Latest legal and Regulatory News update - 2nd October

Latest legal and Regulatory News update - 2nd October

In this issue:

In-house

Risk & Compliance

Commercial

Corporate

Information law and TMT

Employment

New and updated content

Dates for your diary

Useful information


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.

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

Coronavirus

This report analyses the legal obligations in relation to self-isolation, applying to employers, workers, agency workers, agents and principals, contraventions of which carry criminal sanction, which were brought into force on 28 September 2020 by the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020. See News Analysis: New self-isolation obligations on employers and workers that carry criminal sanctions.


Data protection

The ICO has updated its regulatory approach document, published in response to the coronavirus (COVID-19) pandemic. The update is informed by what organisations have told the ICO about their capacity and takes account of increasing operational resilience as organisations start to recover. It is another step towards returning to the ICO’s approach before coronavirus, but with the caveats and exceptions intended to reflect the current situation. See: LNB News 24/09/2020 70.


Financial crime and sanctions

The Financial Action Task Force (FATF) has released a statement on the publication of reports by media outlets about the disclosure of suspicious activity reports (SARs) documents filed by financial institutions with the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). FATF has refused to comment on information from SARs or suspicious transaction reports, as this is confidential information under the FATF standards. FATF nonetheless emphasises the importance for all countries and private entities to implement its standards to help prevent money laundering and terrorist financing, including filing suspicious transaction reports with competent authorities. See: LNB News 24/09/2020 32.

The ‘FinCen Papers’ look set to become the next Panama Papers, where confidential information has been leaked, lifting the lid on the sheer scale of financial crime and money laundering. Gary Pons, barrister at 5SAH Chambers specialising in complex financial cases and recovery of the proceeds of crime, considers the publication of the FinCen Papers, containing over 2100 SARs from FinCen, the problems with the SARs regime it reveals and suggests that it might be an opportunity to improve the SARS regime. See News Analysis: How the FinCen Papers provide an opportunity to improve the Suspicious Activity Report (SARs) regime.

The Office of Financial Sanctions Implementation has published a new Global Human Rights Financial Sanctions Notice. The Notice confirms that eight entries have been listed in the annex to the Notice, added to the Consolidated List and therefore subject to asset freezes under the Global Human Rights Sanctions Regulations 2020, SI 2020/680. See: LNB News 30/09/2020 82.


Brexit

The Ministry of Justice has published new guidance pages for lawyers and legal services providers practising in the UK, EU, Iceland, Liechtenstein, Norway or Switzerland from 1 January 2021 to help legal professionals prepare for the end of the transition period. With legislation and new systems for recognition of professional qualifications pending, further guidance will be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates. See: LNB News 30/09/2020 78.


Commercial

Contracts

Commercial analysis: The court considered the definition of ‘goodwill’ in commercial agreements in Primus International Holding Co and other companies v Triumph Controls - UK Ltd and another company [2020] EWCA Civ 1228. See: Contract—interpretation—meaning of ‘goodwill’—exclusion clauses—warranties (Primus International Holding Co v Triumph Controls UK Ltd).

Article 24 of the Regulation (EU) 1215/2012, Brussels I (recast) has potentially draconian effects, as it may override an exclusive jurisdiction clause, and operates even where a defendant has ‘entered an appearance’, including by submitting a defence. The High Court rejected an application by the first and third defendants challenging the jurisdiction of the English court. For proceedings which are issued in England before the end of the transition period (31 December 2020), this case will be relevant to claims relating to the ownership of shares, and the impact of that on the validity of decisions made by a company’s board or the validity of entries in its share registers. Written by Sarah Ellington, legal director at DLP Piper UK LLP. See News Analysis: High Court considers applicability of Article 24 of Brussels I (recast) regulation (Marriott v Fresson).


Brexit

We have published an update to our Brexit Bulletin—key updates, research tips and resources. The latest edition includes commentary and updates on key transition priorities including negotiations on the future UK-EU relationship, implementation of the Withdrawal Agreement, domestic preparation and contingency planning, plus updates on the Brexit legislation pipeline including the UK Internal Market Bill. See: LNB News 30/09/2020 80.

