admin – Page 17 – Construction Law

The Projects and Construction Review, Chapter 22 “Italy”

Aug 07 2013

Third Edition, Law Business Research Ltd.

Chapter 22 by: Francesco Sanna, Anna Amprimo and Carolina Teresa Arroyo, K&L Gates, Milan

I INTRODUCTION

The current state of Italian project finance is the result of a trend initiated more than 20 years ago, when public resources started to become scarce and the construction or infrastructure needed private funds to be carried out.

First came the realisation of energy plants – especially the renewables sector with the CIP6 regulation, which started in 1992 – where project finance started to be used in Italy on the basis of the UK experience. Such project finance schemes were initially purely private and fostered by public subsidies in the sale of green energy to the state. In the light of the success of such structures, the Italian state in the late 1990s passed a specific regulation to use project finance schemes to finance, build and operate public infrastructures in the context of European framework legislation on public works. The procedure, in brief, provided that private sponsors could submit autonomously to the authorities’ projects to finance, build and operate public infrastructure.

In the case of ‘cold’ infrastructure, public grants are available to subsidise business plans; public subsidies, however, need to comply with Eurostat rules and need only cover a minority part of the investment. This procedure has passed through many legislative changes in the past decade and is now regulated under Article 153 et seq. of the Italian Act for Public Works, which provides a specific procedure for selecting sponsors in public PFI schemes. Such schemes are extensively utilised in a wide range of infrastructures in Italy, with particular focus on hospitals and roads. Purely private PFI schemes are still used in the energy sector, with a specific focus on renewable and photovoltaic projects.

These schemes are financed by major Italian banks, and their development has been helped by the setting up of regional public agencies that direct and manage all the major public PFI schemes dealing with infrastructure, but also urban regeneration programmes that involve the disposal of public assets.

(Footnotes omitted.)

To read the full chapter, click here.

Reproduced with permission from Law Business Research Ltd.
This article was first published in The Projects and Construction Review, 3rd edition (published in July 2013 – editor Júlio César Bueno).
For further information please email Adam.Sargent@lbresearch.com

New York Court holds that Indian Sovereign Immunity does not Extend to For-Profit Corporation

Jul 23 2013

Sue/perior Concrete & Paving, Inc. v. Lewiston Golf Course Corp., — N.Y.S.2d—, 2013 WL 2674470 (N.Y. App. Div. June 14, 2013)

In Sue/perior Concrete, the Appellate Division, Fourth Department, clarifies how closely a corporation must be tied to an Indian tribe to be entitled to tribal sovereign immunity.

Defendant, Lewiston Golf Course Corporation, was an Indian tribe-affiliated entity formed under the laws of the Seneca Nation of Indians. Lewiston hired the plaintiffs, Sue/perior Concrete & Paving, Inc. to construct a golf course that would increase revenue for an adjoining casino. The casino was owned by Lewiston’s parent company, Seneca Niagara Falls Gaming Corporation. Seneca Niagara Falls Gaming Corporation was in turn owned by another corporation, which itself was in turn owned by the Seneca Nation. Thus, the Seneca Nation was Lewiston’s ultimate owner, but the Nation was three steps removed from construction of the golf course. The construction project took over a year longer than estimated, and upon completion Sue/perior sued Lewiston for $4.1 million for extra work performed as well as delay-related damages. Lewiston moved to dismiss on the grounds that they were entitled to the Seneca Nation’s sovereign immunity.

West Virginia’s High Court Holds Defective Workmanship Causing Bodily Injury or Property Damage Does Constitute an “Occurrence” Under Standard CGL Policy

Jul 12 2013

By: Robert F. Pawlowski & Matthew S. Sachs, K&L Gates, Newark

West Virginia has joined the majority of states recognizing coverage for bodily injury and property damage claims arising out of defective workmanship. Influenced by the growing number of states allowing for such coverage, the Supreme Court of Appeals of West Virginia rejected prior rulings and recently held that defective workmanship causing bodily injury or property damage constitutes an “occurrence” under a policy of commercial general liability (“CGL”) insurance. Cherrington v. Erie Insurance Prop. & Cas. Co., Case No. 12-0036, 2013 WL 3156003 (W.Va. June 18, 2013) (“Cherrington”). In so holding, the Cherrington Court expressly overruled three of its prior decisions, decided between 1999 and 2005, holding that CGL policies do not cover defective workmanship claims.

To read more, click here.

Connecticut Supreme Court Determines Damage Caused by Unintended Faulty Work Constitutes Property Damage Resulting from an “Occurrence” Under Standard Commercial General Liability Policy

Jul 01 2013

By: Frederic J. Giordano & Ashley L. Turner, K&L Gates, Newark

Jurisdictions are split over whether defective construction can give rise to an occurrence under commercial general liability insurance policies. Some jurisdictions have held that faulty workmanship cannot constitute the basis for an occurrence because it is not the type of risk intended to be insured by commercial general liability policies or lacks the fortuity necessary to be considered an accident. In contrast, other jurisdictions have held that faulty workmanship may constitute the basis for an occurrence because it is unintended. The Connecticut Supreme Court joined those courts holding that faulty workmanship may give rise to an occurrence in the recent decision Capstone Building Corp. v. American Motorists Ins. Co., SC 18886, 2013 WL 2396276 (Conn. June 11, 2013) (“Capstone”).

To continue reading, click here.

Maritime Law Does Not Preempt State Safety Laws When The State Laws Do Not Unduly Interfere With Maritime Law

Jun 18 2013

Durando v. City of New York, 963 N.Y.S.2d 670 (N.Y. App. Div. 2013)

In this case, the New York Appellate Division, Second Department, addressed the interaction of New York state construction law and federal maritime law in the context of a construction worker’s personal injury suit, and held that local regulations will not be preempted when they do not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce.

