Latest legal and regulatory news - 24th September 2021

Latest legal and regulatory news - 24th September 2021

In this issue:

In-house resources, events and networking

Risk & Compliance



Information Law



In-house resources, events and networking

Crafty Counsel videos available in Lexis®PSL

LexisNexis® has entered into a content sharing partnership with Crafty Counsel, the market-leading provider of video guidance for in-house lawyers.

A selection of Crafty Counsel videos are available within Lexis®PSL—you can find them in the ‘Training for you and your team’ topic within Lexis®PSL In-house Advisor and they are also available alongside practical guidance and tools in related Lexis®PSL subtopic areas. Practice Note: Crafty Counsel videos in Lexis®PSL In-house Advisor contains a consolidated list of all the videos available.

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.

3 November 2021

Your essential regulatory and commercial news update

Register now to attend

We are almost a year into Brexit and settling into a new way of life post lockdown. Parts of the economy are rebounding after a tough 18 months. Yet challenges will remain, alongside renewing optimism. What should be on your radar to best support your organisation moving forward? Join us as we highlight the key priorities for legal departments from recent government and regulatory guidance updates and recommended practical next steps to consider.

8 December 2021

The fight against modern slavery

Register now to attend

40 million people are estimated to be trapped in modern slavery worldwide. 1 in 4 of them are children. 71% are women and girls. 10,000+ were identified as potential victims by the authorities in the UK in 2019. Join us as we welcome guest speakers and senior counsel to discuss the critical role you can play as senior counsel in helping in the fight against modern slavery. This is not only a moral obligation it is a regulatory obligation.

26 January 2022

The effective leader— how to lead amid disruption and complexity

Register now to attend

This free-to-join forum brings together in-house lawyers working solo, or in smaller teams, to network and learn from one another. It is a chance to connect, debate topical issues and stay ahead of the latest regulatory and legal commercial updates for legal teams. Held in partnership with Flex Legal, Radius Law and Crafty Counsel.

Various dates

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. We have several events planned for the new 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.



Risk & Compliance

Risk & Compliance forecast

Our new Risk & Compliance forecast (as at 21 September 2021) is now live. This month, we report on issues including: (1) the SRA practising certificate renewal exercise; (2) frozen assets reporting; and (3) the future of UK data protection and ePrivacy law. You can rest assured we’re tracking forthcoming regulatory changes so you can plan ahead.

See Practice Note: Risk & Compliance forecast as at 21 September 2021.

HM Treasury publishes consultation responses and policy paper on the Economic Crime Levy

HM Treasury has published the outcomes of its consultation on the Economic Crime (Anti-Money Laundering) Levy, which would be paid by entities subject to the Money Laundering Regulations to help fund new government anti-money laundering (AML) action and help deliver the reforms committed to in the 2019 Economic Crime Plan. The government has decided that AML-regulated entities will first be charged the levy during the year 1 April 2022 to 31 March 2023. The government has also published a policy paper introducing the draft legislation.

See: LNB News 22/09/2021 48.

OPBAS report notes differing levels of achievement in AML supervision

The Office for Professional Body Anti-Money Laundering Supervision (OPBAS) has released its latest report on progress made in tackling money laundering by professional body supervisors over the past year. OPBAS says supervisors of the accountancy and legal sectors have improved in recent years to achieve a level of compliance with the technical requirements of the MLRs, but the report notes differing levels of achievement and some significant weaknesses.

See: LNB News 20/09/2021 62.

FATF publishes details of webinar on money laundering from environmental crime

The Financial Action Task Force (FATF) has published details on its upcoming webinar on money laundering from environmental crime, following its report on the same topic which was published in June 2021. The webinar is expected to discuss how to protect the environment, preserve natural resources and overcome challenges such as the lack of governmental prioritisation, limited awareness, de-risking, and limited domestic and international co-ordination. The webinar will take place on 30 September 2021 at 12.00 pm.

See: LNB News 20/09/2021 70.

OFAC settlement extends sanctions reach beyond US dollar

The recent Office of Foreign Assets Control (OFAC) settlement with JC Flowers & Co over sanctions arising from non-US currency services provided by its Romanian bank subsidiary extends OFAC’s reach outside the US financial system, and highlights the need to educate foreign affiliates about US sanctions compliance, say lawyers at Arnold & Porter.

See News Analysis: OFAC settlement extends sanctions reach beyond US dollar.

US Congress to tackle anticorruption legislation, including bill to outlaw foreign bribe solicitation

MLex: A slate of US anticorruption legislation, including a bill that would outlaw the solicitation of bribes by foreign officials, awaits Congress as it returns from its summer recess. The bills enjoy a better political environment than similar measures in the past after the formation of a bipartisan anti-kleptocracy caucus and a renewed White House interest in fighting corruption.

