Monaco. Conexus Law is coming for you!

Conexus Law is attending Data Cloud Congress in Monaco

Ed Cooke and Nancy Lamb will be there #datacloudglobalcongress meeting current and future clients and contacts.

Please contact Ed Cooke and/or Nancy Lamb for a scheduled catch-up. Otherwise we look forward to seeing you around and about!

Ed Cooke joins the Digital Infrastructure Advisors Panel at Data Centre World London

Day one at Data Centre World London and Conexus managing partner Ed Cooke is joining the Digital Infrastructure Advisors panel discussion hosted by The DCA (Data Centre Alliance)’s Steve Hone. The 30 minute ‘Connecting the Digital Dots’ session starts at 12.25 in the Edge & Future Strategies Theatre and will explore how investors and customers can overcome current security, legal and sustainability challenges. Other panel members, all members of the DIAL advisory board, are Stephen Whatling, CEO Keysource, Stephen Lorimer Technical Director Keysource and
Jim Hart CEO Business Critical Solutions (BCS).

Stephen Whatling, will outline how newly launched DIAL, as a multi-disciplinary advisory team, can support clients. The discussion will finish with a Q&A.

DIAL is specialist group with CEO Mike West, providing a range of advisory services to corporates, investment funds, and owners and operators in the data centre market and the wider digital infrastructure arena. Current projects include private and public facilities, colocation and hyperscale developments across the globe.

To find out more about the Digital Infrastructure Advisors, please contact Ed Cooke.

Working in the Indian Data Centre Market

In 2020, the Indian Ministry of Electronics and Information Technology announced its draft Data Centre Policy, designed to make the country more attractive for domestic and foreign investment into the data centre sector. In this article, Ed Cooke, Founder at Conexus Law, shares some of his experiences of working on Indian projects including some of the key differences in design and construction contracts.

The vision

The government’s vision is to make India a global data hub, primarily by promoting the data centre sector to give it infrastructure status and creating a benign regulatory environment. Plans also include establishing Data Centre Economic Zones with high-quality power and connectivity infrastructure, water and other utilities, and creating financial incentives, particularly for the use of Indian-manufactured equipment and hardware. In fact, certain state governments, such as the states of Tamil Nadu and Uttar Pradesh, have already announced state-wide policies to encourage data centre development.

Over the past few years, a number of global data centre operators have announced investment partnerships focused on the Indian market. These include the recently announced joint venture between Digital Realty and Brookfield Infrastructure Partners, Yondr’s venture with Singaporean Everstone Group, AdaniConneX (a JV of EdgeConneX and Adani Group), and announcements of hyperscale data centre developments by the likes of CapitaLand, Hiranandani, NTT, and STT GDC. In fact, Mumbai, Hyderabad, Chennai, Bangalore and Delhi are already well advanced as important locations to serve the increasing Digital Transformation among the Indian domestic market and the global communications market. Mumbai, in particular, has been the premier choice for hyperscale developments due to its infrastructure availability and proximate subsea landing stations.

Understanding the differences

At Conexus Law, we have recently been working for US and European based clients on the construction of hyperscale size data centre projects in India. As commercial and legal advisors specialising in technology infrastructure, one of our regular tasks is to help clients enter new markets.

This includes helping them to understand the legal, commercial and cultural differences compared to operating in their ‘home’ environment. We always work with local partners and it is a part of our work that we really love doing.

The Indian legal system is fashioned on English common law, but overlayed with Indian legislation and regulatory laws. Indian court judgments set precedent and so it is important to understand both the legislative and common law context in which you are working.

In our experience, most data centre construction contracts in India are either based on a bespoke form of contract or a FIDIC standard form (usually a Yellow Book). There are also other inevitable regional differences.

Areas to focus on

As an example, labour and the supply chain are a huge and complex area in India and we often get involved in advising clients on their approach to procurement, and to monitoring second and third tier suppliers. Performance security, bonds and third-party guarantees/letters of credit are extensively used on large construction projects in India and we play a role in monitoring these. Also structuring payments against milestones – in particular protections around advance payments – are, in our experience, common in India.

