Latest Legal and Regulatory news update - 7th May

Latest Legal and Regulatory news update - 7th May

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Brexit

Coronavirus (COVID-19) toolkit

LexTalk®In-house: a Lexis®PSL community


Risk & Compliance

Coronavirus (COVID-19)

The Financial Action Task Force (FATF) has published a paper identifying the challenges, good practices and policy responses towards new money laundering and terrorist financing threats and vulnerabilities arising from the coronavirus crisis. See: LNB News 05/05/2020 70.

The coronavirus pandemic poses an unprecedented challenge for the criminal justice system in England and Wales. In particular, coronavirus is having a noticeable impact on UK enforcement agencies and their ability to progress a number of investigations. Quinton Newcomb, barrister and director, and Farheen Ishtiaq, solicitor, at Fulcrum Chambers, explore the conduct of ongoing criminal investigations during the coronavirus pandemic. See News Analysis: The conduct of ongoing criminal investigations during the coronavirus (COVID-19) pandemic.

The National Crime Agency has released the suspicious activity report (SAR) glossary codes for coronavirus-related crimes during April 2020. The United Kingdom Financial Intelligence Unit (UKFIU) implemented three new SAR glossary codes for reporters as a direct result of the increased threat posed by criminals seeking to exploit the coronavirus outbreak. See: LNB News 04/05/2020 13.

GDPR

The European Data Protection Board (EDPB) has adopted Guidelines 05/2020 on consent under the General Data Protection Regulation (GDPR), Regulation (EU) 2016/679. This replaces the guidelines on consent previously adopted by the Article 29 Working Party (WP259.01), which had been endorsed by the EDPB in 2018. See: LNB News 06/05/2020 40.

 

Commercial

Coronavirus (COVID-19)

The coronavirus pandemic has severely impacted the ability of businesses to deliver goods and services. Tim Waller, partner at TLT LLP, considers the implications of claims by cardholders who are seeking a refund. See News Analysis: Coronavirus (COVID-19)—The impact and implications for chargebacks and section 75 claims.

The Department for International Trade has launched almost 100 expert-led webinars to support SMEs trading overseas during coronavirus. The webinars will be hosted by either an International Trade Adviser or guest speakers from business and industry, covering a range of topics including support for selling online overseas and managing distribution of supply chains and the movement of goods. The webinars will offer practical advice, and question and answer sessions. See: LNB News 05/05/2020 29.

The WTO Secretariat has published a report looking at how the coronavirus pandemic has affected e-commerce and the implications it has for cross-border trade. The report looks at measures introduced by governments to facilitate e-commerce and the challenges facing these initiatives. The report argues that the lessons emerging from the current crisis could incentivise global co-operation in e-commerce, facilitating cross-border trade, narrowing the digital divide and levelling the playing field for small businesses. See: LNB News 05/05/2020 34.

The Financial Conduct Authority (FCA) has announced that it intends to obtain a court declaration to resolve contractual uncertainty in business interruption (BI) insurance cover. The FCA is also consulting on guidance setting out its expectations for insurers and insurance intermediaries to consider the value of their products in light of the exceptional circumstances arising out of the coronavirus pandemic, and guidance setting out the FCA’s expectations for firms when dealing with customers of general insurance and pure protection contracts who may be experiencing temporary financial difficulty as a result of the pandemic. James Denison, partner at Weightmans LLP, has offered his comments on the potential impacts of the judicial clarification on BI insurance. See: LNB News 01/05/2020 35.

Contracts

Sony, as warehouse owner, could not rely on the force majeure clause to exclude its liability to 2 Entertain Video (2EV) for damage to 2EV’s goods caused by a major fire started during the London riots of August 2011. Sony was liable to 2EV for damages for breach of contract, in bailment and for conversion. There had been an earlier settlement of stock claim by Sony’s insurers. The exclusion clause for indirect or consequential loss or damage did not apply to exclude Sony’s liability for the loss of profits and business interruption losses suffered by 2EV over and above the stock losses, up to the level of the contractual cap on damages of £5m. Written by Gavin Hamilton, barrister, at 3PB Barristers. See News Analysis: Force majeure and construction of exclusion for indirect or consequential loss or damage (2 Entertain Video v Sony).

