We advise companies on their most significant projects.

• Advising a listed company on a joint venture in the raw materials industry for battery storage as well as on all related legal issues (CAPEX > € 500 million) 
• Advising a listed company on an M&A transaction and the spin-off of the nuclear division of the seller
• Advising a listed company on a joint venture in the field of procurement of mineral raw materials and related Long-Term Supply Agreements
• Advising a company on the conclusion of a distributorship agreement in the field of rare earths with a contractual partner in India
• Advising a listed company on acquisitions and divestments in the energy sector in Europe, Middle-East, South Africa, India and Vietnam
• Advising a company in a multi-million Euro claim against former board members arising from deficiencies in establishing, implementing and controlling an efficient compliance management system (i.a. D&O and fidelity insurance)
• Advising a company in an international corruption case and negotiating a leniency agreement, under the Brazilian Clean Company Act with the Brazilian Anti-Corruption Office (CGU) and the Federal Prosecution Office (MPF); advising in recourse claims against the former management (i.a. D&O and fidelity insurance issues)
• Advising a company regarding a deferred prosecution agreement with the U.S. Department of Justice and its extension on various international compliance-related issues (such as risk analysis, third party management, allegation management system and various findings), successful completion of the monitorship
• Advising and conducting comprehensive investigations of compliance related cases in India, South Africa and Vietnam
• Advising a company in connection with the development of compliance clauses for suppliers and subcontractors, consortia and joint ventures and compliance training programs
• Advising an automobile manufacturer on the planned introduction of a car sharing system (review of legal admissibility)
• Advising a company on how to proceed in a distributed product (warnings, recall etc.)
• Advising a logistic group on how to deal with unlawfully collected funds
• Advising a company in the waste industry on necessary further actions in the event of subsequently discovered non-compliance of public law regulations
• Advising a service provider operating internationally on how to deal with unlawfully collected funds

We advise in particular within the scope of financial lines (D&O, legal protection and cyber) and industrial insurance both preventively and in contentious proceedings.

• Asserting and negotiating significant D&O claims and claims against fidelity insurance
• Negotiation and enforcement of erection all risks insurance claims, e.g. in one of the largest asbestos cases in Benelux and in a major claims case at an industry boiler
• Negotiations of policy amendments and renewals on various insurance lines (liability, D&O, fidelity, assembly, erection all risk and property insurance)
• Advising a company on a CEO-fraud case and enforcement of claims against fidelity insurance
• Risk analysis and cyber insurance coverage
• Advising an insurer on the defense of product liability claims against a policyholder

We advise in complex legal disputes based on years of experience.

