Latest legal and regulatory news : 18th January

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Additional news—daily and weekly news alerts

Dates for your diary

Useful information

In-house

Risk & Compliance

Data protection

The Information Commissioner’s Office (ICO) has published updated FAQs on information rights following the end of the Brexit implementation/transition period. See: LNB News 08/01/2021 20.

The ICO has secured the sentencing of a motor insurance employee to eight months’ imprisonment (suspended for two years). RAC employee Kim Doyle transferred personal data to an accident claims management firm without authorisation. Doyle pleaded guilty to conspiracy to secure unauthorised access to computer data and to selling unlawfully obtained personal data pursuant to section 1 of the Computer Misuse Act 1990. This was the ICO’s second prosecution under the Computer Misuse Act 1990. See: LNB News 11/01/2021 6.

Financial crime prevention

In a letter to the European Commission President, Ursula von der Leyen, and Chief Brexit Negotiator, Michel Barnier, two Greens MEPs have highlighted the lack of appropriate anti-money laundering rules (AML) in the UK-EU Trade Cooperation Agreement (TCA). Philippe Lamberts MEP and Sven Giegold MEP outline how ‘the rules in the draft agreement on money laundering and terrorist financing repeat and freeze some of the major shortcomings of the EU’s current anti-money laundering rules’, recognising that current EU AML rules are ‘inadequate’. In the letter, Lamberts and Giegold detail how the missing ‘regulatory alignment’ is ‘deeply concerning’, with apprehensions that the omission may well influence investment decisions. They concede that, despite the limited benefits for the UK in the TCA, there is nothing in the draft agreement stopping the UK from becoming a ‘Singapore on Thames’ in terms of taxation and AML policies. See: LNB News 07/01/2021 52.

The Office of Financial Sanctions Implementation (OFSI) has revoked three general counter-terrorism licences relating to the provision of insurance and the payment of legal fees by third parties, which may no longer be used, and replaced the general licence relating to legal aid. OFSI advises that future applications relating to insurance policies and the payment of legal fees by third parties will be assessed on a case-by-case basis, and where payment is no longer covered by a general licence, applicants should contact HM Treasury to apply for an individual licence. See: LNB News 11/01/2021 84.

The Foreign Secretary has announced a set of business measures to prevent British organisations from being complicit or profiting from the human rights abuses in Xinjiang. Following supported research that built the evidence base for action, the government has brought in a review of export controls from the UK, including the introduction of financial penalties for businesses that fail to adhere to their statutory obligations to publish modern slavery statements, in accordance with the Modern Slavery Act 2015. The due diligence measures are set to ensure UK businesses and their supply chains will not be involved in forced labour, nor British consumers unintentionally buying products that support the gross violation of human rights in Xinjiang. The government will produce guidance to UK businesses which sets out the particular risks encountered by companies with links to Xinjiang and outlining the ‘challenges of effective due diligence there.’ Compliance is said to be compulsory for ‘central government, non-departmental bodies and executive agencies.’ See: LNB News 13/01/2021 57.

MLex: Companies must be more easily prosecuted for failing to prevent economic crime, the All-Party Parliamentary Group on Anti-Corruption and Responsible Tax have urged, beyond current legislation that only punishes failures to prevent bribery or tax evasion. A proposed amendment to the Financial Services Bill, debated in Parliament on 13 January 2021, seeks to toughen the regime. See News Analysis: Law must change to go after companies allowing financial crime, MPs urge.

Commercial

Brexit

Towards the end of the Brexit transition period, the government warned of inevitable disruption associated with new trade and customs rules and procedures for UK/EU trade. Reiterating this message, Chancellor of the Duchy of Lancaster, Michael Gove, has issued a release urging traders to ensure they are fully prepared as traffic at the GB-EU border begins to return to ‘normal’ levels after the festive period. See: LNB News 08/01/2021 78.

While the Brexit transition/implementation period ended at 11pm on 31 December 2020 (IP completion day), the government continues to issue new and updated Brexit webpages and guidance documents on the associated legal and practical changes taking effect from 1 January 2021. The guidance within the refreshed webpages may not necessarily be new but the pages are worth noting for future reference and bookmarking. Subjects covered in the last week include changes to export control legislation and licensing, guidance on moving goods from Great Britain to Northern Ireland, public procurement and information on transporting goods between GB and the EU for hauliers and commercial drivers. Further guidance may be issued, so stakeholders are advised to monitor these pages for updates. See: LNB News 07/01/2021 61, LNB News 08/01/2021 48, LNB News 08/01/2021 8 and LNB News 08/01/2021 77.

