shipping sector. Whilst Chinese leasing companies have traditionally opted to go down the finance lease route, they are increasingly assuming more risk and opting for either a full operating lease arrangement or a hybrid structure adopting elements of both finance and operating leases.
Worldwide freezing orders upheld in multi-national shipping fraud case
In a recent decision by the English High Court (Manchester Shipping Ltd v Balfour Worldwide Ltd & Anor [2019] EWHC 194 (Comm).) two worldwide freezing orders in a multi-national shipping fraud case were upheld, rejecting the defendant's allegations of breaches of full and frank disclosure and provided useful confirmation of the standing of an intermediary charterer to claim for the full value of the hire.
Court underlines charterers’ obligation to maintain class under bareboat charter
A recent decision of the High Court in London means that shipowners will have a decisive right in remedy against bareboat charterers who fail to maintain the class status of a vessel. It will also serve as a reminder to charterers of the importance of documentary obligations under such charters.
Insolvency in China – how to minimise risk when a customer is facing bankruptcy
Ever since China strengthened its legal framework for bankruptcy proceedings in 2007, the number of Chinese bankruptcies has increased significantly. For the seller in a supply contract, protection against bankruptcies should be considered when drafting the contract and suitable protections built in, to the extent possible.
Improving arbitration in Norway
There are a number of ways to make arbitration more attractive and efficient and the inherent flexibility of arbitration provides practitioners with the necessary tools to achieve just this aim without resorting to the development and adoption of further written "guidelines" or "best practices".
Norway prepares for ratification of the Nairobi Wreck Removal Convention
The Norwegian Parliament has recently decided that Norway shall ratify the Nairobi Wreck Removal Convention and that the Convention shall be given effect not only in Norway's exclusive economic zone, but also in its territorial waters. The Norwegian Parliament has also adopted legislation to implement the Wreck Removal Convention into Norwegian law once ratified.
The bunker balance – owners consider LNG in advance of 2020
Using LNG rather than fuel oil is one of a range of options available to owners seeking to comply with IMO 2020. Given that shipbrokers have long predicted the emergence of a two-tier shipping market with 'greener' ships commanding a premium over older less eco-friendly vessels, what then is the future for LNG bunkering and what challenges does it present?
Shipbuilding Portal – digital building contracts
Wikborg Rein is launching a new digital service aimed at the shipping industry. The Shipbuilding Portal is a user-friendly online solution for the drafting of shipbuilding contacts based on the Standard Form Norwegian Shipbuilding Contract 2000, often referred to as "Ship 2000". It will simplify the drafting process and provide access to relevant practical information.
Autonomous ships in unchartered waters
Unmanned ships are sailing onto the horizon and the Norwegian maritime cluster is uniquely positioned to take a leading role internationally in the development and commercialisation of this new technology. But is the legal framework keeping pace?
Significant shift in US extraterritorial sanctions against Cuba. US sanctions and EU regulations go head to head
On 17 April 2019, the Trump Administration announced that US nationals will be allowed to file lawsuits against any person or company trafficking in Cuban confiscated property, before US courts. This by activating the long-suspended Title III of the Libertad Act. In his reasoning, the Secretary of State remarked that "Sadly, Cuba’s most prominent export these days is not cigars or rum; it’s oppression." The EU views the decision as contrary to international law and will, according to its High Representative, use the EU Blocking Regulation to prohibit EU persons from complying with it.
US will not renew Iran oil exceptions
On 22 April 2019, the US Secretary of State Mike Pompeo announced, somewhat surprisingly, that the US will not renew any of the existing Significant Reduction Exceptions ("SRE"s) that were issued for eight countries on 3 November 2018. The decision aims to "bring Iran’s oil exports to zero", according to the White House, and underscores the US determination to expand and enforce its maximum pressure against Iran.
EU extends sanctions regimes on Egypt and on Bosnia and Herzegovina for 1 year
The EU has extended its sanctions against Egypt for 1 year until 22 March 2020.
US prolongs sanctions on South Sudan for 1 year
On 1 April 2019, President Trump declared that the US sanctions in relation to South Sudan will continue for 1 year.
Development in US sanctions relating to Venezuela
On 17 April 2019, OFAC designated Banco Central de Venezuela under Executive Order 13850, as amended, for operating within the Venezuelan economy. At the outset, this means that all dealings involving Banco Central de Venezuela, or entities owned 50 % or more by this bank, are prohibited if subject to US jurisdiction.
US extends sanctions on Somalia for 1 year
On 10 April 2019, President Trump extended the US sanctions relating to Somalia for 1 year.
Possible future development in EU sanctions relating to Libya
On 11 April 2019, the High Representative of the EU, Federica Mogherini, made statements that, by some, have been interpreted as a possible warning of further EU sanctions relating to Libya.
EU Council extends sanctions on human rights violations in Iran
This week, the Council of the EU extended its restrictive measures responding to serious human rights violations in Iran.
US considers Venezuela secondary sanctions
Previously, we have informed of developments to the US primary sanctions on Venezuela. This week, the US indicated that also secondary sanctions might be on their way.
US renews legal basis for sanctions against Iran
On 12 March 2019, the US renewed the legal basis for its sanctions against Iran.
US issues updated General License 7A in relation to sanctions against Venezuela
Last week, we informed that OFAC had issued General Licences 3D and 9C relating to certain Venezuelan bonds and Petroleos de Venezuela S.A. ("PdVSA") securities. Yesterday, OFAC issued yet another General Licence relating to US sanctions against Venezuela.
Updated General Licenses in relation to the US Sanctions against Venezuela
Previously, the US President has issued various Executive Orders ("EO"s) to stop the human rights abuses and antidemocratic actions of the regime of Venezuelan President Nicolas Maduro. Various General Licenses, issued by OFAC, do however provide exemptions from the EO provisions in order to minimize the impact on the Venezuelan people and US interests.