The Ministry of Justice has published new guidance on cross-border civil and commercial legal cases to help stakeholders prepare for the end of the transition period and beyond. The guidance highlights key legislation and rules on jurisdiction, recognition and enforcement of judgments in cross-border disputes before and after the end of the transition period, as well as the specific rules on treatment of ‘transitional cases’ under the Withdrawal Agreement. Separate guidance available from the EU is also cited. Further new and updated guidance may be issued as the transition period progresses, and further legislative amendments are introduced, so stakeholders are advised to monitor these pages for updates. See: LNB News 30/09/2020 51


Coronavirus

The British Institute of International and Comparative Law (BIICL) has published a third concept note (Concept Note 3) on the effects of the coronavirus pandemic on commercial contracts, which details the steps that may be taken to avoid a surge in disputes and to increase the prospect of constructive outcomes. Concept Note 3 proposes a set of guidelines ‘which might be adopted to encourage a more conciliatory approach to contractual disputes that may arise, and which seek to avoid and/or minimise protracted legal disputes, without prejudicing or altering parties’ legal rights’. BIICL explained that the guidelines are not proposed to replace internal processes, rather, they should be ‘complementary’ to them. See: LNB News 29/09/2020 64.

The government has announced that the measures put in place to protect businesses from insolvency will be extended to continue giving businesses ‘the much-needed breathing space during the coronavirus pandemic’. A number of changes to protect businesses from insolvency were ‘introduced in the Corporate Insolvency and Governance Act and were due to expire on 30 September 2020’. See: LNB News 24/09/2020 82.

On 15 September 2020 the High Court handed down its judgment in the FCA’s business interruption (BI) insurance test case for losses arising out of coronavirus. Pamela Freeland and Sarah Irwin of Weightmans LLP, together with the Lexis®PSL Insurance and Reinsurance team, consider the judgment and its implications. See News Analysis: Coronavirus (COVID-19) business interruption test case (post-judgment analysis) construction, composite perils and causation. The Financial Conduct Authority (FCA) has subsequently confirmed, in a press release dated 29 September 2020, that it has made a ‘precautionary’ leapfrog application to appeal to the Supreme Court parts of the decision of the BI test case. See: LNB News 29/09/2020 1.


Corporate

Shareholder activism

Corporate analysis: This Market Tracker trend report, produced in association with White & Case and Activist Insight, with contributions from UBS Investment Bank, Georgeson and Greenbrook, looks at recent trends in shareholder activism in the UK, including a review of what happened in H1 2020. It also looks at how companies can prepare for an activist approach and provides tips on how activists can run a successful campaign in the UK. See News Analysis: Market Tracker trend report—recent trends in UK shareholder activism (September 2020).


Coronavirus

Restructuring & Insolvency analysis: This News Analysis summarises the changes made to certain temporary provisions introduced by the Corporate Insolvency and Governance Act 2020 (CIGA 2020). The changes include the extension to 30 December 2020 of a temporary modification concerning meetings of companies and other bodies, allowing companies and other qualifying bodies with obligations to hold annual general meetings to continue to have the flexibility to hold these meetings virtually. See News Analysis: Corporate Insolvency and Governance Act 2020—extension of temporary measures.

Companies House has updated two confirmation statement forms relating to Scottish partnerships. Forms SQP CS01 and SLP CS01. The online service webpage states that it is an ‘interim service’ that was created in response to the coronavirus pandemic. See: LNB News 24/09/2020 66.


Equity capital markets

The European Securities and Markets Authority (ESMA) has published its annual report on EEA prospectus activity. The report found that in 2019 the number of prospectus approvals across the EEA decreased from 3,390 to 3,113, continuing the downward trend from the 2008 financial crisis. ESMA makes prospectus data available to ‘provide information about trends in general prospectus approval statistics and passporting activity, as well as trends concerning the structure of approved prospectuses and the types of securities they cover.’ See: LNB News 25/09/2020 49.

The Law Society and City of London Law Society (CLLS) have published a joint response to the Financial Conduct Authority’s (FCA) Primary Markets Bulletin 30 and proposed new technical note 606.1: ‘When a prospectus is required where securities are issued pursuant to Schemes of Arrangement’ (Draft TN). See: LNB News 30/09/2020 104.

ESMA has issued a public statement concerning the applicability of Level 3 guidance published under the Prospectus Directive 2003/71/EC. It contains an update on the status of Q&As published under the Prospectus Directive and notes the recommendations relating to specialist issuers made by the Committee of European Securities Regulators (CESR). See: LNB News 30/09/2020 102.


