sh portfolio 10–2016

Shelley Hutchin Design

Shelley HutchinDesign

Clyde & Co

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Corporate ManslaughterCorporate Manslaughter

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Re-design

Safety, Health & Environmental newsletter for print and online/ interactive publication.

A4, Wrap around cover, Matt laminate cover, stapled

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Corporate Manslaughter

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The call follows the publication of the Independent Recall.

The review made a number of recommendations to help improve the way in which unsafe consumer products are identified and removed from the market. However, it is clear that there is still a lot to be done.

Fire! Fire!The appliances have been linked to thousands of fires caused by fluff coming into contact with heating elements. Homes have been ruined and, in some cases, the machines have burst into flames as people loaded them with clothes. Other appliances causing fires include dishwashers, fridges and freezers and washing machines.

The LGA has highlighted some alarming case studies, including:

• A family in Morecambe whose tumble dryer burst into flames while they were asleep

• Two people needing treatment following a house fire in Preston

• A mother with two children who had to flee her Nottingham flat after her tumble dryer burst into flames as she was loading it

• A mother and two young daughters from Essex who were left homeless after their tumble dryer caught fire. They were woken from their sleep by their smoke alarm

• The death of two men who died in a flat fire in Llanrwst in October 2014. A Pre-Inquest Hearing into their deaths was told that the fire started in a tumble dryer

• The death of a father who died whilst saving his two children from a house fire. The fire started when a Beko fridge freezer caught fire in his home

Safety firstThe LGA has noted that many manufacturers are running repair programmes with lengthy waiting lists, rather than recalling potentially hazardous machines, and is calling on them to recall the affected tumble dryers.

The LGA has also called for all white goods to include fire-proof markings which would list the manufacturer, model and serial number, allowing fire investigators to identify which models are causing fires.

Whilst there are currently no further measures a manufacturer should be taking, over and above existing compliance, businesses should take note that there is clearly an increasing focus on the importance of prompt product recall with proper communication to consumers. It remains to be seen whether more stringent legal measures will be introduced.

Authors: Rod Hunt and Luisa Lister

She Regulatory news – Autumn 2016

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International Arbitration - emerging marketsA6 pocket-size brochure for Africa conference 2016 - Soft touch matt laminate finish, perfect bound

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The widespread adoption of arbitration clauses in international commercial contracts reflects the advantages offered by international arbitration.

Arbitration provides a contract-based alternative to resolving commercial disputes in local courts.

Arbitration clauses in commercial contracts can be tailored to meet the parties’ particular requirements. The parties can opt for:

– Institutional arbitration – under the supervision of one of the major arbitral institutions, each of which has its own set of rules

– Ad hoc arbitration – where the proceedings are not supervised by an institution and the parties decide the rules that govern the arbitration

While the enforcement of foreign court judgments in many states can be challenging, costly and time consuming, the New York Convention provides an efficient mechanism for enforcing arbitration awards in foreign jurisdictions.

INTERNATIONAL COMMERCIAL ARBITRATION

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CLYDE & CO IN AFRICA

BOTSWANA – Successfully advising on an insurance

related mining dispute

EGYPT – Conducting an ICC arbitration in Cairo

on behalf of a contractor in respect of a construction project in Alexandria

ETHIOPIA – Advising on multiple arbitration

claims relating to the construction of a regional road in East Africa

GAMBIA – Successfully representing a mining

company against The Gambia in an investment arbitration at ICSID

– Successfully acting for an investor in two investment arbitrations at ICSID in relation to the termination of oil exploration and production licences

GHANA – Representing a state owned oil storage

and transportation company in a LCIA arbitration

– Acting for a design and construction company in UNCITRAL proceedings relating to a mine

GUINEA – Acting for an infrastructure company

in an ICC arbitration against the Government of Guinea in relation to a debt recovery

– Advising the Government of Guinea on infrastructure and iron ore mining projects

MAURITANIA – Acting for the Mauritanian Government

in an iron ore mining arbitration at ICSID

MOROCCO – Advising a real estate developer

in an ICC arbitration regarding the termination of a joint development and funding agreement