HM Revenue and Customs (HMRC) has also published updated Brexit guidance for traders. Subjects covered in this guidance include information for traders on importing and exporting goods between Great Britain and the EU. See: LNB News 12/01/2021 33.

In the first of a new series of analysis on ‘EU Relations Law’, Jack Williams of Monckton Chambers explains ‘retained EU law’, as introduced into domestic law at the end of the Brexit transition period by the European Union (Withdrawal) Act 2018. See News Analysis: Retained EU law—a guide for the perplexed.

Coronavirus (COVID-19)

The Cabinet Office has updated the webpage hosting ‘Procurement Policy Note 02/20: supplier relief due to coronavirus (COVID-19)’, to remind contracting authorities to refer to ‘Procurement Policy Note 04/20: Recovery and Transition from COVID-19’. Procurement Policy Note (PPN) 04/20 built on the provisions of PPN 02/20 from 1 July 2020 and expired on 31 October 2020, though transition/exit plans entered into under that guidance may still be ongoing. See: LNB News 13/01/2021 110.

Contracts

In Fibula Air Travel Srl v Just-US Air Srl [2020] EWHC 3048 (Comm) (a decision from 30 October 2020 but only recently made available), the High Court found that international flight restrictions due to the coronavirus pandemic had not given rise to a force majeure event entitling the claimant to terminate a ‘wet’ aircraft lease so as to excuse it from the obligation to pay instalments due under the lease. The judgment confirms the key importance of analysing the relevant force majeure clause and surrounding circumstances in determining whether performance is excused by an apparent force majeure event. The court refused the claimant’s application for a notification injunction in respect of a security deposit paid by the claimant which the defendant refused to release given the claimant’s non-payment of instalments due under the lease. See News Analysis: Force majeure consequent on coronavirus (COVID-19) pandemic and notification injunctions (Fibula Air Travel v Just-US Air).

TRW Ltd v Panasonic Industry Europe GmbH [2021] EWHC 19 (TCC) concerned a ‘battle of the forms’ international dispute over jurisdiction spanning England, Germany and Michigan. The High Court found in favour of the defendant’s argument for the application of article 25, Brussels I (recast). On an interpretation of the contracts in question, it was found that ‘the last shot fired’ doctrine had been displaced by the language used (at paras 68-74).

E-commerce

On 3 December 2020, the Court of Justice delivered its ruling in the Star Taxi App case. The case concerns the interpretation of the notion of ‘information society service’ within the meaning of EU law and assesses the compatibility with EU law of a national measure that obliges operators of IT applications putting taxi service users directly in touch with taxi drivers to obtain prior authorisation from the authorities. Matthieu Van Lierde and Alexis Laes, associates at CMS Brussels, consider the scope of these regulatory regimes and their potential impact. See News Analysis: Court of Justice confirms that taxi apps are in principle to be qualified as information society services.

The Internet Corporation for Assigned Names and Numbers (ICANN) has announced that its Open Data platform will be the permanent and only location of all Registry Functions Activity Reports and Per-Registrar Transactions Reports from 15 March 2021. The change is to facilitate greater accessibility and transparency in relation to data. To access the new data platform users must have an ICANN account. Individuals that previously had an automated script that downloaded reports directly from ICANN will have to adjust their script to download the reports using ICANN Open Data API. See: LNB News 12/01/2021 54.

Procurement

The UK government Green Paper on procurement contains far-reaching proposals for public sector eProcurement systems. Roger Bickerstaff of Bird & Bird LLP considers how the proposals have consequences that extend well beyond eProcurement issues. They will have a significant and widespread impact on public sector procurement activities. More generally, they should help to promote the development of the broader digital government agenda. See News Analysis: Bird & Bird Procurement Green Paper Briefings—eProcurement proposals.

