Monthly Archives: May 2015

Construction arbitration: geography lessons

Construction ArbitrationWith anticipated global population growth of 40% between 2010 and 2030, the world’s interconnected and increasingly urban population is driving unprecedented demand for infrastructure. Delivering the required transport, energy and housing infrastructure in the swiftest and least disruptive manner therefore offers a competitive advantage. Achieving harmony between governments, financiers, developers and subcontractors over the delivery and development of major construction projects requires careful planning and, even then, disputes are inevitable.

Arbitrator Andrew Aglionby says that the main sticking points in construction disputes centre on quality, costs and time, most often when there are changes to contractual terms. Common examples are projects not being completed to the agreed standards, going over-budget or facing very lengthy delays. “These projects involve billions of dollars of investment and one of the biggest challenges is change: a change in the project specifications; a change in the timeframe; a change of mind; or sometimes a change of management,” he states. “When this occurs, and companies suddenly find themselves exposed or facing financial loss, the main question is who should be held responsible?”

The challenges and risks are diverse and substantial. Construction projects will see a multitude of contracts between private and public sector entities, often from different geographies. There have been Middle East investors – usually deploying Islamic finance mechanisms – constructing projects in London, Chinese companies going into Africa and Spanish developers taking on schemes in the US and Latin America. Companies such as Vinci, Flour, Grupo ACS, Hochtief and Skanska, meanwhile, have created global portfolios of projects.

As such, establishing minimally disruptive dispute resolution processes for cross-border projects – including where cases should be heard – are now high on the agenda for all parties. Aglionby, who practised in Hong Kong for 17 years, notes a trend towards resolving infrastructure disputes locally, but exceptions, particularly on smaller projects remain. “Asian-related disputes now gravitate more towards Hong Kong or Singapore, while cases in the Americas may go to New York or Miami,” he says, pointing out that contracts governed by the industry standards of the International Federation of Consulting Engineers (also known as FIDIC) have tended to focus on the UK.

In such situations, having the correct dispute resolution mechanism becomes critical. There are a great many factors companies need to consider when entering arbitration, including what happens before then (Dispute Adjudication Boards for example), the independence and attitude of the judiciary at the seat of the arbitration and the varied influences of the business and legal cultures behind the process. Few companies will agree local court litigation of international agreements and arbitration is often a common solution, although there is still factors that can be overlooked.

“Asian companies, for instance, may wish to hear their cases in Singapore or Hong Kong but one or more of the parties may come from countries with a civil law system,” Aglionby continues. “That may involve them in aspects of the process which may not be familiar, for example disclosure of documents, which might well be a usual feature of arbitration at the chosen seat. That is not necessarily a bad thing, but should not come as a surprise on the day. The situation is made more intricate by the global nature and diversity of the players in the construction industry.”

Aglionby thinks there is a move towards regional seats to gather more of the disputes which have closer geographical connections. There is a big and continuing push in establishing pan-regional arbitration hubs, such as Hong Kong and Singapore in Asia and New York or Miami for the Americas, while places such as Mauritius have been attempting to attract African disputes and Dubai, Qatar and Riyadh are vying to be first choice for Middle East-related disputes.

Aglionby recommends close scrutiny of arbitration clauses in regards to geographical factors, including who will chair an arbitration panel, as that can be influenced by the chosen place for arbitration. He believes that the seat of an arbitration should be considered quite hard during the contracting stages with the geographical aspects – as well as the perceptions or even misconceptions about certain markets – being addressed.

There is a balance to be struck between the cost and time benefits of local proceedings, versus proven seats with “a long history of dealing with relevant subject matter, or where there is good depth in the appropriate pool of lawyers, arbitrators, experts and support services all sufficiently versed in arbitration”. Other factors include the relevant cultural aspects of the businesses involved. “Standard forms of contracts also have a role to play and can be adopted but sometimes could or should adapt to send disputes to the most acceptable places,” says Aglionby.

The issue of where and how a case should be heard tends to be thought through in the very biggest contracts but many of the smaller to medium-sized ones often overlook such nuances, Aglionby believes.

“Many of the contracts will often have an arbitration clause from an earlier contract, cut and pasted, without anticipating all the ramifications of where a case might be held. If an Asian company working on a project in Africa has a standard arbitration clause without project specific amendments, it might, if it thought about it, have preferred a case to be heard in Hong Kong or Singapore – and both parties might have been willing to agree to seat an arbitration in Mauritius,” he summarises.

This post was written by Antony Collins who is a freelance journalist. He can be contacted at ac@acollinsmedia.com

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The post Construction arbitration: geography lessons appeared first on JAMS International.

Source: JAMS ADR

Detailed guide: Copyright: orphan works

Updated: The ‘Apply for an orphan works licence’ service will be unavailable between 7am and 2pm on Saturday 11 June 2016.

Overview

Orphan works

Orphan works are creative works or performances that are subject to copyright – like a diary, photograph, film or piece of music – for which one or more of the right holders is either unknown or cannot be found.