See News Analysis: US Congress to tackle anticorruption legislation, including bill to outlaw foreign bribe solicitation.

Beazley’s cyber claims expert cites ransomware spike

Law360: Ransomware risks have grown more complex over the past year as cyber criminals increasingly rely on shaming tactics to force victim companies to pay. Data breaches and business network interruptions are no longer the main risks contributing to rising cyber insurance claims. There is also reputational damage when a hacker threatens to publish stolen data online.

See News Analysis: Beazley’s cyber claims expert cites ransomware spike.

CLLS and Law Society response to Law Commission consultation on corporate criminal liability reform

The City of London Law Society (CLLS) has published a response by a Joint Working Party of the Company Law Committees of the CLLS and the Law Society to the Law Commission’s discussion paper on corporate criminal liability. The response focuses on the company law aspects of the issues raised in the discussion paper and makes additional points to be considered. In particular, it calls for certainty for company directors of the required elements for imposing criminal liability and for potential reforms to be proportionate, highlighting the risk of the UK becoming less attractive to companies if disproportionate legislation creates significant compliance burden and increased costs.

See: LNB News 22/09/2021 54.

UK Finance publishes fraud report showing 30 per cent rise in losses

UK Finance has published its fraud report on the first half of 2021 showing the scale of fraud taking place and the criminal trend towards authorised push payment (APP) fraud which includes investment, romance and purchase scams through phone calls, messages and emails to trick people into providing personal details. The report indicates that APP fraud increased by 71% and for the first time, overtook card fraud losses and general fraud losses had increased by 30% compared to the first half of 2020.

See: LNB News 22/09/2021 19.



Brexit Bulletin—BEIS and CMA publish guidance to support UK internal market functioning

The Department for Business, Energy & Industrial Strategy (BEIS) and the Competition and Markets Authority (CMA) have published guidance to support businesses and enforcement authorities to navigate day-to-day post-Brexit trade between all four nations of the UK under the United Kingdom Internal Market Act 2020. The BEIS guidance includes information on regulations introduced to support the Office for the Internal Market launch which will support the operation of the UKIMA by gathering information and prosecuting for non-compliance.

See: LNB News 21/09/2021 35.

Brexit Bulletin—Government sets out post Brexit agenda

Lord Frost has given a statement to the House of Lords setting out the government’s intentions regarding retained EU law and jurisprudence, along with plans for regulatory reform. The statement was accompanied by the publication of a policy paper by the Cabinet Office.

See: LNB News 16/09/2021 91.

Beyond Brexit—DIT sets out digital trade policy

The Department for International Trade (DIT) has published a policy paper setting out a 5-point plan for embracing the opportunities offered by digital trade. ‘Digital trade—our approach’ outlines DIT’s vision for international digital trade, covering open digital markets, data flows, consumer and business safeguards, digital trading systems, and international co-operation and global governance. Announced by the recently appointed International Trade Secretary, Anne-Marie Trevelyan, the proposal calls for the removal of ‘unfair or discriminatory digital trade barriers’ in future agreements with countries, such as Australia, New Zealand and Singapore. The UK will also work towards securing additional cross-border agreements on data flows, underpinned by a requirement to maintain a domestic privacy legislation, while seeking to minimise ‘harmful’ and ‘unjustified’ data localisation requirements.

See: LNB News 20/09/2021 71.

Weekly roundup of HMRC post-Brexit import, export and customs guidance—20 September 2021

HMRC has updated its import, export and customs guidance to reflect the post-Brexit regime. The update covers the period from 13 September 2021 to 20 September 2021.

See: LNB News 20/09/2021 40.

Due execution by company of real property documents (Mars Capital Finance Ltd v Hussain)

Once a real property disposition to which a company is party has been registered, any insufficiency of execution for the company of the contract for the disposition ceases to be relevant. (Obiter), if it had been necessary to decide the point, the court would have held that an unwitnessed signature by a single director of the contract for the disposition was sufficient to satisfy the Law of Property (Miscellaneous Provisions) Act 1989 (not following a dictum of Mr Justice Lewison in Redcard Ltd v Williams). Written by Nicholas Davidson QC at 4 New Square.

See News Analysis: Due execution by company of real property documents (Mars Capital Finance Ltd v Hussain).

CMA publishes guidance on making environmental claims and the green claims code

The CMA has published guidance on making environmental claims via the green claims code to help businesses comply with their obligations under consumer protection law when making such claims. The guidance details relevant principles and provides examples and case studies of their application as well as explaining the legal framework the principles are based on. These principles are that claims must be truthful and accurate, clear and unambiguous, substantiated, must not omit or hide important relevant information, must consider the full life cycle of the product or service and comparisons must be fair and meaningful.

