Latest Legal and Regulatory news update - 10th September

Latest Legal and Regulatory news update - 10th September

In this issue:

In-house

Risk & Compliance

Commercial

Corporate

Information law and TMT

Employment

 


 

In-house

Virtual networking and forum events

There’s no need to feel isolated if you are working from home—join one of our virtual networking or forum events. Even if you aren’t working from home, take some time to network with your peers, find out what challenges they’re facing and how they are meeting those challenges.

 

22 September 2020
Senior counsel virtual discussion forum
Register now to attend

Chatham House discussion on how in-house legal teams are preparing for a probable second COVID-19 wave.
What should you consider around employees, customers, contracts and your supply chain? What contingency plans and approaches are other legal teams taking to proactively influence organisational planning? Hear from peers, share experiences and discuss best steps to protect your organisation from the ongoing impact of the coronavirus pandemic.

23 September 2020
Junior counsel virtual networking lunch in collaboration with F-Lex and Crafty CounselRegister now to attend

Junior in-house lawyer or just starting out in your career in-house? Meet with and build your network of like-minded peers in our monthly virtual networking sessions. Hear from guest speakers, join breakout sessions to debate and share experiences on topical subjects and see if you can win the coveted monthly quiz champion title.

29 September 2020
LexisNexis i-LIKE forum: Scenario Planning for Legal Teams 
Register now to attend

The LexisNexis i-LIKE forum brings together senior counsel, knowledge managers and legal operations directors working in-house to drive meaningful engagement, collaboration and innovation in driving peak in-house legal department performance through sharing best practice.
With COVID-19 bringing unprecedented pressure to bear on the in-house legal function it can be hard for you to raise your head and look to the future. So how do you escape the reactivity trap and get the legal function ahead of the curve?

14 October 2020
Commercial and employment law updates
Register now to attend

In this bitesize session, we will discuss the latest government guidance, as well as regulatory news and legal updates.

11 November 2020
Modern slavery
Register now to attend

Modern slavery is a topic of vital global importance. A panel discussion on this topic will be followed by an interactive Q&A session. As this is Armistice Day, we will end the session with a minute’s silence.

8 December 2020
Gift to you
Register now to attend

This session will focus on your personal and career development. There will be an executive coach guest speaker who will address virtual networking and leadership. The session will also include both a commercial and COVID-19 update.

Various dates from September to December 2020
LexisNexis Aspire Forum for Junior In-house Lawyers
To register your interest in joining the events, sign up as an Aspire member today

Aspire is a professional development and networking forum for junior in-house counsel. Following the success of the summer event series, we have several events planned for the remainder of the year to continue supporting you through these uncertain times and provide a platform for you to connect with your peers. Events take place at the same time each month, from 5pm to 6:30pm.
Upcoming subjects include mental health and junior in-house counsel, legal operations, career development and mentoring for junior in-house counsel and, of course, a Christmas quiz and networking social.

 


 

Risk & Compliance

Data protection

MLex: EU businesses relying on standard contractual clauses (SCCs) to transfer personal data to countries outside the European Economic Area will see those clauses overhauled by the end of this year, EU Justice Commissioner Didier Reynders has said. The European Commission aims to finalise the update soon to give companies legal certainty. See News Analysis: EU companies to see revamped SCCs for international data transfers by end-2020, Justice Commissioner says.

The Swiss Federal Data Protection and Transparency Officer (PFPDT) has reassessed the Swiss-US Privacy Shield and concluded that it does not offer an adequate level of protection for the communication of personal data from Switzerland to the United States. See: LNB News 08/09/2020 60.

MLex: The Information Commissioner’s Office (ICO) faces a tricky balancing act this autumn, with businesses unfurling and powering up again after coronavirus (COVID-19) lockdown while the government tries to stem a second wave of infections. See News Analysis: Comment—UK data watchdog faces tricky balancing act as coronavirus (COVID-19) pressures build.

The European Data Protection Board (EDPB) has adopted guidelines on the concepts of controller and processor within the GDPR, guidelines on targeting social media users, and created two taskforces in light of the decision in Schrems II—a taskforce on complaints and a taskforce dealing with supplementary measures when transferring data. See: LNB News 04/09/2020 86.

Sanctions & export controls

HM Treasury (HMT) and the Office of Financial Sanctions Implementation (OFSI) have published the 2020 frozen assets reporting notice and template. The notice provides an overview and guidance for the 2020 frozen asset reporting exercise, which is carried out by HMT on a yearly basis to update its records. It is a requirement for all persons that ‘hold or control funds or economic resources belonging to a designated person’ to complete the reporting form. The completed form must be sent to the OFSI by 16 October 2020. See: LNB News 03/09/2020 76.