NIGERIA – Acting in a dispute between

joint venture parties relating to hydrocarbon project funding

SENEGAL – Advising African Development Bank on

a EUR 47 million port investment

SIERRA LEONE – Advising on the infrastructure phase

of an iron ore project including port and rail aspects

SOUTH AFRICA – Advising the South African

Government on reforms to its PPP Unit

– Advising the South African Government on standardisation of Private Finance Initiative

TANZANIA – Representing a multinational

company in a dispute with a distributor

– Advising on a USD 380 million sugar bio-fuels project

– Advising Agence Française de Développement in connection with a USD 35 million financing

– Advising a port operator in respect of various matters port concessions/leases

ZIMBABWE – Advising the Ministry of Finance on

inward investment issues

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ENFORCEMENT OF ARBITRAL AWARDS

When considering an investment in an African state, it is important to be aware that the rules governing the recognition and enforcement of foreign arbitration awards vary between the 54 African states. Enforcing foreign arbitration awards will be easier in some African jurisdictions than in others.

Where the parties are aware of the challenges they face at the drafting stage, there are a number of strategies that can be adopted in order to protect the parties’ interests. In order to do so, it is vital to be aware of the rules that govern the recognition and enforcement of foreign awards in a particular African jurisdiction.

The 54 African states can be broadly separated into 3 categories:

1. New York Convention member states

2. L’Organisation pour l’Harmonisation en Afrique du Droit des Affaires (“OHADA”) member states

3. Those which are neither New York Convention nor OHADA member states

out of the 54 states in Africa have ratified and acceded to the New York Convention. The courts of these 54 states are required, subject to a number of limited exceptions, to recognise and enforce arbitral awards made in other contracting states.

out of the 20 African states which have not ratified and acceded to the New York Convention are members of OHADA. Arbitral awards made in non-OHADA member states can be enforced in these 5 states under the OHADA Uniform Act on Arbitration 1999.

out of 54 African states are neither signatories of the New York Convention, nor OHADA member states. A party seeking to enforce a foreign arbitral award in one of these states, such as Libya (where the enforcement of foreign awards is governed by the Libyan Civil Code), must rely on the provisions on the recognition and enforcement of arbitration awards in the relevant national law, which will ordinarily be more onerous than in New York Convention or OHADA member states.

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Protections against a number of the risks facing investors in

some African states could be available to foreign investors.

Where disputes arise in both contractual and non-contractual

relationships, investors may be entitled to protection under:

– Bilateral investment treaties (BITs), such as the China – Nigeria BIT

– Multilateral investment treaties (MITs) such as the South African

Development Community (SADC) Protocol on Finance and

Investment

– State contracts

BITs and MITs are international instruments concluded between

states which provide substantive and procedural protections for

investments made by foreign investors.

According to the United Nations Conference on Trade and

Development (UNCTAD), in addition to MITs, African states have

entered into 474 BITs. Of these, 155 were concluded between African

states, of which there are currently 31 in force.

While the substantive protections available vary from treaty to

treaty, BITs and MITs ordinarily provide for:

– Protection against expropriation without compensation

– Fair and equitable treatment

– Full protection and security of investments

– Free transfer of funds

– Dispute resolution by international arbitration

INVESTOR-STATE

ARBITRATION

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SUCCESS AT ICSID FOR CLYDE & CO REPORTED

BY THE PRESS

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Maurice Kenton Partner, LondonT: +44 (0)20 7876 6520 E: [email protected]

Maurice is a partner in the global arbitration group. He was educated in both South Africa and England and is described in Legal 500 as “a first rate litigator”. His practice focusses on contentious matters in Africa, where he has arbitrated in over a dozen jurisdictions.

He has particular experience across Africa in the mining, oil and gas, power, infrastructure and insurance sectors, and has worked for both private and state parties.

He has built a track record leading teams and winning cases under the ICC, LCIA, and UNCITRAL rules as well as at ICSID and in the English High Court. Maurice successfully represented investors in 3 ICSID arbitrations against The Gambia concerning a mining dispute and the wrongful termination of offshore oil exploration and production licences.

Peter KasandaPartner, Dar es SalaamT: +255 768 983 003 E: [email protected]

Peter manages Clyde & Co’s East Africa transactional practice from our Dar es Salaam, Tanzania office. He has a wealth of experience advising on projects in Africa including advising on the structuring of investments to ensure arbitral protection.

He has successfully closed several projects in the infrastructure, telecoms, mining, energy and power sectors on the continent, acting for lenders (both commercial and development finance institutions), consortia and project companies.