• Advising a company in a DIS arbitration in connection with works at a nuclear power plant in Finland due to alleged disturbances in the construction process and cost increases (dispute value 165m €)
• Many years of co-mandated advice in an ICC arbitration on delays and disruptions, including 30 individual claims relating to the construction of the OL3 nuclear power plant in Finland; the dispute involved claims and counterclaims with a total value of over €5.5 billion and involved extraordinarily complex issues relating to planning delays, process disruptions and quantification
• Advising a company on wast-to-energy-plants in Finland, Spain and Germany; advice on claims against subcontractors, in particular, on the area of defect components, warranty claims, LD’s etc.; representing client at court
• Advising on legal issues concerning the international enforcement of monetary claims based on a foreign legal title and representation in enforcement litigation
• Advising in an ICC arbitration regarding alleged defects, shutdowns and problems with availability at a power station based on a FIDIC contract
• Lead counsel on the successful defence of a claim by the operator in the amount of more than €300 million arising from a contract for the planning, construction and operation of German offshore wind farms
• Lead counsel to an EPC contractor in a series of legal disputes against the owner of a Swiss nuclear power plant regarding compliance with technical requirements, extension costs and various disruption claims
• Lead representation of a subcontractor in the defence of DAB proceedings under a modified FIDIC Yellow Book contract for a nuclear power plant in Hungary. The dispute concerned a claim of €120 million for damages, additional costs and consequential damages for loss of profit of the power plant over several months
• Lead counsel for the general contractor consortium on a €200 million oil and gas offshore project on the west coast of Senegal and Mauritania in relation to underground and subsea works and the construction of a liquefied natural gas hub terminal, drafting an extensive delay and disruption claim. Securing a settlement, with requested remedies in the form of extension of time and prolongation costs
• Co-lead counsel in more than 30 ICC arbitrations ranging from €2 million to €150 million on various technical issues (e.g., piping, civil engineering, HVAC, physical protection against terrorist attacks, tunnels, spare parts, price escalation, licensing issues, control room, etc.) in NPP new build project
• Advising a company in a DIS arbitration proceeding in connection with works at a nuclear power plant
• Advising a company in a DIS arbitration in connection with a steam generator regarding alleged damages for delay
• Advising a company in several court proceedings and mediation in connection with delays and disruptions at the construction of a flue gas desulphurization plant for a power station
• Advising a company in connection with arbitration proceedings in Kuala Lumpur, Malaysia under KLCRA rules for defects and failures in an EPCM contract
• Advising a company in an arbitration proceeding on a commercial dispute in Qatar under QICCA rules
• Project to extend the life of a nuclear power plant in Sweden: Lead counsel to a subcontractor in defence of delay damages and refusal to pay for additional work. Drafting a claim for delay and disruption in the amount of €80 million
• Advising a company in a DIS arbitration on a post M&A dispute regarding a civil engineering project
• Advising a company in connection with an accident in an industrial plant in connection with criminal and civil law issues; also advising in an arbitration under VIAG rules
• Advising a company in a series of court proceedings in Israel and the respective ICC proceedings regarding a commercial dispute
• Advising a company in a DIS arbitration proceeding in connection with a geothermal power plant in Europe
• Advising a company in court proceedings and interim injunctions against the unfair calling of bank guarantees payable on first demand
• Advising a company in Germany in connection with an ad hoc arbitration proceeding concerning a claim for damages due to the delayed installation of a toll collection system
• Advising a company in connection with the exercise of an option to sell shares to a leading private television group and its procedural enforcement by way of an interim injunction
• Advising a company in a legal dispute against a former co-owner in a joint venture regarding a failed non-cash capital increase, warranties and potential accounting fraud
• Advising a company in court proceedings and interim court proceedings against the unauthorized drawing in of a bank guarantee payable on first demand in South Africa
• Advising a specialized logistics company in the recycling industry and its shareholder regarding the acquisition of all shares and on litigation, including arbitration proceedings on corporate and accounting issues
• Advising a finance service group and its subsidiary in the leasing industry in a post M&A dispute
• Advising in a lawsuit for a global US-based multi-technology company in connection with the termination of a research and development joint venture agreement
• Advising and representing a DAX-listed company in court regarding the delivery of a defective core component for a large industrial plant
• Organization and supervision of the defense of product liability lawsuits worldwide for a DAX company (including the preparation of depositions and document production in the context of pretrial discovery according to US law)
• Advising and representing a company in defending alleged product liability claims in the context of mass litigation (more than 100 individual cases)
• Defense of claims arising from a supply contract (out-of-court advice and representation against a company based in Eastern Europe, risk assessment)
• Advising a company in the packaging industry in connection with the delivery of allegedly defective products
• Advising and representing a foundation in an expert determination proceeding concerning the determination of the purchase price of trademarks
• Advising on procedural issues regarding insolvency of a foreign debtor under foreign insolvency laws

Industry and energy plants as well as infrastructure facilities are our speciality.

