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In this issue:
Risk & Compliance
Information Law & TMT
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MLex: The future of data flows between the EU and the UK remains uncertain as the negotiations over a data adequacy decision for the UK have ‘have gone a bit more slowly than we thought’, the UK’s chief negotiator David Frost said on 7 October 2020. See News Analysis: UK’s EU data adequacy decision uncertain as talks bog down.
AML and financial crime prevention
Director of the Serious Fraud Office (SFO), Lisa Osofsky, has delivered a speech at the Royal United Services Institute in which she considered the future challenges in economic crime. See: LNB News 09/10/2020 23 and News Analysis: SFO faces challenge to global reach at top UK court.
The SFO has announced that former Unaoil executive, Basil Al Jarah, has been sentenced to three years and four months in prison for paying more than $17m in bribes to secure approximately $1.7bn worth of contracts in Iraq. See: LNB News 09/10/2020 30.
The Law Society has published its response to the government consultation on the introduction of an economic crime levy on anti-money laundering (AML) regulated businesses. The Law Society strongly opposes the imposition of the levy and warns that a levy based on revenue could be harmful to the legal profession. See: LNB News 14/10/2020 70.
The Office of Financial Sanctions Implementation (OFSI) has published its annual review for 2019–2020. The report outlines the OFSI’s work on UN and EU financial sanctions regimes, UK counter-terrorism asset freezes, frozen funds review, compliance and enforcement, licensing, outreach and communications. See: LNB News 09/10/2020 65 and News Analysis: Reports of breaches of UK sanctions reach almost £1bn.
Transparency International has published a report rating the performance of 47 global exporters in tackling foreign bribery by companies operating abroad. See: LNB News 13/10/2020 52.
The information on the Companies House register is searched more than five billion times per year. The value of the register to businesses is huge and it is clear that, given its prominence, the information available needs to be as accurate and transparent as possible. Unfortunately, however, there are problems with the current model that allow criminals to abuse the system. New reforms proposed by the Department for Business, Energy & Industrial Strategy amount to the biggest overhaul to the system since its introduction in 1844. Angharad Hughes, barrister at 3 Temple Chambers, discusses the effects of the reforms and their impact on business owners and those fighting economic crime. See News Analysis: The role of Companies House in the fight against economic crime.
Syed Rahman, legal director at Rahman Ravelli, discusses the increase in cybercrime during the coronavirus pandemic. See News Analysis: Accelerated digitisation and cybercrime in a post-COVID-19 world.
MLex: UK and EU traders risk the prospect of fines, delays and border barriers due to their ‘head in the sand approach’ to customs preparedness for Brexit, a top UK customs official has warned. See News Analysis: Traders’ lack of Brexit readiness a major concern, UK customs official warns.
The Department for Environment, Food & Rural Affairs (Defra) has published new guidance highlighting updates to existing guidance documents to include new information on return of rejected exports and specific procedures at EU border control posts from 1 January 2021. See: LNB News 08/10/2020 75.
The government has published a revised version of its GB-EU Border Operating Model providing further detail on plans set out in the original model published on 13 July 2020. See: LNB News 08/10/2020 98.
Customs (Transtional Arrangements) (EUExit) Regulations 2020, SI 2020/1088: This enactment amends seven pieces of UK secondary legislation in relation to customs in preparation for IP completion day. It comes into force partly on 29 October 2020, and fully on such day as the Treasury may appoint. See: LNB News 08/10/2020 46.
The Department for Transport (DfT) has announced that medical supplies and other essential goods will continue to be ‘smoothly’ delivered into the UK after IP completion day, following the completion of contracts collectively worth £77.6m between the government and four ferry operators to provide capacity equivalent to over 3,000 heavy goods vehicles per week. See: LNB News 14/10/2020 41.