Prior to joining Clyde & Co, Peter worked at the African Development Bank where he advised on African finance projects.

Peter has recently advised various independent oil & gas companies on issues relating to a USD 18 billion LNG plant and advised the South African Government on standardisation of Private Finance Initiative Contracts.

THE TE AMThe Partners are supported by a team of experienced lawyers qualified in both common and civil law jurisdictions including England and Wales, France, the US, Spain and Brazil. The team has experience of resolving disputes involving African parties across a range of sectors, with a focus on the mining, energy, infrastructure and insurance industries.

KEY CONTACTS

Peter Hirst Partner, LondonT: +44 (0)20 7876 4425 E: [email protected]

Peter is the Co-Chair of the global arbitration group. He has arbitrated and litigated in more than 50 international jurisdictions, from Africa, the Far East, Middle East, Central Asia, US and South America, where he has broad experience in all arbitral institutions and areas of commercial law, particularly energy, insurance, mining and infrastructure.

Peter has arbitrated in Africa. For example, he was lead counsel on a series of LCIA arbitrations and associated English and Zambian court proceedings involving copper mining output contracts in Zambia.

Peter is listed in The Lawyer magazine’s Hot 100 lawyers for 2016. He is noted in Chambers as “proactive and streetwise” and “an excellent negotiator, who knows how the industry works”.

CLYDE & CO LLP ARBITR ATION 1/3LY SPECIAL ISSUE ON AFRIC A, 4 (2015)

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Foreign direct investment inflows into Africa increased from USD 9.1 billion in 20001 to USD 51 billion in 2014.2

FDI INFLOWS INTO AFRICA IN 2014

An increase in the amount of foregn investment will often be accompanied by an increase in the number of disputes.

When considering an investment in a developing African country, foreign investors should be particularly aware of the numerous risks (eg legal, social, political and economic), that may arise throughout the course of investment.

1 UNCTAD World Investment Report 2001

2 UNCTAD World Investment Report 2015

INVESTMENT IN AFRICA

North Africa

West Africa

East Africa

Central Africa

USD 11.5 billion

USD 12.8 billionUSD 12.1 billion

USD 10.8 billion

USD 6.8 billion

Southern Africa

Arbitration is an increasingly popular mechanism for the resolution of disputes and in recent years the world’s major arbitral institutions have registered hundreds of disputes involving African parties.

WHAT IS ARBITR ATION AND HOW C AN IT HELP?When structuring an investment in an African country, investors should consider the protections that are available against the particular risks that they face. Providing for the resolution of disputes by arbitration can allow investors to protect against certain risks which are present in a number of African jurisdictions.

Key features and benefits of arbitration:

– Neutral venue: the parties can resolve their dispute in a neutral forum which is not affected by the perceived bias of the parties’ respective home-state courts

– Enforceability of arbitral awards: there are a number of binding international instruments which facilitate the recognition and enforcement of arbitral awards, the most important of which is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”)

– Competence and expertise: the parties can choose arbitrators based on their knowledge and experience of specific sectors, industries, and types of transaction

– Flexibility: the parties can tailor all aspects of the procedure to suit their requirements including issues such as disclosure and the number of submissions

– Confidentiality: the arbitral process is usually private and confidential

ARBITRATION -

PROTECTING YOUR

INVESTMENTS IN AFRICA

www.clydeco.com

Clyde & Co LLP

Clyde & Co LLP is a limited liability partnership

registered in England and Wales. Authorised and

regulated by the Solicitors Regulation Authority.

© Clyde & Co LLP 2016

CC009325 - January 2016

Clyde & Co


Clyde & Co2016 Re-design

M&A Growth global brochure - A4, perfect bound, litho printed, Matt Laminate coverAnnual growth report for soft commodities

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The market for protection against cyber threats presents significant growth opportunities but also challenges. As holders of significant amounts of customer data it is vital that insurers get their own houses in order, especially in light of new EU rules that represent the biggest change to data protection in over a generation.Mark Williamson, Partner, London

1in5P&C insurers have yet to apply big data advanced analytics to any function


Clyde & CoSub brand - Projects & Construction

Annual review, A5 brochure, spiral bound, gloss laminate cover

Sub-brand designHealthcare brochure requiring new logo utlising keyline extending into pulse line - simple use of existing brand elements. Internally printed.