A Technology and Construction Court decision last week has considered a direct attack on the traditionally narrow interpretation given by the English courts to indirect and consequential loss exclusion clauses. Although upholding the traditional interpretation in the circumstances of the case before it, the decision appears to accept the need to give such clauses their natural and ordinary interpretation in the context of the agreement as a whole and any relevant factual matrix. Adrian Bell, Steven Williams, Phillip Ashley and Aidan Steensma of CMS consider the case which follows recent judicial commentary criticising the traditional approach and may suggest a more case-by-case approach to the interpretation of such exclusions (whether or not the same outcome is reached). See News Analysis: Indirect and consequential loss exclusions—English law holds the line for now.

Supply of goods

The International Chamber of Commerce (ICC) has issued guidance and clarifications on various elements of the latest edition of the Incoterms rules, launched on 01 January 2020. The rules contain international terms of trade for the sale of goods and enable trillions of dollars in global trade annually. The latest edition of the Incoterms has been revised since 2010 to keep pace with and reflect the global trading landscape. See: LNB News 30/04/2020 41.

Procurement

David Sears QC at Crown Office Chambers examines the impact of coronavirus on public procurement. The coronavirus outbreak has placed public sector supply chains under acute pressure, leading the government to issue specific procurement policy guidance for contracting authorities. However, while the guidance seeks to assist authorities who may need to procure goods, services and works with extreme urgency, Sears warns that they may in fact face difficulties in taking advantage of the provisions mentioned without risking future legal challenges by suppliers. See News Analysis: Desperate times call for desperate measures—public procurement in times of crisis.

 

Corporate

Coronavirus (COVID-19)

The Quoted Companies Alliance (QCA), an independent membership organisation that champions the interests of small to mid-size quoted companies, has published results of the latest QCA Small & Mid-Cap Sentiment Index which surveyed small and mid-cap UK quoted companies and advisory companies. The survey revealed that optimism about the UK economy is at record lows among quoted companies, partly due to coronavirus, and there has also been a large drop in such companies’ optimism with regard to their own business prospects. The results revealed key findings on quoted companies’ views in relation to matters including: (a) future capital raises, (b) economic outlook, (c) employment, (d) stakeholders, (e) business operation and (f) the UK government’s response. See: LNB News 06/05/2020 27.

Companies House has announced that its emergency filing service now applies to the limited liability partnership (LLP) versions of registrar’s powers forms, in response to the coronavirus pandemic. See: LNB News 06/05/2020 2.

Corporate governance

The European Commissioner for Justice, Didier Reynders, has announced in a webinar that the European Commission will introduce a legislative initiative in 2021 on mandatory due diligence for companies. Members of the European Parliament and other stakeholders welcomed the announcement. The Commission is currently preparing a public consultation on sustainable corporate governance and due diligence to inform the Commission’s legislative proposal. See: LNB News 30/04/2020 94.

Accounts & reports

ESMA has published a no action letter asking national competent authorities not to prioritise supervisory action on environmental, social and governance (ESG) disclosures under the Benchmark Regulation. These requirements were due to apply to benchmarks administrators from 30 April 2020, but related delegated acts have not yet been adopted. Therefore, ESMA has also published an opinion asking the European Commission to adopt these delegated acts promptly. See: LNB News 30/04/2020 9.

 

Information Law & TMT

Coronavirus (COVID-19)

The coronavirus pandemic has led to proposals for contact tracing projects and location tracking, and sparked interesting debates on the balance between public health and civil liberties. But how is the day to day work of data protection practitioners being impacted by the pandemic? In this News Analysis, Hazel Grant, head of the Privacy, Security and Information group at Fieldfisher, Nick Holland, head of Commercial—Thames Valley, at Shoosmiths and Daradjeet Jagpal, director and legal consultant at Information Law Solutions, comment on the impact on data protection lawyers and consider what might happen next. See News Analysis: Coronavirus (COVID-19)—Data protection market insight.