Update – Beneficial ownership register act
In order to fully implement the EU Fourth Anti-Money Laundering Directive, Norway is soon to establish the necessary legal basis for a Beneficial Ownership Register. The EU Fourth Anti-Money Laundering Directive article 30 provides that companies in Member States should obtain and hold information relating to their “Beneficial Owners” and that this information should be reported to a central register.
Liquidated damages clauses – the position on penalties confirmed
The recent case of in the English High Court confirmed the enforceability of liquidated damages agreed by commercial parties even if the liquidated damages to be recovered are not an exact or precise estimate of loss.
EU renews its Russia sectoral sanctions
On 21 December 2018, the EU decided to extend its Russia-related sectoral sanctions and export controls for another six months, until 31 July 2019.
New US sanctions against Nicaragua
On 20 December 2018, President Trump signed into law the Nicaragua Human Rights and Anticorruption Act of 2018. Being quite limited in scope, the Act instructs the US to oppose international loans and financial or technical assistance to the Nicaraguan government for projects in Nicaragua, unless the loans are sought for the purposes of addressing basic human needs or promoting democracy in Nicaragua.
Ship and rig recycling
International conventions and local regulations combine to create a complex regime, which is often overlooked. The sale of a ship or rig to an intermediate buyer, who then sells the asset on to a shipbreaking facility, will not necessarily insulate the original owner from future liability or reputational damage.
EU lifts Eritrea sanctions
On the 10th of December, the EU terminated its sanctions regime against Eritrea.
Norway lifts Eritrea sanctions
Earlier this month, we informed that the UN has lifted its sanctions against Eritrea after nine years as a consequence of the improved political and military situation in the country.
UN lifts Eritrea sanctions
On 14 November 2018, the UN Security Council adopted resolution 2444 (2018) terminating all UN restrictive measures against Eritrea with immediate effect.
Transaction tips from our competition team: Clean Teams
In the middle of deal negotiations or transaction due diligence it is prudent for the buyer, or the merging parties, to get to know as much about the target or its new partner as possible. When the companies involved are competitors, however, this information sharing can raise its own concerns.
Guidance on drafting and interpreting contractual sanctions clauses
In this article, we discuss the first UK case dealing with the scope of a sanctions exclusion clause in the context of the re-imposed US sanctions on Iran and the EU Blocking Regulation. We also provide some pointers for in-house counsel drafting sanctions exclusion clauses.
Privilege in the UK – a landmark decision
A High Court decision limiting privilege in relation to advice prepared for a company regarding claims of fraud and corruption has recently been overturned by the Court of Appeal in London. The decision widens the scope of protection for disclosing documents created by internal investigations and should give comfort to organisations facing such allegations.
Transaction tips from our competition team: Gun-Jumping
When businesses decide to pursue a transaction they are understandably keen to complete and implement the deal as soon as possible in order to realise the anticipated synergies. However, when a deal requires clearance from one or more competition authority, there is often a prohibition on implementation pending receipt of the necessary clearances. Taking implementing steps in breach of this prohibition is called 'gun-jumping'.
Anti suit injunctions – are they still available in the EU?
In the recent case of Nori Holdings and others v. Public Joint Stock Company – Bank Otkritie Financial Corporation, the English High Court was asked to decide whether anti-suit injunctions could now be granted to restrain proceedings in another EU state. They decided that the answer was still "no".
Implementing the GDPR in Norway
The General Data Protection Regulation (GDPR) starts to apply within the European Union (EU) from 25th May 2018. Since the GDPR is an EU regulation, it will have direct applicability and direct effect in all EU member states as from that date. Norway, however, is not an EU member state but a member of the European Economic Area (EEA) and a different procedure therefore applies before the GDPR can become part of Norwegian law.
The WP29 Opinion 2/2017 on data processing at work
Article 29 Working Party (WP 29), consisting of data protection authorities from all EU and EEA states and the European DP Supervisor, has recently issued an Opinion 2/2017 on data processing at work ("the Opinion").
What Do President Trump's Iran Threats Mean for Norwegian Companies?
At last month's State of the Union address, President Trump called on Congress to "address the fundamental flaws in the terrible Iran nuclear deal". Trump has been attacking the deal, formally known as the Joint Comprehensive Plan of Action (the "JCPOA"), since he began campaigning for the presidency. But this latest statement, made at one of Washington's most important political events and coming on the heels of Trump's January 12 threat to withdraw from the JCPOA, suggests that the president may be closer to taking action. If Trump does decide to end US participation in the JCPOA, how will he do it? And what will this mean for Norwegian companies considering business in Iran?
Should privilege against self-incrimination apply to corporate investigations?
Privilege against self-incrimination is a fundamental principle that protects witnesses from revealing information which might expose them to an accusation or criminal charge. Many legal systems recognise this privilege, and in Norway the right to protect oneself against self-incrimination is a rule of law. The privilege derives both from the right to a fair hearing as defined in article 95 of Constitution and article 6(1) of the European Convention on Human Rights in addition to article 14(3)g of the United Nations Convention on Civil and Political Rights. In the US the privilege is enshrined in the Fifth Amendment to the Constitution.
Corporate criminal liability; the impact of an effective compliance program
An effective compliance program is essential for any business and it needs to be strong, both on paper and in practice. It addition to providing measures to assist companies to prevent, detect and respond to violations of laws and regulations, such programs have an important role to play as part of any defence against corporate criminal investigations and prosecutions.
Considerations for Norwegian Companies after the US Withdrawal from the Iran Nuclear Deal
On May 8, President Donald Trump announced that the United States would withdraw from the Iran nuclear deal.