The EU Services Sub-Committee has published a report titled ‘The future UK-EU relationship on professional and business services’. It follows an inquiry held by the Committee which found that ‘the needs of this hugely important sector have been overlooked by the Government during negotiations’. The report analyses the ‘big impact’ that future UK–EU agreements will have on this sector, particularly on smaller operators. See: LNB News 13/10/2020 45.
Advertising, marketing and sponsorship
The Information Commissioner’s Office (ICO) has issued a £40,000 fine to Studios MG Ltd, a software consultancy, for sending 9,000 unlawful marketing emails selling face masks during the coronavirus pandemic. See: LNB News 08/10/2020 65.
The Advertising Standards Authority (ASA) has published a report on the subject of trends in advertising during the coronavirus pandemic. See: LNB News 09/10/2020 20.
Dispute Resolution analysis The Court of Justice has confirmed that a ‘consumer’s domicile’ within the meaning of Article 18(2) of Regulation (EU) 1215/2012, Brussels I (recast) means the consumer’s last known domicile at the time that the proceedings are commenced, not at the time that the underlying contract was entered into. Written by Richard Clayman, senior associate at Kingsley Napley. See News Analysis: Court of Justice confirms the relevant time for determining a consumer’s domicile (mBank v PA).
Sale and supply of goods
J Mark Rowbotham, consultant at Portcullis ISC, discusses the government’s freeports policy, upon which it consulted between February 2020 and July 2020, the benefits such a policy will bring to the economy in general, and to UK businesses in particular, and what further measures the government needs to bring in to leverage the opportunities of freeports. He also considers the EU’s approach to freeports and free zones and suggests how businesses can prepare to take advantage of them. See News Analysis: Analysing the benefits of UK’s freeports policy.
The CEO of the Competition and Markets Authority (CMA), Andrea Coscelli, has given a speech at the New York’s Fordham University concerning the need for digital reform and offering the latest thoughts on a new regulatory regime. See: LNB News 09/10/2020 71.
The government has published its response to the Digital, Culture, Media and Sport Committee’s Second Report of Session 2019-21 on misinformation amid the coronavirus infodemic. The government acknowledged the importance of the public having accurate information, particularly amid the pandemic, and expressed an intention to publish its full response to the Online Harms White Paper consultation before the end of 2020, with legislation to follow early in 2021. See: LNB News 14/10/2020 87.
Public company takeovers
Lexis®PSL Corporate and Market Tracker has conducted research to examine the current trends in UK public M&A for the period 1 July 2020 to 30 September 2020. Data for this report has been sourced from the Market Tracker transaction data analysis tool which allows users to access, analyse and compare the specific features of numerous corporate transactions. This is an update to our Market Tracker trend report—trends in UK public M&A deals in H1 2020 in which we examined firm and possible offers announced in the first half of 2020. See News Analysis: UK Public M&A Trend Report update—1 July–30 September 2020.
Companies House has announced that its latest release of its 'Upload a document to Companies House' service allows users to upload share capital documents. See: LNB News 01/01/0001 2659.
Company disclosures, records and registers
The FRC has published a discussion paper ‘proposing a future for corporate reporting based on a principles-based framework’. It sets out an outline for a more ‘agile’ approach to corporate reporting and considers ‘common criticisms’ such as the length of the annual reports and the difficulties with obtaining information. The deadline for responses is 5 February 2021. See: LNB News 08/10/2020 35.
The Information Commissioner, Elizabeth Denham, has spoken about data protection during the coronavirus pandemic, in a speech delivered by video at PDP’s 19th annual data protection conference. See: LNB News 09/10/2020 10.
The Prime Minister has issued a press release setting out the government’s new three-tiered system of local coronavirus alert levels in England. See: LNB News 13/10/2020 81.
HM Treasury has announced that the coronavirus Job Support Scheme (JSS) is to be expanded to all UK firms which are legally required to close due to the pandemic. See: LNB News 09/10/2020 73.