The quality and workmanship – and in particular compliance with local and international codes and standards – is an area of real focus and aligns with detailed staged and integrated commissioning processes. There are also a number of compulsory insurances required in India alongside those which would normally be expected by an international client.

Cultural considerations

When we are negotiating in a different country or culture, we work hard to understand how the approach of our negotiating partner might differ from your own. It is always risky to try to characterise a whole nation or culture by a set of rules and so there needs to be a lot of ‘finding your way’ with the relevant individuals. However, we find cultural frameworks such as the well-known Geert Hofstede index, can be useful as a starting point. For example, through that, we learn that Indian culture scores highly in relation to its appreciation of hierarchy. It is therefore important to establish early on where the individuals we are negotiating with fit and ensure that either negotiations on specific points are conducted at the right level. An alternative is to provide enough justification for our stance to enable the individual to take the decision back to his or her superiors and make a convincing argument. It is quite easy to cause offence by not respecting the hierarchical structure (perhaps by seeking to jump a level in order to get faster resolution of an issue). To the western negotiator who is often time pressured, negotiating can feel like a very slow process but it is important to temper frustrations for the long-term goal. Also remember, as with many Asian cultures, that the term ‘yes’ is often used to indicate understanding of the point being made, not agreement to it. In our experience, this can cause clients great difficulty when they report that an issue has been closed out, only to find it has not been.

In conclusion, investment in digital infrastructure is happening at scale in India and there is a vast amount of further potential in this market. In fact, investment in the Indian data centre market is expected to reach US$8 billion by 2026. There are inevitable challenges in meeting the demand of a very tech-enabled population and business sector quickly enough, with reliable infrastructure to overcome historic under-investment in the region, such as quality construction and availability of highly qualified labour. We are proud to be part of it.

How to Ensure Stadiums are Built on Time

Ian Timlin, head of sport at Conexus Law explains how to make best use of the law to ensure your stadium is built on time, on budget, on spec and generating revenue.

If the mantra “Plan, plan and plan again and build in extra contingency” ever applied, it is in relation to the construction of stadiums.

As Bath Rugby Club are finding out in the Court of Appeal (hearing 5 Oct 2021), you need to start with the basics and establish whether you can legally do all that you want at the site. Bath Rugby Limited (“BRL”) hold a long lease of an area in the centre of Bath used for playing rugby and football, known as “the Rec” and are planning to develop that area. However, the beneficiaries of restrictive covenants in respect of the Rec obtained a High Court ruling in September 2020 preventing BRL’s proposed development. Hence their time consuming and costly visit to the Court of Appeal in late 2021.

In tandem with the above, whilst proper site surveys, scoping of works and funding and budgeting, consideration of any likely backlash to the development, getting all stakeholders on-board, getting the legal agreements in place in good time, having a realistic project programme and contingency on many fronts are required, we explore below other matters that are in our experience are unique to getting your stadium built on-time, on-budget, with satisfactory quality and so it generates revenue.