Determining the Scope of “Additional Insured” Coverage: Recent ISO CGL Insurance Form Revisions Merit Close Attention By Contracting Parties

May 09 2013

By Roberta D. Anderson, K&L Gates, Pittsburgh

It is common among parties to sophisticated construction projects, service agreements, leases, and many other types of projects and transactions, to assess the risks associated with their contractual activities and allocate those risks through a combination of contractual indemnification provisions and insurance requirements. In the construction setting, for example, project owners, general contractors and developers (so-called “upstream” parties) typically require their subcontractors and sub-subcontractors (“downstream” parties) to indemnify them for claims arising from the contract work. In addition to the contractual indemnification provisions, upstream parties frequently require that they be provided with “additional insured” status on the downstream indemnitor’s/named insured’s general liability insurance policy. This provides a number of benefits to the upstream indemnitee. It effectively gives the additional insured/indemnitee direct coverage rights under the indemnitor’s insurance policy, preserves the indemnitee’s own liability coverage and may protect the indemnitee in the event the contractual indemnification provision in the parties’ contract is determined to be void and unenforceable.

To continue reading, click here.

Supreme Court of Minnesota Upholds Denial of Coverage to Additional Insured in the Absence of Vicarious Liability

Apr 23 2013

By Andrew R. Stanton, Frederic J. Giordano, David R. Osipovich

Introduction

Construction contractors and subcontractors, as well as commercial policyholders generally, will wish to take note of a recent Supreme Court of Minnesota decision that lends insight into the scope of coverage provided by additional insured endorsements in insurance policies, the scope of protection afforded by indemnity provisions in construction contracts, and the reach of anti-indemnity state statutes.

In Eng’g & Const. Innovations, Inc. v. L.H. Bolduc Co., Inc., 825 N.W.2d 695 (Minn. 2013), the Court held that an endorsement making a contractor an additional insured on its subcontractor’s general liability policy only to the extent that damage was caused by the subcontractor’s acts or omissions, and which further expressly stated that the contractor did not qualify as an additional insured with respect to its independent acts or omissions, provides additional insured coverage only for the contractor’s vicarious liability for the subcontractor’s negligence. Because a jury found that the subcontractor was not negligent, the Supreme Court held that no basis existed to hold the contractor vicariously liable and that the contractor did not qualify as an additional insured on the subcontractor’s policy.

To continue reading, click here.

Welcome to the 22nd Edition of K&L Gates’ Arbitration World

Apr 15 2013

Welcome to the 22nd edition of Arbitration World, a publication from K&L Gates’ International Arbitration Group that highlights significant developments and issues in international and domestic arbitration for executives and in-house counsel with responsibility for dispute resolution.

To view Arbitration World in our new online magazine format, click here.

To download a printable PDF of the publication, open the link above and click on the far right icon in the magazine toolbar at the top of the page.

We are delighted to be able to include in this edition a guest contribution from Rubini Ventouras, Group Executive Legal Affairs, Asia Pacific, of Newmont Mining Corporation. In her article, Rubini offers her perspectives on the challenges associated with the management of disputes in multiple, widely varying jurisdictions and explains why arbitration remains her preferred process for the resolution of international commercial disputes.

We are also pleased to welcome a contribution from James Blick, Director at TheJudge Limited, a leading broker of litigation and arbitration funding and after-the-event insurance. In his article, James offers some practical tips and insights on how to get the best deal when negotiating with potential third-party sources of funding for arbitration.

This edition also includes our usual update on developments from around the globe in both international commercial arbitration and investment treaty arbitration, along with specific articles covering some of those developments and other topics of interest in more detail, authored by members of K&L Gates’ International Arbitration Group. This edition includes a contribution from our new colleagues in Melbourne, Australia (following the combination of K&L Gates LLP with Middletons, effective 1 January 2013) describing a recent constitutional challenge to the international arbitration regime in Australia.

We hope you find this edition of Arbitration World of interest, and we welcome any feedback (email ian.meredith@klgates.com or peter.morton@klgates.com).

New Jersey Court Requires Materials Suppliers to Ascertain Source of Payments Made By Insolvent Subcontractors Under New Jersey Lien Law

Apr 12 2013

L&W Supply Corp. v. DeSilva, 429 N.J. Super. 179 (N.J. Super. Ct. App. Div. 2012)

In this case, a New Jersey appellate panel expands and clarifies a material supplier’s obligations to determine the source of payments made by purchasers of materials and allocate the payments properly under the New Jersey Construction Lien Law, N.J.S.A. 2A:44A-1, et. seq. (the “Lien Law”).

Pursuant to the Lien Law, a contractor or supplier who is owed payment for work or materials is permitted to file a lien against the real property on which the improvements were constructed. L&W Supply, 2012 WL 6599966 at *1. The purpose of the Lien Law is two-fold. First, it ensures that suppliers are paid for materials supplied during construction. Second, it protects owners from paying more than once for the same work or materials. In order to facilitate the second purpose of the Lien Law, the value of a materials supplier’s lien fund is limited to the unpaid portion of the contract price for the contract for which the unpaid materials were utilized.

Changes to North Carolina’s Mechanics’ Lien Statute

Apr 01 2013

By Brian P. Evans & Samuel T. Reaves, K&L Gates, Charlotte

Significant changes in North Carolina’s mechanics’ lien statute take effect on Monday, April 1, 2013. These changes impose new duties on property owners regarding the designation of a private lien agent for almost every real estate construction project. An owner’s failure to comply may result in the inability to obtain grading and building permits and also in mechanics’ and materialmen’s liens being given added priority or validity, so it is important that parties involved in North Carolina real estate construction projects become familiar with the new procedures under the statute.

Author:admin