Ireland: Horizon Scanner: Infrastructure, Construction, Energy (March 2023)

Construction & Engineering

STANDARD FORM CONTRACTS

The NEC published a second set of amendments to the NEC4 suite of contracts. They include:

• integration of Secondary Option X29 on climate change,
• integration of Secondary Option X22 on early contractor involvement in the Engineering and Construction Contract (with some amendments taking into account the 2022 practice note),
• optional amendments for certain short contracts relating to contractor design liability.

NEC's summary is available here and includes a link to a webinar on 19 April 2023 to discuss the amendments. A table of amendments is available here.

NEC also published clauses for use in Northern Ireland to ensure alignment with the Construction Contracts (Northern Ireland) Order 1997 (see here).

ADJUDICATION

The UK case of Exyte Hargreaves Ltd v NG Bailey Ltd [2023] EWHC 94 is a helpful reminder of the principle that, if a previous adjudicator has reached a decision on a dispute, a subsequent adjudicator has no jurisdiction to determine matters which are the same or substantially the same as those decided in the previous adjudication. The claimant had issued ten notices referring disputes to adjudication in the space of a month, and sought court enforcement of three of them. The court considered that the only common element was the sub-contract and that the adjudications were not dealing with the same disputes.

In Ireland, the Construction Contracts Act 2013 provides that the decision of the adjudicator is binding until the payment dispute is finally settled by the parties or in arbitral or court proceedings. In the Irish case of Aakon, it was argued that a second adjudicator's decision superseded a first decision. Simons J rejected that argument and indicated that the interrelationship between a first and second adjudication is not clear cut and would require careful consideration of the legislative intent underlying the Act. That was an exercise which was not appropriate in that case for several reasons, though it was noted that the existence of a subsequent adjudicator's decision was "merely a factor which a court might, in a suitable case, take into account in the exercise of its discretion to grant leave to enforce".

SUSTAINABILITY

Fit for 55/REPowerEU

Many instruments are at final negotiation stage and work continues on progressing others. Recent developments include a Parliament vote on the Energy Performance of Buildings Directive, indicating that faster progress is sought – see our latest update here.

Skills

The CIF, IGBC, Technological University of the Shannon, and Laois-Offaly Education and Training Board launched an initiative - BUSI2030 - to build up skills to support decarbonisation of Ireland's built environment.

Digital Infrastructure

COMREG UPDATES

ComReg issues final transition plan for the Multi Band Spectrum Award in 2.1 GHz Band

On 26 January 2023, ComReg issued a draft transition plan for the Multi Band Spectrum Award in the 2.1 GHz band. All three mobile network operators ("MNO") submitted responses to the draft but did not offer any alternative proposals or completion dates for consideration. Accordingly, the final transitional plan was adopted. The final plan sets out a phased move for each of the MNOs with the deadline for the spectrum migration of the last of MNO (Vodafone) scheduled for 3 March 2023. Read the full report here.

Proposed lease of spectrum rights from Dense Air and Vodafone to Eir

On 19 January 2023 and 1 February 2023, Eir submitted to ComReg notifications to lease spectrum rights in the 3.6 GHz band from Dense Air and Vodafone Ireland respectively. ComReg will now consider all submissions made in response to the consultation notice of 2 February 2023. Once ComReg has ascertained the relevant information, it will determine that the leases may be put into effect, provided that the leases would not be likely to distort competition. Read the full report here.

NCIT members agree taskforce should continue beyond its pilot phase

The Nuisance Communications Industry Taskforce ("NCIT") was established in December 2021 with the objective of addressing nuisance communications within the telecommunications industry. The Taskforce is comprised of the largest MNOs within the State, and is chaired by an independent chair and secretariat who report to ComReg. The group was initially established for a period of twelve months, at which point its continuation was to be reviewed. On 4 January 2023, the NCIT members agreed that the organisation should continue beyond its pilot phase, due to the high prevalence of fraud and the effect it continues to have on Irish telecommunications services. Read the full report here.

ComReg publishes draft decision on market review of the Fixed Voice and Mobile Voice Call Termination markets in Ireland

ComReg is required to review certain electronic communications markets to decide whether regulation is appropriate and, if so, what form it should take. This market relates to the wholesale transaction between one service provider and another, for the cost of terminating a call. The market can be divided into fixed voice call termination and mobile voice call termination, depending on whether the call is delivered to a fixed location or a mobile phone. In a 2019 decision, ComReg imposed obligations on designated significant market players ("SMP"). This draft decision, published on 24 February 2023, finds that the market for voice call termination cannot be subject to ex ante regulation and as such the SMP obligations imposed previously must be withdrawn. Read the full report here.

INDUSTRY NEWS

EU Commission gives go-ahead to joint venture by Deutsche Telekom, Orange, Telefonica and Vodafone

The European Commission has approved the joint venture, under the EU Merger Regulation, which aims to create a platform to support brands and publishers' digital advertising activities in the EU. The platform will create an alternative digital advertising space to the current 'big tech' providers. Implementing the principle of "privacy by design", the joint venture platform will allocate each user with a unique digital code derived from their mobile network account. This code will allow brands to recognise and categorise users on a pseudonymous basis, and to tailor their content accordingly. Read the full report here.

EU Commission launches consultation on future of the electronic communications sector and its infrastructure

The 12-week consultation period opened on 23 February 2023 and will close on 19 May 2023. The aim of the consultation is to gather views on the changing tech and market landscape. A plausible result of the consultation is that large tech companies could be required to contribute towards telecoms infrastructure costs, as has long been sought by some of the EU's largest telecoms infrastructure providers. Read the full report here.

Eir announces its high-speed fibre-to-the home network passes over one million premises in Ireland and commits to future investment

Eir announced that it now passes over one million premises across Ireland with its new high-speed fibre-to-the home network. The company committed to rolling out its gigabit broadband network to 1.9 million premises by the end of 2026. The network has been supported by more than €1 billion of investment so far, with another €250 million euro of investment planned each year until the end of 2026. Read the full report here.

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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.