  • Normal expectations for competitive tendering do not apply. For example, you go out to 6 main contractors for competitive build costs. In our experience, for certain specialised packages of the build (eg seating) all 6 potential main contractors come back with seating prices from the same or say two seating sub-contractors because of the limited supply pool. So how do you get competitive and transparent pricing? You need transparency in the tender process to understand what makes up the pricing of the proposed main contractors’ packages. You may even need to obtain and pass on the results of your own investigations for bespoke packages to proposed main contractors, or adopt a procurement approach which is more akin to management contracting.
  • Very large bespoke packages only available from limited suppliers often need a long lead time depending on other stadia being constructed in your region/continent at any given time. The procurement of the seating package is paramount and must be given early consideration and priority as should complex M&E elements.
  • You must absolutely adhere to the requirements of the sports’ governing body for the stadium’s proposed use/s especially regarding the playing surface and arena configuration requirements or player’s facilities (eg the construction materials and measurements of a running track or dimensions of a football pitch and dressing rooms and hospitality).
  • The views of stakeholders (eg athletes, local residents, governing bodies, disability groups, emergency services, health and safety, hospitality, fans, tv and media, match day or event operations, non-match day revenue generation, future maintenance operations) must be canvassed early to decide what of their views and requirements can or need to be incorporated in the proposed development.
  • In respect of stakeholders, do not underestimate the impact of television, media and smart technology on your stadium. Facilities must be appropriate and future proofed to accommodate television, media and smart technology (eg smart turnstiles and hospitality and food and beverage offerings equipment and offerings) with more than adequate data connectivity.
  • The traditional legal tool to try and get any construction project delivered on time is liquidated damages – a pre-agreed daily/weekly amount to be paid to the employer by the contractor for late completion of the construction project. However, in our experience on a mission critical stadium construction project (eg the London Stadium for the 2012 Olympics), no amount of accrued daily/weekly liquidated damages (however large) is going to compensate for the stadium not being ready for its planned event. The reputational damage to the employer, governing body and contractor plus the costs of moving an event to another stadium does not bear thinking about (eg moving TV, media, officials, competitors, training grounds and accommodation to an alternative existing venue). So creative thinking needs to be brought to bear to this issue. For example, you may not engage the cheapest main contractor on price but the one with the largest reputation to protect and who demonstrates in the tender process the serious steps that it will take to protect its business reputation whatever.
  • Consequently, stadium construction must be subject to the tightest of regular programme management, an understanding of what is on the critical path at all times, accurate, truthful and honest information flows from the contractor to the employer and its professional consultants and vice versa, quick and straightforward dispute escalation and resolution processes. The project culture must be open and collaborative in actions as well as words and be backed up with adequate legal drafting in contractual documents if any party decides to deviate from that path. All team members should understand schedules and deadlines before construction begins.

The state of the art Tottenham Hotspur Stadium which opened late in April 2019 at a reported cost of circa £1billion (seating capacity of 62,850), being a multi-purpose stadium featuring the world’s first dividing retractable football pitch, which reveals a synthetic turf field underneath for NFL games in London, concerts and other events which includes smart tech such as the revolutionary bottom of the beer glass filling in the longest bar in Europe (65 metres), shows how far stadium have progressed and the trials and tribulations faced in their construction.

Contributors to this article were Ian Timlin, head of sport, Ed Cooke, Conexus managing partner and Earle Brady, specialist construction and engineering lawyer. Legal advice in the sports sector includes acting as one of the principal construction lawyers working for the London 2012 Olympic Games and Paralympic Games; and advising two Premiership football clubs over a period of 15 years on construction and engineering projects in and around their stadia and including two significant stadia extension projects.

For further legal advice in the sport sector, please contact Ian Timlin via his contact details below.

Ian Timlin
Main: +44 (0)20 7390 0280
Mobile: +44 (0)77 6742 7332
[email protected]

The Queen’s Speech May 2021 – Legal Update

This year’s Queen’s Speech contained several points that are relevant to our clients and the sectors we operate in. We have pulled together a list of the relevant legislative proposals, some of which were already known about, or carried over from the previous parliamentary session. We will continue to monitor the progress of these and provide timely updates.

ADVANCED RESEARCH AND INVENTION AGENCY BILL

This Bill is about developing the Life Sciences sector so it attracts people and business from across the world. This includes increasing public expenditure on research and development to £22 billion and creating an Advanced Research and Invention Agency which will be focused on funding high-risk, high-reward research and development.

PLANNING REFORM

Reforming planning laws and improving building safety were central to the Queen’s Speech. The change in planning laws to increase the number of new houses being built was announced proposals for areas which will be designated for growth, protection or regeneration, with developments in growth areas being harder for local opponents to block. The speech also made reference to the ongoing overhaul of the Building Regulations system in the UK with The Building Safety Bill still going through parliament.

