Latest legal and regulatory news update - 11 October 2019

Latest legal and regulatory news update - 11 October 2019

Welcome to this week’s edition of the In-house highlights, a curated summary of news analysis and new content from across the legal landscape.

In this issue:

Brexit

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

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New and updated content

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Brexit
No-deal Brexit preparation

The Cabinet Office and Department for Exiting the European Union have published a ‘No-deal readiness report’, summarising UK preparations for exiting the EU on 31 October 2019. See: LNB News 08/10/2019 72.

HMRC has published updated guidance on moving goods between Ireland and Northern Ireland to help stakeholders prepare for the UK leaving the EU without a deal in place. See: LNB News 08/10/2019 50.

The government has published further guidance pages for UK businesses collating existing stakeholder and sectoral guidance on Brexit, focusing on preparing for the no-deal scenario in certain sectors including telecoms, media and broadcasting, digital, technology, arts, creative industries, sports and recreation, gambling and tourism. See: LNB News 03/10/2019 47.

Whistleblowing post-Brexit

The EU has formally adopted new rules strengthening protection for whistle-blowers across sectors including public procurement, financial services, public health, and data protection. Under the directive, both private and public organisations must provide safe channels for whistle-blowers to report, where they will be protected against retaliation. Another change will be the obligation for national authorities to adequately inform citizens and train public officials on how to deal with whistle-blowing. The Department for Business, Energy & Industrial Strategy has confirmed that, as a result of Brexit, the UK will not be transposing the directive into UK law. See: LNB News 07/10/2019 41.

 

UK supply chain

The Department for International Trade has published details of an update to the UK temporary tariff regime it plans to apply in a no-deal Brexit scenario. Following discussion with industry and consumer groups, the government has amended the temporary tariff rates published in March 2019, to incorporate three amendments concerning heavy goods vehicles, bioethanol and clothing. Richard Eccles, partner at Bird & Bird says the tariff regime will be ‘beneficial for industries’. See: LNB News 08/10/2019 54.


Risk & Compliance
Economic crime

Fraud and money laundering are reaching epidemic levels in the UK, requiring better co-ordination among law enforcers and more funding from government to combat the threat, according to the head of the country’s new command centre for fighting economic crime, the National Economic Crime Centre. See News Analysis: Fraud chief pushes co-ordination to tackle spiralling crime.


Legal professional privilege

Documents held in client files of a dissolved foreign company were protected by legal professional privilege. The Court of Appeal, Civil Division, so held, in dismissing the claimant former investors claim for a declaration. Legal advice privilege, once established, remained in existence unless and until it was waived. It was established as a result of the purpose for which, and the circumstances in which, the communication was made. See News Analysis: Legal privilege—once established, it will remain in existence unless and until it is waived (Addlesee v Dentons) and Case Digest: [2019] All ER (D) 12 (Oct).


ePrivacy Regulation

Representatives of the digital technology industry have asked the European Commission to overhaul its proposed ePrivacy Regulation, because ‘Europe’s digital transformation will be severely hampered as a result of the legal uncertainty and rigidity brought about’ by the proposed draft. DigitalEurope, a coalition of policy communicators and industry representatives, says there remain unanswered questions about the essential aspects of the proposal, including its scope of application, definitions, inflexible legal bases and its relationship with the General Data Protection Regulation (EU) 2016/679. See: LNB News 08/10/2019 75.


Commercial
Sale & supply of goods and services

Geoff Wynne, partner at Sullivan & Worcester, explains the changes and how Incoterms 2020 will clarify the responsibilities and better allocate the risk between commercial parties. See News Analysis: Incoterms 2020—major overhaul or slight adjustment?

 Contracts

In Lamesa Investments Ltd v Cynergy Bank Ltd [2019] EWHC 1877 (Comm), [2019] All ER (D) 77 (Sep), the court was called on to interpret a clause in a facility agreement which provided that the borrower would not be in default if it failed to make repayments ‘in order to comply with any mandatory provisions of law’. The finding that the clause could apply in the case of the possible imposition of US secondary sanctions may lead to some uncertainty as to the circumstances in which foreign provisions of law are viewed as binding in English law contracts, according to Maya Lester QC, barrister at Brick Court Chambers, who assesses the implications of the case. See News Analysis: Foreign provisions of law in English law contracts (Lamesa Investments Ltd v Cynergy Bank Ltd).