Supply of goods

The Groceries Code Adjudicator (GCA) has launched its annual GCA survey. The survey will be used to receive early information regarding how the sector is operating in such challenging times. The survey is also a valuable opportunity for suppliers to inform the GCA about any Groceries Supply Code of Practice issues they are facing and whether regulated retails are treating them lawfully and fairly. For the first time, the survey seeks to ask suppliers to provide any feedback about retailers. The survey closes on 21 February 2021 and the GCA will publish results on its website in the spring/summer of 2021. See: LNB News 12/01/2021 25.

Corporate

Brexit

The Association for Financial Markets (AFME) has published wording setting out the selling restrictions for equity transactions for use in documentation for offerings or admissions taking place from 1 January 2021 onwards, after the end of the implementation period following the end of the UK's withdrawal from the EU. The AFME wording comprises separate EEA selling restriction wording and UK selling restriction wording. See: LNB News 12/01/2021 56.

Equity capital markets

The Quoted Companies Alliance (QCA), in its response to Lord Hill’s Listing Review, has stated that ‘somewhat radical reforms’ are needed. The QCA calls for the reinvention of the Standard Listing and for it to become the place for a more flexible approach on various policies, including free float and prospectus requirements. According to the QCA, this would allow the new market to attract dynamic companies and investors that value agility, while keeping the more regulated Premium Listing intact for the lowest risk investors. See: LNB News 08/01/2021 67.

Information Law & TMT

ePrivacy

The CMA has opened an investigation to assess whether Google’s proposals (known as its ‘Privacy Sandbox’) to remove third party cookies and other functionalities from its Chrome browser constitute anticompetitive behaviour. The investigation follows complaints which allege that Google is abusing its dominant position through the proposals. Google is seeking to replace third party cookies with a new set of tools for targeting advertising that Google says will protect consumers’ privacy to a greater extent.

See: LNB News 08/01/2021 38.

Internet

The Law Society has responded to a consultation on communication offences that was launched by the Law Commission. In the consultation, the Law Commission made proposals to reform criminal law in regard to communication offences to help target online abuse. The proposals include covering more ranges of forms of communications, covering private networks and introducing the requirement of proof of likely harm, as well as cyber flashing to ensure further protection for victims. The Law Society agrees with the reforms and had set out their response on 18 December 2020. However, concerns were raised on definitions contained in the proposed new offences. See: LNB News 07/01/2021 51.

Employment

Forthcoming developments

Following the approval of three separate vaccines in the UK and the increased likelihood of a return to normal working routines, Innes Clark, Partner at Morton Fraser, takes a look ahead at potential employment law developments and cases to watch in 2021. See News Analysis: 2021—What to expect in employment law.

Coronavirus (COVID-19)

The government has updated its guidance on working safely during coronavirus in light of the latest national restrictions imposed in England from 6 January 2021. The updated guidance sets out how to protect people who are at higher risk, ie the most vulnerable individuals are recommended not to attend work while lockdown is in effect. See: LNB News 07/01/2021 11.

Following the closure of schools as part of the third national lockdown announced on 4 January 2021, HMRC has updated its guidance on which employees an employer can put on furlough under the Coronavirus Job Retention Scheme (CJRS) and guidance for employees to clarify when the employer can claim for an employee who is unable to work because they have caring responsibilities resulting from coronavirus. See News Analysis: HMRC clarifies when employer can claim under Coronavirus Job Retention Scheme for employee unable to work due to caring responsibilities.

Additional news—daily and weekly news alerts

This document contains the highlights from the past week’s news. To receive all our news stories, whether on a daily or a weekly basis, amend your personal settings within your ‘News’ tab on the homepage by clicking on either ‘Email’ or ‘RSS’ (depending on how you prefer to receive them) on the right-hand side of the blue banner.

Dates for your diary

Useful information

Contact us

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

In-house

Virtual networking and forum events

There’s no need to feel isolated if you’re 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.

LexTalk®In-house: a Lexis®PSL community

Collaborate and network with a community of expert lawyers

LexTalk® is a new online community forum which gives Lexis®PSL subscribers the opportunity to post questions, hold conversations, participate in discussions and share best practice. It has been designed to provide a secure place for legal professionals to discuss legal developments, offer and receive peer support, and gain a sense of up to date market practice and advances in real-time.

Click here to sign up and meet like-minded community members, create a profile, connect, share, and start participating today! Alternatively, you can access LexTalk® on the key resources tab on your Practice Area home page.