STANDARD FORM CONTRACTS

Offshore Renewable Energy Development

There is increasing activity to develop standard form contracts for offshore renewable energy development projects, including the IMCA contract and the anticipated FIDIC contract.

This is highly welcome. Development of offshore infrastructure is complex, and risks are different in nature and scale as compared to onshore development (for example in relation to levels of specificity of site information, health and safety management and indemnification, general weather conditions and specific weather windows for working, supply chain lead in times, installation logistics and port access, overall programming and interface arrangements, and connection and offtake arrangements). This requires a distinct approach to management and allocation of risk. This has to date necessitated very significant adaptation of existing contract forms on a project-by-project basis, and development of standard form contracts should bring a greater degree of efficiency to project management and development.

Offshore Wind Industrial Strategy

The keenly awaited Offshore Wind Industrial Strategy is available. It includes 40 actions for 2024 and 2025 many of which focus on growing the offshore wind supply chain. The Strategy states that, to deliver on offshore ambitions, Ireland will dramatically scale up the enterprise base and skilled workforce that will service the industry in Ireland and around the world. The scale and variety of operations and services required ranges from complex R&D, environmental surveying, financial services, project management, engineering, fabricating, foundations, advanced manufacturing, construction, ICT and many more.

ESG

Nature Restoration Law and Buildings and Infrastructure

The European Parliament adopted its position on the proposal for a Regulation on nature restoration. The proposal is to require Member States to restore 30% of in scope habitats from a poor to good position by 2030, with higher targets for subsequent years. Requirements include restoring drained peatlands and Member States can choose from a wide range of measures to do this.

The text provides for ways in which the integration of green space in buildings and infrastructure will be required to be taken into account when complying with the Regulation. Progress in increasing urban green space and tree canopy cover will be measured at regular intervals until it aligns with targets set out and further elaborated under mechanisms in the proposal.

The text also takes into account accelerated deployment of renewable energy infrastructure, stating it should be possible to combine with restoration activities wherever possible, including in renewables acceleration areas and dedicated grid areas. Member States should coordinate the development of national restoration plans with the mapping of areas required to meet their 2030 renewable energy targets. For the purposes of various provisions in the text, renewable energy projects are presumed to be in the overriding public interest. Further information from the Parliament is available available Nature restoration: Parliament adopts law to restore 20% of EU's land and sea | News | European Parliament (europa.eu)

Regulation prohibiting products made with forced labour

Political agreement has been reached on a proposed Regulation prohibiting products made with forced labour from being available in the EU or exported from the EU. The Regulation would also provide for competent authorities to monitor compliance and carry out investigations into suspected violations, as well as a database of forced labour risk areas or products. Provisions would also address the role of customs authorities which, while not envisaged as being a first line of defence, would have access to certain information and the powers to suspend the release of products.

Materials used in construction are capable of falling within the wide definition of 'product' in the proposal, which is 'any product that can be valued in money and is capable, as such, of forming the subject of commercial transactions, whether it is extracted, harvested, produced or manufactured, including working or processing related to a product at any stage of its supply chain'.

There is a long lead in time. Once formally approved by the Council and Parliament, the Regulation will enter into force 36 months after publication in the OJEU. Further information is available here.

Policy Scorecard

The IGBC launched a policy scorecard on the decarbonisation of Ireland's Built Environment with the aim of tracking progress and identifying gaps as against Building a Zero Carbon Ireland Report, which is a roadmap to decarbonise Ireland's built environment across its whole life cycle.

ONGOING DISPUTES

Student Accommodation Project

The High Court refused an application by one of the defendants in Hgreit II Montrose OPCO LLC v Cogent Project & Cost Management Ltd and others [2024] IEHC 113 to strike out a claim of negligence. The substantive claims in the overall proceedings allege negligence and breach of contract, as well as failure to comply with fire safety standards, in a project for the conversion of a former hotel into student accommodation. The application to strike out related to a claim that part of the roofing works was defective.

National Paediatric Hospital Project

An order in relation to discovery was made in litigation in National Paediatric Hospital Development Board -v- Bam Building Limited [2024] IEHC 114. In the substantive litigation, the plaintiff seeks a declaration of validity of an instruction given by it to the defendant on 8 January 2019 to commence the Phase B Works. The discovery judgment indicates that the validity or otherwise of the Phase B Instruction is of central importance for both the timing and the final cost of the project.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.