Public company takeovers

The Takeover Panel (Panel) has published its annual report​for the year ended 31 March 2020. The report includes a summary of the Panel’s work in the last financial year and an overview of public M&A activity during the period. The report also states that the Code Committee will be publishing shortly a Public Consultation Paper proposing various amendments to the Takeover Code in relation to conditions to an offer and the offer timetable. See: LNB News 25/09/2020 60.


Information law and TMT

Unsolicited marketing breach

The ICO has fined Digital Growth Experts Limited for contravening the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426, regs 22 and 23 after the company sent 17,241 unsolicited marketing text messages about hand sanitising products which the company claimed were ‘effective against coronavirus’ between 29 February 2020 and 30 April 2020. The fine amounts to £60,000. See: LNB News 24/09/2020 40.


Coronavirus

The Department of Health and Social Care has announced that the NHS COVID-19 app has been launched throughout England and Wales amid the coronavirus pandemic. The law now requires certain businesses to display the official NHS QR code posters to allow people to check in using the app. See: LNB News 24/09/2020 15.

EURid has published an update on the subject of the .eu domain name check measures that were put in place in early April 2020 as a result of the coronavirus pandemic. According to EURid, the European Commission has asked it to prolong its checks on coronavirus-related newly registered domain names until mid-October 2020. Since April 2020, EURid has carried out additional checks on both existing registrations and newly-registered domain names that contain keywords related to the ongoing coronavirus pandemic. EURid has asked that their registrants validate their data and provide it with a statement of good faith. See: LNB News 29/09/2020 2.


Fintech

The European Commission has adopted a digital finance package, including digital finance and retail payments strategies along with legislative proposals on crypto-assets, digital operational resilience and a regulatory ‘sandbox’ for market infrastructures based on distributed ledger technology. The proposals are intended to boost Europe’s competitiveness and innovation in the financial sector. It aims to give consumers more choice and opportunities in financial services and modern payments, while ensuring consumer protection and financial stability. See: LNB News 24/09/2020 91.


Employment

Coronavirus

The Department of Health and Social Care (DHSC) has provided further details on the new £500 Test and Trace Support Payment for lower income employees who are required to self-isolate. The Test and Trace Support Payment will ensure that those on low incomes can self-isolate without worrying about their finances. Employers who force or allow staff to come to work when they should be self-isolating will also be liable for fines of up to £10,000. See: LNB News 28/09/2020 37.

A new ‘Job Support Scheme’ and an extension to the Self-Employment Income Support Scheme (SEISS) have been announced by the Chancellor of the Exchequer, Rishi Sunak, with information on both published in a Treasury policy paper of 24 September 2020 entitled ‘Winter Economy Plan’ and in two related factsheets. See News Analysis: New post-CJRS ‘Job Support Scheme’ and extended self-employed scheme (SEISS).


Pay

In Commissioners for HMRC v Ant Marketing (UKEAT/0051/19/OO) the EAT held that, for the purposes of calculating whether the national minimum wage has been paid, deductions for the cost of training may be treated as reductions (reducing the total pay used to calculate the hourly rate paid) because it is expenditure ‘in connection with employment’. In President Choudhury’s decision in this case he also commented on the question of whether an employer could be said to be a provider of accommodation for the purposes of regulation 14 of the National Minimum Wage Regulations 2015, even though it is not the owner or landlord in such accommodation. See News Analysis: Training costs are reductions for national minimum wage purposes (Commissioners for HMRC v Ant Marketing).


Immigration

The Home Office has launched a new campaign to ensure businesses are ready for the introduction of the UK’s post-Brexit immigration system as free movement ends on 31 December 2020. The key message for businesses is that the way they hire from the EU is changing, and to recruit from outside the UK, they will need to be a licensed sponsor. See: LNB News 30/09/2020 62.

The Home Office published a new guidance webpage ‘Recruiting people from outside the UK from 1 January 2021’ on 24 September 2020. It is aimed at employers and contains an overview of the key routes of entry to the UK for sponsored workers under the post-Brexit immigration system. These include Skilled Workers (due to replace Tier 2 (General)), Intra-Company transfer and ‘Other routes’ (eg Youth Mobility). The guidance webpage also briefly covers sponsor licence applications for both existing and prospective sponsors. See: LNB News 24/09/2020 63.

The Migration Advisory Committee (MAC) has published its 2020 review on the Shortage Occupation Lists (SOL) for the UK and Scotland, further to a commission from the Home Secretary. The review will be particularly relevant for the new Skilled Worker route, which is replacing Tier 2 (General) in the post-Brexit immigration system. See: LNB News 29/09/2020 54.