PRODUCT SECURITY AND TELECOMMUNICATIONS INFRASTRUCTURE BILL

This is designed to ensure that smart consumer products, including smartphones and televisions, are more secure against cyber-attacks, protecting individual privacy and security. It also includes a commitment to the roll out of 5G mobile data coverage and gigabit-capable broadband to support better telecommunications coverage and connectivity.

TELECOMMUNICATIONS (SECURITY) BILL

This will give the Government new powers designed to ensure the long-term security and resilience of the UK’s telecoms networks and infrastructure and minimising the threat of high-risk vendors. It will also strengthen the security and oversight of technology used in telecoms networks including the electronic equipment and software used across the network which handle internet traffic and telephone calls.

ONLINE SAFETY BILL

The Online Safety Bill has been highly publicised and aims ‘to make the UK the safest place in the world to be online’, improving protections for users, especially children, whilst protecting freedom of expression, making companies responsible for their users’ safety online, and supporting a thriving and fast-growing digital sector. This will likely mean working with the industry to ensure there are clear legal definitions of what constitutes harmful online content, setting out the responsibilities that companies of different sizes have to observe and establishing clear codes of practice.

Conexus Law Launches New Service to Help Organisations Mitigate “Brexit Risk”

Conexus Law, the specialist provider of legal advice to businesses operating at the intersection of the built environment, technology and people, has launched a Brexit Contract Management and Audit Service. It is designed to help address the many unresolved issues following the Christmas Eve Agreement.

The new service will help organisations manage any potential contract risks and assess existing contractual arrangements that may require attention to ensure continuity of commercially viable relationships post BREXIT. It will include a full audit of all contracts including a review of standard terms and conditions (both signed and those under negotiation), and any bespoke contracts with both suppliers and customers, together with business contracts which touch every business area whether it be IT, purchasing, product, sales and marketing, office services, facilities maintenance, logistics or outsourcing.

In addition advice will be given as to whether a contract has a mechanism or opportunity to exit or re-negotiate its terms should this be necessary. While the service will focus on arrangements with EU suppliers or customers, it can include the full suite of contracts globally (including UK to UK contracts and UK to non-EU contracts).

Brexit will also impact trade between the UK and global markets and between the EU and global markets, with likely increased customs and duty requirements and costs. All of this will be taken into account when setting the scope of the contract audit.

Ed Cooke, Founder at Conexus Law, said: “Although The Christmas Eve Agreement gave some clarity, businesses continue to be faced with uncertainty. There are clear implications for many areas such as supply chains, imports and exports and employment that will affect the technology and datacentre sectors and our service will ensure full visibility of the commercial impact of Brexit on the business.”

HOW CAN CONEXUS LAW HELP?

Businesses and individuals will need legal advice to help them understand the risks they may face and the options that may be open to them.

We are available to assist in reviewing the laws in many jurisdictions across the world, and to review specific contracts. We are also available to provide practical, business-orientated advice on how to best protect yourself from the ongoing commercial effects of Brexit.

Contact

For further advice on mitigating Brexit risks, please contact Ed Cooke.

T: +44 (0)20 7390 0281
M: +44 (0)7535 123000
E: [email protected]

Data Centre Alliance talks to Ed Cooke

We have completed a series of three briefings with the DCA.

In this first webinar, Steve Hone from the Data Centre Alliance speaks to Ed Cooke and looks at the value of relationship contracting.

 

 

Conexus Law – One year on

Time is a funny thing. Sometimes it drags, and sometimes it flies by. I think many of us have experienced a bit of a time warp over the past few months of Zoom calls (“How can it be Friday already?”). And now, Conexus Law is a whole year old, so it seems like an appropriate time to reflect on what has been a very odd, but for me a very exciting and reaffirming, year.