• Advising the general contractor during all planning, construction and commissioning phases of the new nuclear power plant project OL3 (> €10 billion) in Finland, including the negotiation of several settlement agreements for several hundred million euros and the implementation as well as the representation of the client before a Standing Dispute Board
• New construction of an industrial plant on the area of producing materials for battery storage in Germany: Comprehensive and lead advice to the client in the area of engineering service, FEED, EPC / EPCM, offtake and long-term supply agreements etc. (value in dispute > € 500 million) 
• Heat Recovery Steam Generator (HRSG), Germany: Comprehensive and lead advice to a plant construction company on contract for work and services and subcontracting agreement in the Czech Republic (value of matter approx. € 65 million)
• Waste to Energy plants in Finland, Spain and Germany: lead advice on claims against subcontractors, in particular in the area of water-steam cycle, assembly problems, defective components, warranty, LD’s etc.; representation of the client in court (value in dispute € 1 – 10 million)
• Clean room and exhaust air system in UK: advising client on claims and counterclaims due to LDs and disruptions to construction (value of matter > GBP 10 million)
• Advising a company on H1 certificate under Pressure Equipment Directive
• Hinkley Point NPP new build project (UK): long-term contract management for a subcontractor specialising in piping, mechanics and ventilation of power plants. Advising, both under contract and in support, on a variety of nuclear transports (sea and rail), for example the transport of fuel assemblies from Japan to the reprocessing plant in La Hague (France) and the fresh MOX fuel assemblies to Japan 
• Green Hydrogen plant: comprehensive advice to client on various service and O&M contracts
• Advising a company on major damage to industrial boiler plant, enforcement of claims against subcontractors and insurer
• Advising several companies in EPC, EPCM, turnkey, FIDIC, NEC and other model and individual contracts in plant engineering and infrastructure projects worldwide, drafting and negotiating contracts, advising regarding claims and counterclaims, e.g. for delay, disruptions, LD’s, payment and performance issues, first demand guarantees
• Advising a company regarding the supply of services in cases of disruption in the construction process for which the contractual partner is responsible (contractual adjustment, obligation to supply services, right to refuse performance)
• Comprehensive contract and claim management advice on numerous international tunnel construction projects (underground/road) in England, France, Australia, Singapore
• Advising a contractor regarding his claim for remuneration for the planning and work services rendered in connection with a biomass power plant
• Advising on the construction of the Kimberlina Concentrated Solar Power (CSP) plant in the USA
• Advising a DAX-listed company on contract interpretation in the event of supply chain interruption (force majeure)
• Advising a company in an ICC arbitration regarding alleged defects, shutdowns and problems with availability at a power station, based on a FIDIC contract
• Advising a company in a DIS arbitration proceeding in connection with works at a nuclear power plant
• Advising a company in a DIS arbitration in connection with a steam generator regarding alleged damages for delay
• Advising a company in several court proceedings and mediation in connection with delays and disruptions at the construction of a flue gas desulphurization plant for a power station
• Advising a company in connection with arbitration proceedings in Kuala Lumpur, Malaysia under KLCRA rules for defects and failures in an EPCM contract
• Advising a company in connection with an accident in an industrial plant in connection with criminal and civil law issues; also advising in an arbitration under VIAG rules
• Advising a company in a DIS arbitration proceeding in connection with a geothermal power plant in Europe
• Advising a company in court proceedings and interim injunctions against the unfair calling of bank guarantees payable on first demand
• Advising a company in Germany in connection with an ad hoc arbitration proceeding concerning a claim for damages due to the delayed installation of a toll collection system
• Advising a company in court proceedings and interim court proceedings against the unauthorized drawing in of a bank guarantee payable on first demand in South Africa

Facts: In the course of an internal audit of a large concern, it comes to light that there were smooth payments made to a consultant in the Middle East in the aggregate amount of USD 250,000. The background is unclear. The consultant was hired locally and was not subjected to third party due diligence (TPDD). The management of the subsidiary reports via telephone that the consultant supposedly provided valuable support and other “technical” services in obtaining a significant contract. Everything would be legal, the headquarters should not worry.

Action Required: The management of a corporation or a partnership is legally required to investigate such suspicious facts, to examine them carefully and to prevent damage to the company. Furthermore, as part of its legal duty, they must organise and supervise the company so that there are no violations of law such as bribes are paid either to public officials or private individuals. The management is subject to a duty to organise. They must establish, supervise and maintain a compliance system designed for loss prevention and risk control. The extent required must be determined on an individual basis. Factors to consider are the type, size and organisation of the company, the regulations to be observed, the geographical presence as well as suspected cases in the past (majority opinion in jurisprudence and case law, see District Court (LG) München I, decision dated 10 December 2013 – 5 HK O 1387/10 “Siemens/Neubürger”).

In this case, the fact that there had been no TPDD of the consultant in question is already alarming – an indication of deficits in the compliance management system. This and similar situations require in each case a thorough and legally sound explanation. Further consequences may have to be carried out (e.g. personnel changes and or assertion of claims for damages against the executive bodies, see German Federal Supreme Court (BGH), decision dated 21 April 1997 – II ZR 175/95 “ARAG/Garmenbeck”). Complex negotiations with D&O insurers might follow.

Recommendation: Contact COMINDIS. We have comprehensive practical experience in the area of Compliance. We support you in the full process, during the necessary investigation of facts, selection and implementation of required measures and implementation or improvement of your compliance system.

Facts: In August 2021 you entered into an EPC-contract for the erection of a plant in Germany. Due to the war in Ukraine since February 24, 2022, and the resulting market conditions, there are significant claims from your subcontractors due to price increases of material and energy and delivery delays in the supply chain. The prices of materials to be used to build your facility and the energy prices have increased tremendously. You would now like to pass on these price increases and delays to your customer.  

