Force Majeure Clauses and COVID-19

May 04 2020

Jamie Goldsmith QC, James Fox and Ben Zelenka Martin have written a note about the operation of force majeure clauses in the context of COVID-19. It explores: (i) the circumstances in which a party might be able to rely on a force majeure provision; (ii) the impact of COVID-induced supply constraints; and (iii) whether deposits and advance payments would have to be repaid in the event of force majeure....

David Wolfson QC and Richard Mott win significant hearing on the scope of without prejudice privilege and its exceptions, in a judgment of general importance to practitioners

May 04 2020

In his judgment in Berkeley Square Holdings & Ors v Lancer Property Asset Management Ltd & Ors, Roth J has provided important clarification of the scope of three separate exceptions to without prejudice privilege, including one which has never previously been applied in England, and another for which the legal basis has been notoriously unclear. The underlying facts concern a London property...

Enka v Chubb: The Court of Appeal grants anti-suit injunction with indemnity costs

April 29 2020

The Court of Appeal has today handed down judgment in what may well turn out to be the leading case on the English choice of law rules for ascertaining the proper law of an arbitration agreement and the role of the court of the seat of arbitration in granting anti-suit injunctions. Enka, the claimant, was engaged in 2012 as one of the subcontractors providing services in relation to the construction...

Material Adverse Change (MAC) clauses and COVID-19

April 28 2020

As many businesses grind to a halt amid the COVID-19 outbreak, borrowers and lenders alike will be assessing the ability of companies to service loans and the position under existing and pending contractual arrangements. A pressing issue is likely to be the applicability of so-called ‘MAC’ clauses in financing agreements. Such clauses may be relied upon by lenders to seek further security,...