For a more detailed overview on these key developments look no further than the next page…. Firm Foundations:

a year in review Legal developments in the UK construction industry

A finger on the puls e of

BARLOW LYDE & GILBERT LLP | INTRODUÇÃO AO RESSEGURO 98 BARLOW LYDE & GILBERT LLP | AN INTRODUCTION TO REINSURANCE

A reinsured may instruct a broker to act as its agent for thepurposes of negotiating and placing the reinsurance contractwith reinsurers. After the contract has been placed, thereinsurance broker may act as an intermediary between theprincipals for the purposes of transmitting the reinsurancepremiums from the reinsured to the reinsurer, passing oninformation and collecting reinsurance claims from thereinsurers.

The�broker

O�brokerUm ressegurado pode instruir um broker (corretor deresseguro) para atuar como seu agente na negociação ecolocação do contrato de resseguro com os resseguradores.Depois que o contrato foi colocado, o corretor de ressegurospode atuar como um intermediário entre as partes paraefeitos de transmissão dos prêmios de resseguro doressegurado para o ressegurador, transmitindo informação ecoletando indenizações de resseguro dos resseguradores.

“A reinsured may instruct a broker toact as its agent for the purposes ofnegotiating and placing thereinsurance contract with reinsurers”

“Um ressegurado pode instruir umbroker (corretor de resseguro) paraatuar como seu agente na negociaçãoe colocação do contrato de ressegurocom os resseguradores”

É freqüente mais de um ressegurador participar noresseguro de um risco específico, com cada resseguradoraceitando uma parte da exposição. Isso é conhecido comoMercado de Subscrição: cada ressegurador é responsávelapenas por sua parte do risco, e não pela parte do riscoassumido por outros resseguradores.

O ressegurador está apenas interessado em sinistros diretosna medida em que afetem a sua responsabilidade perante oressegurado nos termos do contrato de resseguro. A relaçãode resseguro é ocasionada pelo contrato de resseguro e é

mutualmente exclusiva da relação entre o segurador e osegurado original. O segurado original não tem interessejurídico na relação de resseguro. As responsabilidades eobrigações entre ressegurador e ressegurado são novasresponsabilidades e obrigações, criadas e reguladas pelocontrato de resseguro. Elas não são, apesar do que algumada terminologia usada no resseguro possa sugerir, umasimples partilha de uma obrigação existente, embora hajacasos em que alguns elementos do contrato subjacentepossam ser incorporados no contrato de resseguro.

A reinsurer is only interested in the direct losses to the extentthat they affect its liability to its reinsured under the contract ofreinsurance. The reinsurance relationship is brought about bythe reinsurance contract and is mutually exclusive from therelationship between the insurer and the original insured. Theoriginal insured has no legal interest in the reinsurancerelationship. The liabilities and obligations of the reinsurer andreinsured are new ones which are created and governed bythe reinsurance contract. They are not, despite what somereinsurance terminology might suggest, a simple “share” of anexisting obligation; although there are circumstances wheresome elements of the underlying contract may beincorporated into the reinsurance contract.

Intro to reinsurance Eng Port split #791:Layout 1 11/01/2010 8:48 am Page 8

BARLOW LYDE & GILBERT LLP | INTRODUÇÃO AO RESSEGURO 76 BARLOW LYDE & GILBERT LLP | AN INTRODUCTION TO REINSURANCE

Reinsurance is the insurance of insurance risk. In the sameway as individuals and companies need insurance to protectthemselves against the risks they face, so insurers needreinsurance. When an insurer buys reinsurance it is buyingprotection against the costs of the claims it may have to meetunder the policies of insurance it has issued. Reinsurance maybe purchased in respect of a single large risk, in connectionwith a book of risks or even in respect of the whole account ofa company. We have discussed the different types ofreinsurance more fully below.

The original or direct insurer who purchases the reinsurancecover is known as “the reinsured” or the “the reassured” (this

latter expression is more common in marine, aviation and lifebusiness). The reinsured may also be described as the“cedant” or “ceding company”. Where a reinsurer buysreinsurance for the risks it is itself reinsuring this “reinsurance”is known as a “retrocession”. The reinsured in thesecircumstances will be called the “retrocedant” and thereinsurer will be called the “retrocessionaire”.