Corporate
Corporate governance

Institutional Shareholder Services Inc has invited comments on proposed changes to its benchmark voting policies, which will apply to meetings on or after 1 February 2020. The open comment period, which will solicit views from governance stakeholders globally on a number of proposed voting policy changes for 2020, will run until 18 October 2019. See: LNB News 08/10/2019 58.

The NEX Exchange has published a market notice that confirms amendments to the NEX exchange trading rules. The amendments are in preparation for the entry into force of the settlement discipline measures that are outlined in Article 7 of Regulation (EU) 909/2014 and Commission Delegated Regulation (EU) 2018/1229. From a UK and Ireland corporate governance perspective, the key changes are in the areas of gender diversity and the use of discretion in remuneration outcomes. See: LNB News 03/10/2019 58.

 Equity capital markets

Corporate analysis: This analysis looks at the key changes to the prospectus contents requirements under the Prospectus Regulation and the equity prospectuses published since the new regime came into force. See News Analysis: Content changes to prospectuses under the Prospectus Regulation.

Information Law & TMT
Data protection

Can you bring a representative action against Google for placing ‘cookies’ on your computer without your consent, and in breach of the Data Protection Act, even if you cannot name most of the class and cannot prove direct financial loss? If so, might other similar claims be brought against other major internet companies? Could also variant claims be brought when electronic information is lost or stolen? In Lloyd v Google [2019] EWCA Civ 1599, the Court of Appeal said yes to the first question. The second and third interesting questions are still being explored. See: Data Protection Act claims—CPR 19.6 and damages (Lloyd v Google).

 Cybersecurity

EU Member States, supported by the European Commission and the European Agency for Cybersecurity, have published a report on the EU co-ordinated risk assessment of the cybersecurity of 5G networks, highlighting critical security challenges in order to ensure the robust security and resilience of 5G networks in the EU. See: LNB News 09/10/2019 69.

 Reputation management

Giles Parsons, partner at Browne Jacobson LLP, and Serene Allen, senior associate at Browne Jacobson LLP consider the reference for a preliminary ruling to the Court of Justice concerning the compatibility of injunctions against host providers to remove content with the exemptions from liability under Directive 2000/31/EC (E-Commerce Directive). The Court of Justice has held that the E-Commerce Directive does not prevent a court from ordering a host provider to identify, remove and block access to all content that is identical to content that has been found to be unlawful and certain equivalent content. The Court of Justice also found that a court could order a host provider to remove or block access to information worldwide so long as doing so was within the framework of the relevant international law. See News Analysis: Host providers can be ordered to remove identical and certain ‘equivalent’ content to that found to be unlawful (Glawischnig-Piesczek v Facebook).

 State security & intelligence

The UK and US governments have signed the first US-UK Bilateral Data Access Agreement, which enables US and UK law enforcement agencies, given the necessary authorisation, to directly request electronic data from tech companies based in the other country for serious cross-border criminal investigations. See: LNB News 04/10/2019 71.

 New technologies

The International Regulatory Strategy Group has published a report on AI-powered finance in the UK’s financial and related professional services. Published in association with Accenture, the report explores the opportunity afforded by AI for the industry, and discusses how the UK government and regulatory bodies can encourage AI-powered innovation while mitigating any potential risks arising from industry-wide adoption. See: LNB News 08/10/2019 45.

Employment
Unfair dismissal

The circumstances in which an employment tribunal should determine whether exceptions apply to the inadmissibility of protected pre-termination negotiations under section 111A of the Employment Rights Act 1996 was considered by the EAT in Harrison v Aryma Ltd (UKEAT/0085/19/JOJ). This judgment confirms that parties should be live to the circumstances in which the protected conversation exceptions will apply as it may be an error not to apply them, even if they are not expressly pleaded. See News Analysis: Protected conversation exceptions must be considered if factual basis exists (Harrison v Aryma Ltd)

 

 

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.