HMRC has published guidance on the notification requirements for businesses which received one of the first two grants under the Self-Employment Income Support Scheme (SEISS) and have since stopped trading. See: LNB News 14/10/2020 74.
The Department for Work and Pensions (DWP) has published guidance for employers who are looking to make use of the Kickstart Scheme. The Scheme provides funding to employers to create new six-month job placements for young people currently on Universal Credit and at risk of long-term unemployment. See: LNB News 13/10/2020 13.
Chris Wilson, Senior Associate at CMS Cameron McKenna Nabarro Olswang LLP and Andrew Lyons, Counsel at Ropewalk Chambers, have considered the case of Chell v Tarmac Cement and Lime Ltd  EWHC 2613 (QB), in which the High Court considered on appeal whether the Judge at first instance applied correctly the test for vicarious liability and whether an employer is directly liable for the injury caused to a third party after an employee’s practical joke went wrong. The High Court held that in the circumstances the employer was not vicariously or directly liable for an employee engaging in a practical joke as it was outside the scope of the ordinary course of his employment and that it would not be fair and proper to hold the employer liable for such an act. It was also held that it would be unreasonable for an employer to be expected to risk assess generally for horseplay, ill-discipline or malice when a full and comprehensive health and safety assessment addressing specific and more serious general risks was in place. See News Analysis: Employer not directly or vicariously liable for personal injury from practical joke gone wrong (Chell v Tarmac).
The Office for National Statistics (ONS) has published an analysis of ethnicity pay gaps in Great Britain for a second year. See: LNB News 13/10/2020 19.
The Home Office has published new guidance on employing EU citizens in the UK to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates. See: LNB News 14/10/2020 36.
Popular Q&As - Risk & Compliance
● Does the obligation to report a discrepancy about a beneficial owner on the person with significant control register by an obliged entity extend to updating an absent middle name shown in our identification documents?
● Under the US Sanctions regime, if any entity is owned in the aggregate, directly or indirectly, 50% or more by one or more blocked persons, it is itself considered to be a blocked person. What are the equivalent rules regarding minority ownership and/or control which apply under the UK/EU regime?
Popular Q&As - Commercial
● Are distributors required to supply their customers with CE mark certificates and do distributors have a legal obligation to keep records relating to CE certification for products sold by them? Do these responsibilities change if the distributor is the importer of goods into the EEA and/or selling the goods under their own label?
● Where a group company structure has been set up by a local authority, is the 80% calculation of a company's activities for its controlling authority under regulation 12 of the Public Contracts Regulations 2015, SI 2015/102, calculated with reference to the group or each individual company?
● Where a no-challenge clause is included in a trade mark licence, is this likely to fall foul of competition law? Does it make a difference if the licence is exclusive or non-exclusive?
Popular Q&As - Corporate
● In circumstances where a company cannot be restored because the six-year period has expired, is there a way in which a chose in action can be acquired from the Crown?
● What is the best way to contact Companies House and pay fees and penalty fines?
● What is the default position where a company’s articles of association contain no valid procedure for appointing directors?
Popular Q&As - Employment
● Given the new rules requiring staff in certain settings to wear face coverings, does refusal to wear a face covering when required by law or by the employer (as a result of its risk assessment) amount to misconduct? Who should provide the face covering?
● Is an employee’s right to maternity leave and statutory maternity pay affected by the fact she is on a career break due to health-related issues and is not due to return to work until after the birth?
● If an employee refuses to self-isolate in accordance with a legal requirement under The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 or government guidance, can the employer treat that refusal as an allegation of gross misconduct that might lead to summary dismissal?
● If an employment contract requires notice of termination ‘in writing’ but does not define what this means, would notice by email constitute effective service? Can an employee argue that notice of termination has not been effectively given if it is served by a method not expressly set out in the contract?
● If an employee is dismissed because they cannot do the job for which they are employed without breaching an enactment (for example, someone employed to work as a driver loses their driving licence), can they be dismissed without notice (and pay for the period of notice)?
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