The Afghanistan (Sanctions) (EU Exit) Regulations 2020 SI 2020/948 give effect to the UK’s international obligations resulting from various United Nations Security Council Resolutions imposing a sanctions regime in view of the situation in Afghanistan. It comes into force in accordance with regulations made by the Secretary of State under section 56 of the Sanctions and Anti-Money Laundering Act 2018. See: LNB News 09/09/2020 47.

Fraud

The Serious Fraud Office has announced it has charged three former executives of G4S Care and Justice Services (UK) Ltd with seven offences each of fraud in connection to false representations made to the Ministry of Justice between 2009 and 2012. See: LNB News 08/09/2020 44.

 


 

Commercial

Brexit and beyond

The Department for International Trade (DIT) has announced its new advisers to the Board of Trade as the government works to establish independent trading relationships to take effect after the end of the Brexit transition period. The extensive engagement with businesses, communities, farmers and consumer groups throughout the UK is additionally seen as a step towards encouraging ‘more businesses across the UK regions and nations to boost their international trade’. See: LNB News 07/09/2020 53.

The DIT has also announced that the UK has taken ‘a major step’ in the process of joining the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The DIT hopes CPTPP membership will provide ‘an opportunity to expand trade links with key partners in the Americas’. The partnership covers digital trade, data, financial, professional, and business services. See: LNB News 09/09/2020 65.

With the UK and EU reporting continued deadlock on core issues ahead of the eighth round of negotiations on the future UK-EU relationship, the government has launched a fresh information campaign aiming to prepare EU-based businesses for the end of the Brexit transition period on 31 December 2020. The information—available in Spanish, German, Polish, Italian and French—will be complemented by government-run webinars. See: LNB News 07/09/2020 34.

On 9 September 2020, the government introduced the United Kingdom Internal Market Bill 2019-21 for its First Reading in Parliament. Adam Cygan, professor at the University of Leicester, provides commentary on the Bill. See: LNB News 09/09/2020 88.

TheCityUK and EY have published a new report which sets out proposals for how the UK can evolve trade and migration policy to benefit the economy. The report highlights how vital this is for financial services, the UK’s largest net exporting sector. See: LNB News 09/09/2020 74.

Coronavirus

The Minister for Exports, Graham Stuart, has announced new measures to support businesses in the consumer and retail industry ‘bounce-back’ from the effects of the coronavirus pandemic, particularly by urging them to export overseas. The measures include the launch of a Consumer and Retail Export Academy, which will help businesses obtain the knowledge, skills and networks needed to increase exports. See: LNB News 09/09/2020 13.

HM Treasury has announced new grants for businesses affected by local lockdowns in England. Any businesses that are required to shut amid the coronavirus pandemic due to local interventions will be able to claim up to £1,500 per property in grants every three weeks of lockdown. See: LNB News 09/09/2020 75.

Public procurement

The Cabinet Office has issued guidance on how to bid for government contracts either as a consortium or small and medium-sized enterprise (SME). The guidance for consortia details the relevant requirements set out in the invitation to tender, while the advice for SMEs details the steps SMEs can take when bidding for government contracts 'so they can compete with larger companies'. See: LNB News 08/09/2020 29.

 


 

Corporate

Equity capital markets

Corporate analysis: This analysis examines the Q3 2020 reshuffle of the Financial Times Stock Exchange (FTSE) 350 companies, as published by the global index provider, FTSE Russell, in its latest quarterly review. See News Analysis: FTSE 350—Q3 2020 reshuffle.

The Financial Conduct Authority (FCA) has published Quarterly Consultation Paper No. 29 (CP20/18), in which it consults on proposed miscellaneous amendments to the FCA Handbook, including changes to the Listing Rules (Chapter 8) to align references within Chapter 8 with changes previously made to other FCA sourcebooks due to the implementation of the Prospectus Regulation (EU) 2017/1129. See: LNB News 04/09/2020 74.

Coronavirus and equity placings

The Pre-Emption Group (PEG) has extended its recommendation to investors to consider supporting issuances by companies, on a case-by-case basis, of up to 20% of their issued share capital over a 12-month period for a further two months, ie to 30th November 2020. This extension has been made due to the continued economic uncertainties caused by the coronavirus (COVID-19) pandemic and the developing pipeline of equity offerings over the 3rd Quarter. It stresses that these are temporary measures and that following 30 November 2020, it expects companies to revert to seeking approvals for non-pre-emptive share issuances of up to a maximum of 10% of their issued share capital as set out in the Statement of Principles (5% for general corporate purposes with an additional 5% for specified acquisitions or investments). See: LNB News 04/09/2020 67.