Practice, procedure and settlement

New versions of the ET1 claim form used for submitting claims to the employment tribunal, and the ET3 response form used for responding to such claims, which add a question asking whether the party would be able to take part in a hearing by video, were published on 18 September 2020. See News Analysis: Employment tribunals: small changes to ET1 claim form and ET3 response form.


Protected rights in employment

The second reading of the Public Interest Disclosure (Protection) Bill took place on 25 September 2020. The purpose of this Private Members’ Bill is to provide protections for whistleblowers; to create offences relating to the treatment of whistleblowers and the handling of whistleblowing cases; to establish an independent body to protect whistleblowers and whistleblowing, in accordance with the public interest; to make provision for that body to set, monitor and enforce standards for the management of whistleblowing cases, to provide disclosure and advice services, to direct whistleblowing investigations and to order redress of detriment suffered by whistleblowers; and to repeal the Public Interest Disclosure Act 1998. See: LNB News 06/02/2020 13.

The second reading of the Unpaid Work Experience (Prohibition) (No 2) Bill took place on 25 September 2020. The purpose of this Private Members’ Bill is to prohibit unpaid work experience exceeding four weeks. See: LNB News 06/02/2020 16.


New and updated content

Risk & Compliance

Updated Practice Note: Coronavirus (COVID-19)—safe working in an office environment.

Updated Precedents:

● AML and counter-terrorist financing policy

● Coronavirus (COVID-19) workplace risk assessment and plan—offices

Updated Checklist: Coronavirus (COVID-19)—safe working in an office environment—checklist

New Q&A: What money laundering and terrorist financing red flags do I need to look out for in a transaction or matter involving virtual assets?

Practice Note: What’s new and what’s changed in 2020—Risk & Compliance contains a summary of substantive changes to Risk & Compliance content


Commercial

Updated Practice Notes

● Exclusivity in contract negotiations

● Third party rights—the Contracts (Rights of Third Parties) Act 1999

● Brexit legislation tracker


Corporate

New Q&A: What does Companies House do with the records of dissolved companies?

To view analysis of the latest deals in the market and the underlying transaction documents, use our Market Tracker deal analysis tool.


Information law and TMT

Updated Practice Notes

● Supply chains under data protection law—arrangements between controllers and processors

● Personal data sharing between controllers

● ISP and intermediary liability

● Settling disputes—how to document a settlement


Employment

New Practice Notes:

● Job Support Scheme

● Kickstart Scheme

● Kickstart Scheme—guidance tracker

● Coronavirus Job Retention Bonus Scheme

New Q&A: A claimant issued a claim for detriment as a result of making protected disclosures. Claimant then proposed financial settlement of their claims and agreed termination of employment, and a settlement agreement was entered into, with an effective date of termination of November 2019. The claimant subsequently applied for three permanent posts in February and March 2020 within their former team and was not shortlisted. They have now submitted claims for constructive unfair dismissal, and detriment (not being shortlisted). Can the employer bring a contract counterclaim for the claimant’s breach of the settlement agreement, or should the employer argue that the claimant has waived their unfair dismissal claim and therefore only respond to the alleged detriment re shortlisting?


Dates for your diary

 

Time

Event

Subjects Covered

19 October 2020

Webinar—Commercial Law

E-commerce in 2020

2 November 2020

Webinar—In-house Counsel

Employment law issues for in-house lawyers (2020)

18 November 2020

Webinar—TMT

Autonomous vehicles (2020)

30 November 2020

Webinar—Commercial Law

Commercial law—end of year round-up (2020)

8 December 2020

Webinar—In-house Counsel

Succession planning (2020)

14 December 2020

Webinar—TMT

The European Electronic Communication Code (2020)

31 December 2020

Webinar—In-house Counsel

Dealing with conflicts of interest within your organisation

31 December 2020

Webinar—Commercial Law

Recent developments in commercial contracts (2020)

On demand

Webinar—TMT

Cloud computing (2020)

On demand

Webinar—TMT

Drones law (2020)

On demand

Webinar—TMT

Influencers and intellectual property (2020)

On demand

Webinar—TMT

(Brief) The Copyright Directive (2020)


Useful information

Contact us

Please follow us on Twitter at @inhouse_leaders. You can also keep updated by reading our blog, including our monthly video news. If you need an overview of the materials in the in-house module, see: In-house—introduction to our materials.

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