Action Required: The Ukraine war is leading to price increases and delays in many economic areas. However, it is questionable whether this leads to a right to an adjustment of the contract. First, the contractual basis for a claim must be examined. Price escalation clauses or force majeure clauses come into consideration. If available, these clauses are to be examined in detail and contractual rights are to be seized in a timely manner. Furthermore, there may be a case of “frustration of contract“ (Wegfall der Geschäftsgrundlage). According to paragraph 313 subsection 1 of the German Civil Code (BGB), an adjustment of the contract can be requested if the circumstances which have become the basis of the contract have changed significantly after the conclusion of the contract and the parties would not have concluded the contract or would have concluded it with different content if they had foreseen these changes. According to the ruling of the highest court in Germany, the business basis of a contract is formed by the common ideas which the parties at the time of conclusion of the contract had in mind or by the ideas of one of the contracting parties that are recognizable and not objected to by the other party to the contract, concerning the existence or future occurrence of certain circumstances, provided that the intention of the parties to do business is based on this idea. The war in Ukraine came as a surprise to many companies in 2022. But are the price calculations as such a business basis? The question arises as to whose risk area these market distortions lie in? Is the contracting party that cannot provide the service responsible for the delay? Should the prices and schedule be adjusted? How are price escalation clauses to be effectively included in the contract? How can risks be contractually minimized? 

Recommendation: COMINDIS is your reliable partner in dealing with such case constellations. Due to our many years of practical experience in the field of international projects business, we can assist you in these and similar cases. We have many years of experience with claims and the defense of claims and will be happy to support you in asserting your claims both in and out of court.

Facts: On one of your plant construction projects in Eastern Europe, a customer threatens to draw a performance guarantee payable on first demand. He alleges defects in the plant. The customer refuses to accept the plant; although, he has been operating it for several months without complaint and there are obviously no serious defects. The bank contacts you and informs you that it will pay out the bond in the amount of €15 million to the customer in three days.

Action Required: The drawing of the bond might be unlawful. There are cases in which the drawing of a first demand bond may be an abuse of rights (“unfair calling”) (for further details see Decker in Legal Handbook Plant Engineering, Hrsg. Bock/Zons, 2.ed. 2020, Chapter V.7).

Recommendation: Immediate action is required. To avoid a negative impact on your company, you should contact us immediately. If appropriate, we apply for interim legal measures for you. Let us advise you. 

Facts: In one of your plant construction projects in South America with a contract price of €55 million, there are significant disruptions in the construction progress and a cost overrun in the amount of €10 million. In addition, your customer holds you responsible as the contractor for a delay even though he himself has not fulfilled significant duties to cooperate in the construction process (e.g. in the release of engineering documents). He demands liquidated damages in the amount of 0.2% of the contract price per diem up to the amount of 15% of the contract price and threatens to stop any payment.

Action Required: As in any plant engineering construction project, a careful analysis of the facts and legal review is required. Who caused what and when? How are the disruptions and the failed cooperation documented? Has the contractor given the customer notices about the disruptions or can that be done at a later date?

In addition, one should keep an eye on the dispute resolution mechanisms. Is there a Dispute Adjudication Board that accompanies the project or that can be formed on an ad hoc basis? This usually leads to faster and more cost-effective decisions.

Recommendation: Contact COMINDIS. We have years of practical experience in construction disruptions and the defense and enforcement of resulting claims, in state courts, arbitration proceedings and on the basis of other dispute resolution mechanisms.

Facts: Your sales department proposes a new project in Benelux. The terms of the contract call for a very tight schedule and substantial liquidated damages for delay. When you ask what provisions have been made for delays caused by COVID-19, your sales department references the force majeur clause. This is supposed to regulate circumstances for which neither party is responsible, they argue.

Action Required: Is that correct? Would it then be advisable to approve the project? The answer to these questions requires a thorough review of the force majeure clause. Many clauses contain a conclusive list of force majeure events. If a pandemic is not listed, it may not be considered a force majeure event. Furthermore, most force majeure events contain an element of unforeseeability. This means that only circumstances that were not foreseeable at the time the contract was concluded would be considered force majeure events. Great caution is required here! In many countries, COVID-19-related restrictions have been imposed. Even in Benelux with a second wave of COVID-19 infections, corresponding restrictions on public life have been put in place. Would the intended force majeure clause apply in this situation?

Recommendation: Contact us. We have years of practical experience with the common clauses in plant engineering construction law and other project contracts.