English Court of Appeal lends further support to the contractual freedom of parties to agree broad exclusions of liability, including consequential loss In a recent judgment of real importance to offshore oil and gas exploration, the English court has rejected a challenge to the ‘knock-for-knock’ principle on which the drilling contractor business model is founded. Wide-ranging indemnities are common in offshore drilling contracts and are a way of creating certainty in respect of apportionment of risk. Under the ‘knock-for-knock’ principle, the basic premise is that each party bears its own risk. Therefore, although drilling contractors can incur reduced or zero day rates and be exposed to termination, they are otherwise often not thought to be liable for any delays and losses suffered by the oil company. In recent years, there have been a number of attempts to challenge that principle. In the main, those challenges were resolved through negotiation, but now in Transocean v Providence1 the Court of Appeal has decisively upheld the principle. Where the wording of exclusions of liability is clear, English courts will enforce ‘knock-for-knock’ clauses.
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