It is not unusual for more than one reinsurer to participate inthe reinsurance of a particular risk with each reinsureraccepting a proportion of the exposure. This is known as aSubscription Market; each reinsurer is liable for its share onlyand not for the share of the risk accepted by other reinsurers.

What�is�reinsurance?

O�que�é�o�resseguro?O resseguro é o seguro do risco de seguro. Da mesma formacomo os indivíduos e as empresas precisam de seguros parase protegerem contra os riscos que enfrentam, também umaseguradora necessita de resseguro. Quando uma seguradoracompra um resseguro, ela está comprando proteção contra oscustos dos sinistros que pode ter que enfrentar no âmbito dasapólices de seguro que emitiu. O resseguro pode seradquirido em função de um único grande risco, de umacarteira de riscos ou mesmo em relação a todo o portfolio deseguros de uma seguradora. Discutiremos os diferentes tiposde resseguro de forma mais completa abaixo.

A seguradora original ou direta que adquire a cobertura deresseguro é conhecida como "ressegurado" ou"reassegurado" (esta segunda expressão é mais comum nossetores de riscos aeronáuticos, marítimo e vida). Oressegurado pode também ser descrito como o "cedente" ou“seguradora cedente". Sempre que um ressegurador compraresseguro para os riscos que ele próprio está ressegurandoeste “resseguro" é conhecido como “retrocessão". Oressegurado, nestas circunstâncias, será chamado de“retrocedente" e o ressegurador será chamado de“retrocessionário”.

IntroductionThe purpose of this booklet is to provide readers with an introductory guide to reinsurance. Thebooklet contains a practical explanation of the principal types of reinsurance including facultativecovers, treaty reinsurance, excess of loss and proportional cover.

The booklet also addresses topics including the function of slips and the formation of thereinsurance contract, the duty of utmost good faith, policy wordings and conditions, triggers ofcoverage, aggregation and common claims provisions. At the end of the booklet there is aglossary of frequently occurring terms.

Much of what is discussed in the booklet, such as the meaning of facultative reinsurance, is ofuniversal application, but where specific legal issues are raised, our comments are from theperspective of English Law.

IntroduçãoO objetivo desta brochura é fornecer aos leitores um guia introdutório ao resseguro. A brochuracontém uma explicação prática dos principais tipos de resseguro, incluindo cobertura facultativa,tratado de resseguro, excesso de danos e cobertura proporcional.

A brochura também aborda temas como a função de slips e a formação do contrato deresseguro, a obrigação de absoluta boa-fé, formulários e condições de apólices,desencadeadores de cobertura, agregação e regras de pagamento de indenizações. No final dabrochura há um glossário da terminologia mais freqüente.

Muito do que é discutido na brochura, como o significado do resseguro facultativo, é deaplicação universal, mas onde questões jurídicas mais específicas são levantadas, os nossoscomentários são feitos na perspectiva do Direito Inglês.

Intro to reinsurance Eng Port split #791:Layout 1 11/01/2010 8:48 am

BARLOW LYDE & GILBERT LLP | INTRODUÇÃO AO RESSEGURO 3BARLOW LYDE & GILBERT LLP | AN INTRODUCTION TO REINSURANCE

The opening up of the reinsurance market in Brazil in 2008 hasmade this an exciting time for the region, and for the manyreinsurance companies who have subsequently set up here.

Barlow Lyde & Gilbert LLP, one of the leading global experts inreinsurance law, established an office in Latin America in October2009 in response to growth and promise in this region. Based inSão Paulo, our presence in Brazil has allowed us to broaden ourservices and extend the reach of our reinsurance, aviation,international arbitration and marine, energy and trade practices.

I hope that you find this booklet a useful introduction to themain principles of reinsurance. If you have any questions, pleasedo not hesitate to contact either myself or Jeremy Shebson([email protected]), our lead partner in São Paulo.

Simon�KonstaSenior PartnerBarlow Lyde & Gilbert LLPdirect�tel�+44 (0)20 7643 8085 email�[email protected]



Barlow Lyde & Gilbert210mm x 210mm Reinsurance brochure

Bilingual English/Spanish An�introduction�to�reinsurance

Introdução�ao�resseguro


sh portfolio 10–2016

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