Little did I know that, in addition to the normal challenges of a start-up – just six months in we would be confronted by a global pandemic. Honestly, that had not been on my list of things to worry about.

I decided to set up Conexus Law with a belief that we could create a law firm fit for the 21st century, and a determination to do just that.

I have spent most of my career at two global law firms and had made partner at an early age. Over time I came to realise that the world had moved on, the aspirations of my team were not what they had been, the demands of our clients had changed, but the traditional law firms I was working in were not innovating quickly enough to respond. I set myself four priorities for Conexus Law.

Team. Of course, my first priority was people – law firms are nothing without a premier league team. I’ve seen an exodus of people from the profession – talented lawyers who had left because of the pressures of work and the difficulties of managing a personal life alongside their careers. So, even before WFH recently became the norm, we had created a distributed law firm. Our team works from home, our office or a client’s office – whatever works best to get the job done.

We also offer flexible career paths. If they wish to, our lawyers can start out as consultants, then become employees or partners, and at any point they can take a side-step to being a consultant again, if their life demands require them to. By providing this flexibility we can tackle the lack of diversity in our profession which is critical in enabling us to see our clients’ issues from all perspectives. I’m proud to say we have the most diverse team of people I have ever worked with. Throughout the pandemic lockdown, whilst other law firms are announcing redundancy rounds, we have grown from 2 to 12 – and we are actively recruiting.

Clients. We’re delighted that our clients have continued to put their faith in us to deliver. We’ve a fantastic group of clients who are at the forefront of their sectors, making huge investment and constantly innovating. Helping them to overcome challenges truly makes our jobs worthwhile.

As a result of Covid-19, we found many of the projects our lawyers had previously worked on immediately landed back on our desks – force majeure, supply chain issues, lockdowns, contract renegotiations. The immediate aftermath was a very busy time for us, which to be honest we were not quite prepared for. I’m glad to say that most of the issues that could have become very tricky seem to have been resolved in a cooperative, non-adversarial way. August and September were, in all honesty, a bit slow whilst our clients took a well needed break, regrouped, and worked out what to do with their future investment plans. I know others felt the same challenge and for us, like them, everything is back to full speed again this month. In addition to Covid-19 related work, we’re busy on massive new projects in India, Japan, across Europe and in the UK.

We know clients hate hourly rates. But here’s the secret – lawyers hate them too. They are a blunt instrument and rarely reflect the value of work delivered. So, we are working to create a firm where the focus of billing and performance management is upon output (value delivered) rather than input (hours worked). We’re in active discussions with a number of clients now on how we can deliver legal services in that way. That excites me.

Expertise. I also wanted Conexus Law to be really focussed as traditional law firms have a “fear of missing out” and so they try to be all things to all people. Conexus Law takes a confident stand. We focus on four sectors – Built Environment, Technology Infrastructure, Digital Business and Emerging Technology. We are passionate and inquisitive about those sectors. That means we can deliver creative legal advice informed by a real contextual understanding of the markets our clients operate in.

Innovation. Being a young law firm means we are not constrained by past investments in legacy technology. We’ve been very lucky to find partners like Hyperscale and Inspire-365 who have expertly guided us in surveying the whole market for best in breed technology solutions. As a result, we have moved away from proprietary products, and have implemented systems that will give us rich data and insights, and that will integrate across the whole of our digital environment.

Our first year has been more successful then I hoped for, on every metric. We’ve learnt huge amounts, been extremely resilient to forced change, and grown despite economic uncertainty. I want to thank our team and everyone who has helped us to build something really special – we’re looking forward to developing long term relationships with you all.

Lawyer warns construction companies of the challenges of ‘virtual mediation’ as a result of Covid-19

Organisations that are looking to use mediation as a way to resolve a dispute without the need for costly litigation need to be aware of the impact that the Covid-19 pandemic will have on the process in the coming months, and the potential pitfalls and challenges.