An orphan works licence:

  • applies only for use in the UK
  • can be for commercial or non-commercial use
  • is non-exclusive (not restricted to a single licensee)
  • can last up to 7 years
  • will be able to be renewed

Search the orphan works register

Search the orphan works register for details of:

  • applications for orphan works licences
  • licences that have been granted
  • applications that have been refused

Before you apply for a licence

Before you apply for a licence:

  • check that the work you want to copy is still in copyright because if it isn’t, you don’t need a licence to use it
  • check whether the use falls within one of the copyright exceptions
  • read the guidance
    on orphan works and take this short questionnaire to find out if you are eligible to use an orphan work under the EU Directive
  • carry out a diligent search for right holders in accordance with IPO published guidance
  • complete the diligent search checklist(s) and convert these to one PDF document to upload as part of the application process

Costs: application and licence fees

The cost of getting a licence includes an application fee and a licence fee.

The fees are calculated and displayed at the start of the online application process before you decide whether to go ahead with your application. The fee will depend on how many different works and uses you want to license.

In some cases, the licence fee will be set on a ‘price on application’ basis. If the use you want to make of the work is not listed on the online application form, you should contact the IPO at orphanworkslicensing@ipo.gov.uk for details of the fee.

You’ll need to pay the application fee when you submit the application (see table below). This is non-refundable. At this stage you do not need to pay the licence fee.

Number of works Fee Number of works Fee Number of works Fee
1 £20 11 £42 21 £62
2 £24 12 £44 22 £64
3 £26 13 £46 23 £66
4 £28 14 £48 24 £68
5 £30 15 £50 25 £70
6 £32 16 £52 26 £72
7 £34 17 £54 27 £74
8 £36 18 £56 28 £76
9 £38 19 £58 29 £78
10 £40 20 £60 30 £80

Payment can only be made by credit or debit card.

Apply for an orphan works licence

This service will be unavailable between 7am and 2pm on Saturday 11 June 2016.

To apply for a licence, complete the online application form.

If the licence is for a photograph or a still visual image, you will need to upload an image of it as part of the application process.

After you’ve made an application

IPO will let you know by email that they’ve received your application. They’ll consider your application including checking that an adequate diligent search has been made.

They’ll add certain details of your application to the orphan works register.

They’ll aim to process your application within 10 working days. This may not always be possible if the application is complex or involves a large number of different works with different right holders.

Successful applications

If your application is successful, IPO will ask you if you want to proceed with all the works and uses you have requested. You’ll be able to remove any works or uses from the application at this stage. If you want to add works or uses, you’ll need to submit a new application.

IPO will also send you the terms and conditions that apply to the licence. A set of standard terms and conditions is included in the guidance.

If you want to go ahead, you’ll now need to pay the licence fee. The fee will vary depending on the types of orphan work you want to use and what you want to do with them.

Whenever you use the work, you’ll need to:

  • provide contact details for the IPO
  • include the orphan works application number
  • credit the right holder if you know their name

Refused applications

IPO may refuse your application for a licence if they think:

  • a proper diligent search hasn’t been made
  • your proposed treatment, adaptation or alteration of the orphan work is derogatory, see paragraph 2.21 of the guidance
  • it wouldn’t be in the public interest to issue a licence

Right holders

If you are a right holder and believe your work is the subject of an application for a licence, or your work has already been licensed as an orphan work, you can:

  • contact IPO to stop the application if a licence has not yet been issued
  • contact IPO to claim the licence fee that has been paid

In both cases, the work will be on the register. If you want to make a claim, use the contact form which can be found when viewing the details of an individual work.

Once a right holder has been identified, no further licences will be issued. Further details are available.

Make a complaint or appeal

Applicants

  1. If your application has been refused, or you’re not happy about a licence condition or the licence fee charged, you should contact the IPO at: orphanworkslicensing@ipo.gov.uk
  2. If you’re still not happy about the licence condition or licence fee, you have the right to appeal to an IPO official not involved in the original decision.
  3. If the issue can’t be resolved, you can appeal to the Copyright Tribunal at copyrighttribunal@ipo.gov.uk

Right holders

  1. If you’re not happy with the actions IPO have taken, contact them at: orphanworkslicensing@ipo.gov.uk in the first instance.
  2. If you’re still not happy you have the right to appeal to an IPO official not involved in the original decision.
  3. If the issue can’t be resolved you can appeal to the First Tier Tribunal at grc@hmcts.gsi.giv.uk

The tribunal can only consider complaints that IPO have acted improperly or have not met their obligations under the regulations.

If your complaint is that the IPO has failed to accept that you are the right holder, this may be a matter for the Intellectual Property Enterprise Court (IPEC).

General complaints

If you’re unhappy with the final response to your complaint and it’s not something that can be appealed to the Copyright Tribunal or the First Tier Tribunal, you can refer your complaint to the Parliamentary and Health Service Ombudsman.

The Ombudsman’s Office can give you more information on their services and how to contact your MP. Their contact details are:

The Parliamentary and Health Service Ombudsman

Millbank Tower

Millbank

London

SW1P 4QP

Website: www.ombudsman.org.uk
Telephone: 0345 015 4033
Fax: 0300 061 4000
Email: phso.enquiries@ombudsman.org.uk

Source: UK IPO News