MLex: Google and Apple have released a series of user interfaces and detailed new privacy limits for the operating system changes that will enable public health authorities to build apps that will allow smartphones around the world to sound proximity alerts if users are at risk of a coronavirus infection. See News Analysis: Apple, Google release new privacy principles, appearance of coronavirus (COVID-19) proximity alert apps.

The Information Commissioner, Elizabeth Denham, has announced new priorities for UK data protection during the coronavirus period and beyond. The ICO detailed its regulatory approach for the pandemic period in April 2020. Following close monitoring of current trends and in response to complaints or requests for support, the ICO has ‘looked ahead to assess where and how we should narrow our focus on the areas we can have the greatest impact to protect the public interest and support economic growth and innovation’. See: LNB News 05/05/2020 81.

The ICO has published guidance aimed to support technical design teams during the development of coronavirus tracing apps and associated activities. The guidance, which applies the design and default principles and includes best practice recommendations, will also support risk management professionals working in privacy and data protection, information security, compliance and operational risk. See: LNB News 05/05/2020 11.

The WTO Secretariat has published a report looking at how the coronavirus pandemic has affected e-commerce and the implications it has for cross-border trade. The report looks at measures introduced by governments to facilitate e-commerce and the challenges facing these initiatives. The report argues that the lessons emerging from the current crisis could incentivise global cooperation in e-commerce, facilitating cross-border trade, narrowing the digital divide and levelling the playing field for small businesses. See: LNB News 05/05/2020 34.

 

Employment

Coronavirus (COVID-19)

A ‘toolkit’ document, exploring legal duties and practical issues that will arise when the coronavirus lockdown is eased, businesses reopen and people return to work, has been published by the barristers’ chambers Cloisters. See News Analysis: Returning to work in the time of coronavirus: Cloisters publishes toolkit document.

The HMRC guidance notes for employers and employees on the Coronavirus (COVID-19) Job Retention Scheme (CJRS) were updated for a seventh time on 30 April, and the guides for employers on how to calculate 80% of wages for a claim through the CJRS, and on how to submit a claim, were also updated. See News Analysis: Coronavirus Job Retention Scheme: seventh and eighth updates to HMRC employer and employee guidance.

The Department for Education, in collaboration with the Education and Skills Funding Agency, has issued a series of updates on its guidance note for apprentices navigating life amid the coronavirus outbreak. The updates specifically relate to furloughed apprentices, end-point assessments, functional skills apprentices and qualification certification. Importantly, the guidance states that where training is undertaken by furloughed workers, at the request of their employer, workers are entitled to be paid at least the appropriate minimum wage for this time. The guidance document also features frequently asked questions to assist apprentices, employers, training providers and assessment organisations understand the changes that have been introduced. See: LNB News 30/04/2020 101.

 

Brexit

Brexit—trade deals

The UK and US governments started negotiating a UK-US Free Trade Agreement (FTA) on 5 May 2020. The talks were due to start in March 2020, but similar to negotiations on the UK-EU future relationship, they were delayed due to the coronavirus outbreak. See: LNB News 05/05/2020 62.

UK application to join the Lugano Convention

Following the UK’s recent application to accede to the Lugano Convention, Hendrik Puschmann, partner, and Lucy Penn, associate, of Farrer & Co reflect on the application. See: News Analysis: UK application to join the Lugano Convention—hedging the risk of rejection.

 

Coronavirus (COVID-19) toolkit

Access news, practical guidance & Q&As from across practice areas in one place

A coronavirus toolkit has been launched to assist organisations with common areas of concern at this challenging time. The toolkit provides easy access to curated news, practical guidance and Q&As from a number of practice areas (subject to subscription) that relate to these key concerns, including:

  • pandemic management
  • employment issues
  • businesses in distress
  • contracts

In addition to coronavirus-specific content, the toolkit also highlights additional guidance and supporting materials of relevance to each of these areas. We will continue to develop areas of interest over time.

See: Coronavirus (COVID-19) toolkit.


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