This is according to Ian Timlin, a specialist dispute resolution and commercial litigation lawyer at Conexus Law, who cautions that the new process may not be as effective and is also less secure unless certain measures are put in place.

Ian explains: “From a practical point of view it has been relatively straightforward to bring mediation online with Zoom for example being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session. The mediator can then speak to each party separately or with the parties together, virtually switching online from room to room.

“However, this does mean that things are not necessarily as secure as in a physical situation. As a result, we are advising that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules that are to be adhered to. It should cover areas such as not recording the sessions or sharing of the mediation meeting ID other than to participants involved to ensure no one ‘sits in’ unannounced.

“Also each party should agree that if for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, they can see and/ or hear a private conversation between the mediator and/ or any other party, they must terminate the session at once and call or text the mediator.”

However, Ian goes on to say that the biggest challenge remains the fact that it is much more difficult to establish a genuine rapport across a screen with the mediator and other parties and this is key in mediation to gain a parties’ trust and confidence.

“Before people are willing to settle, they must feel that their interests are truly understood, and only then can a mediator reframe problems and float creative solutions. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room and therefore it is vital that participants show their faces and do not hide behind their name on a black screen or stock photo of themselves. That way each party and the mediator can see how they are reacting to the points being made,” he explains.

Ian also points out that whilst online mediation is new to many organisations, Ebay is a big user and it is estimated that an incredible 50+ million disagreements amongst traders on eBay are resolved every year using online dispute resolution.

“There is no doubt that virtual mediation is here to stay and is certainly appropriate for low value disputes. However, where considerable sums are in dispute or complex issues arise, serious consideration should be given to the traditional form of mediation even in the current circumstances,” concludes Ian.

For more information, Ian has created a guidance sheet, Mediations in the time of Covid, alongside another fact sheet, Renegotiation – An art not a science.

Law firm warns of Post Brexit GDPR impact

Conexus Law, the specialist advisory firm that provides legal and commercial advice to clients who work in sectors where the built environment, technology, engineering and people converge, is urging companies to prepare for the strong possibility that the EU will fail to agree that the UK has an “adequate data protection regime” after the transition period at the end of the year. This will mean that businesses will face barriers transferring personal data to and from the UK to EU countries under GDPR. The warning comes on the back of the ruling by the European Court of Justice at the beginning of July that reversed the prior adequacy decision of the EU for the USA – rendering its Privacy Shield ineffective.

Ed Cooke, Founder at Conexus Law said: “The UK’s use of mass surveillance techniques, our Investigatory Powers Act, and our membership of the Five Eyes intelligence sharing community has raised particular concerns with the EU – especially in relation to the sharing of data with the US, and even more so given the recent Schrems II decision on the Privacy Shield scheme. What is clear is that once a decision has been made then companies will need to move quickly to ensure they are not severely impacted.”

Failure to reach an agreement would mean that companies will need to look at alternatives such as Standard Contractual Clauses and binding corporate rules. Ed reiterates that merely relying on consent is not really an option for most businesses.

“Each of these options has its challenges with consent generally viewed to be unworkable as it can be revoked at any time. Standard Contractual Clauses were upheld in the ECJ in its judgment on Privacy Shield, but the judges did cast some doubt on whether or not these offer suitable protection in all cases without businesses adopting further practical measures such as encryption, to ensure the protection of personal data,” explains Ed.

Conexus Law is advising companies to start preparing now. Companies should already have a full audit of what personal data they collect and where it is stored and transferred to, including back-ups that may be held by cloud-based providers with datacentres all over the world. This audit needs to include all suppliers and partners that data is shared with. The next stage is to look at standard contractual clauses and decide whether further measures are required based on the specific data being transferred. If not, consideration should be given additional methods such as encryption.

“It seems that an adequacy ruling under GDPR is being used as a BREXIT bargaining chip in relation to other unrelated diplomatic negotiations taking place. Unfortunately, businesses may end up bearing the brunt of this and I would highly recommend that they start to prepare now,” concludes Ed.