Restructuring plan

Restructuring & Insolvency analysis: This case analysis looks at the first ever court sanction of a new Part 26A restructuring plan (or Part 26A plan or Part 26A scheme) created by the Corporate Insolvency and Governance Act 2020 (CIGA 2020). Kate Stephenson of Kirkland & Ellis LLP looks in detail at the learning points from both the convening hearing before Mr Justice Trower (Re Virgin Atlantic Airways Ltd [2020] EWHC 2191 (Ch)) and the sanction hearing before Mr Justice Snowden (Re Virgin Atlantic Airways Ltd [2020] EWHC 2376 (Ch)[2020] All ER (D) 08 (Sep)). See News Analysis: The first UK restructuring plan sanctioned—learning points from Virgin Atlantic’s plan process

Negligent audit

The Court of Appeal has clarified the principles of SAAMCO and the approach to loss of a chance in an auditor’s negligence case. The court explained that SAAMCO was not a rigid rule of law, but a tool for determining which losses fell within the scope of duty. It was held that the losses suffered by the company following an audit that negligently failed to detect false accounting was within the scope of the auditor’s duty. The Court of Appeal also considered the extent to which benefits said to have been received as a result of the negligence could be deducted from the damages awarded. Written by David Juckes, barrister, at Hailsham Chambers. See News Analysis: Scope of an auditor’s duty, recoverable loss under SAAMCO, and application of loss of chance (Assetco plc v Grant Thornton UK LLP).

 


 

Information law and TMT

Digital ID scheme

Insurance Europe (IE) has responded to the European Commission roadmap consultation on an EU digital ID scheme, saying digital identities and the associated processes of authentication and authorisation are an essential component of the digital single market. However, IE calls on the Commission to ensure that any new system does not create an additional regulatory burden. See: LNB News 09/09/2020 46.

E-commerce

The Law Society and Tech London Advocates (TLA) have published a report setting out legal and regulatory guidance on blockchain, against the background of the huge rise in the use of technology due to the coronavirus (COVID-19) pandemic. It discusses the key issues for legal practitioners to be aware of when advising on distributed ledger technologies (DLT), arguing that lawyers will need to become conceptually and functionally familiar with DLT, smart legal contracts and cryptoassets. See: LNB News 08/09/2020 57.

The UK government has made clear that at the end of the Brexit transition period, the E-Commerce Directive will no longer apply to the UK. Roger Bickerstaff, partner at Bird & Bird, considers the aspects of the impact on cloud service providers.. See News Analysis: The end of the EU E-Commerce Directive in the UK—impact on cloud service providers.


Employment

Flexible working post lockdown

A great deal has been written about the impact that lockdown has had on women, particularly working mothers, and the longer-term impact it is likely to have on gender equality. But how has lockdown affected men and working fathers? In this Law-Now article, Gary Henderson, partner, and Val Dougan, professional support lawyer, at CMS consider why the last five months of enforced homeworking for many fathers may prompt longer term change. For further information, see News Analysis: Fathers and flexible working post lockdown.

Unfair dismissal

In Aramark UK v Fernandes (UKEATS/0028/19/SS) the Scottish EAT held that where an employee is selected for redundancy, and the employer maintains a list of people to whom they can offer employment when they have a labour shortage, a failure to place the employee on that list before dismissal will not render the dismissal unfair. See News Analysis: No duty to place employee at risk of redundancy on ‘bank list’ of potential recruits (Aramark UK v Fernandes).

In K v L (UKEATS/0014/18/JW) the EAT held that the fact that there is a risk that an employee has committed a relevant serious criminal offence is insufficient in itself to make it reasonable to dismiss for that reason, even if the employee is a teacher and the offence is possession of indecent images of children. The employer must reach a decision on the facts, applying the balance of probabilities, as to whether the misconduct occurred. In addition, if an employer is going to rely on reputational risk as a reason for dismissal, then it needs properly to notify the employee that this is a reason, to allow a chance to respond to it. See News Analysis: Risk that employee has committed relevant criminal offence does not make dismissal reasonable (K v L).


 

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About the author:

Louisa leads marketing for the in-house legal community at LexisNexis. She joined the dedicated in-house team at LexisNexis four years ago and has a passion for driving and facilitating initiatives which are customer-focused at their heart. Her vision is to support in-house counsel succeed in their fast-evolving role based on deep insight, data analysis and best practice gathered across the in-house community.

Prior to her in-house focused role, Louisa led the marketing for the bar and mid-market private practice sectors as well as product marketing lead for LexisPSL - LexisNexis' cloud based, practical guidance and legal research software solution.

She brings 20 years' marketing experience both client and agency side, specialising in B2B marketing in the Legal, TMT (Telco, Media and Technology) and Financial Services industries. In both South Africa, Europe and the UK.

Louisa is also an active member on the LexisNexis Gender Equality Matters (GEM) steering committee and is involved with the Families at LexisNexis Group which brings together, supports and lobbies for change those with an interest in balancing the challenges of work and family.