See: LNB News 20/09/2021 18.

Powers of national courts to invalidate unfair contract terms (JZ v OTP Jelzálogbank Zrt OTP Bank Nyrt OTP Faktoring Követeléskezelő Zrt)

A borrower under a consumer loan agreement denominated in a foreign currency complained about unfair terms providing for different exchange rates to apply to release of the funds and their repayment. National law remedied that issue to the limited extent of substituting a term providing for an official exchange rate to apply. However, other terms of the agreement pertaining to exchange rate risk continued to be borne by the consumer, who complained that national law was incompatible with EU law on unfair contract terms in this respect. The Court of Justice rejected this complaint. So long as the consumer had effective remedies against the consequences of the unfair term, it was permissible for the agreement as a whole to be upheld even if it was not one that was in the consumer’s interests. Written by Denis Edwards, barrister, Normanton Chambers.

See News Analysis: Powers of national courts to invalidate unfair contract terms (JZ v OTP Jelzálogbank Zrt OTP Bank Nyrt OTP Faktoring Követeléskezelő Zrt).

Eighty countries agree on consumer protection article for online market deals

The European Consumer Organisation (BEUC) has announced that over 80 countries have agreed on a consumer protection article to be included in a future e-commerce international trade deal. The article defines consumer protection provisions that countries should have in place and while it does not create new rights for consumers, it would show governments understand the need to protect consumers in the online market. BEUC has cautioned that its support for the agreement will depend on the final version as topics such as data protection and artificial intelligence have yet to be discussed. Furthermore, it has stated that the agreement should not limit how the EU regulates the topic.

See: LNB News 16/09/2021 48.

Managing Franchisee Debt—update on new insolvency laws and tips for minimising franchisor financial exposure

Partner at Fieldfisher, Gordon Drakes, considers the implications of section 233B of the Insolvency Act 1986 (IA 1986).

See News Analysis: Managing Franchisee Debt—update on new insolvency laws and tips for minimising franchisor financial exposure.

MoJ establishes expert group to increase standards in e-signatures

The Ministry of Justice (MoJ) has established a new expert industry working group to increase confidence and security in electronic signatures and other means of legally executing documents. The group was set up following a Law Commission recommendation. The Group is chaired by Mr Justice Fraser under the oversight of Lord Justice Birss and assisted by Professor Sarah Green of the Law Commission alongside expert members drawn from the legal, business and technology sectors. The group aims to produce an interim report by the end of the year setting out its initial thoughts and recommendations for reform to the government.

See: LNB News 16/09/2021 75.



FRC publishes thematic review of companies’ viability and going concern disclosures

The Financial Reporting Council (FRC) has published a report reviewing companies’ viability and going concern disclosures. In its review, the FRC determines that, following the uncertainty caused by the coronavirus (COVID-19) pandemic, clear and detailed disclosures on viability and going concern prove vital. In addition, the regulator identifies areas where viability and going concern reporting could be improved. The FRC also encourages companies to extend the period over which they assess their viability and provide longer term information where possible.

See: LNB News 22/09/2021 36.

CLLS and Law Society response to FCA consultation on climate related disclosures by standard listed companies

A joint working party of the Company Law and the Planning and Environmental Law committees of the CLLS and the Law Society (Joint Working Party) have published a response to the FCA consultation paper 21/18 (CP21/18): Enhancing climate-related disclosures by standard listed companies.

See: LNB News 22/09/2021 55.

CLLS and Law Society response to draft statement on government power to call in acquisitions under the National Security and Investment Act 2021

The CLLS has published a response by a Joint Working Party of the Company Law Committees of the CLLS and the Law Society (the Committees) to the government’s draft statement (Draft Statement) on the Secretary of State’s power to call in acquisitions under the National Security and Investment Act 2021. The Draft Statement aims to help parties to an acquisition to understand whether their acquisition is likely to be called in by the Secretary of State and to plan accordingly. Overall, the Committees welcome the Draft Statement, but call for more written guidance to improve its clarity and predictability.

See: LNB News 22/09/2021 28.

Dematerialisation of shares part of proposed government reforms

The government has announced a package of proposed reforms, including the dematerialisation of shares, as part of a regulatory review following the UK’s exit from the EU. Dematerialisation will enable companies to issue shares without requiring a paper certificate and will allow existing paper shares to be converted into electronic form, reducing the risk of certificates being misplaced and the time and expense it takes to trade paper shares. The government plans to work with regulators and shareholders to determine the best mechanism for converting paper shares into electronic form, while preserving the rights of existing shareholders.

See: LNB News 20/09/2021 49.


Information Law

ICO publishes list of organisations eligible for UK BCRs

The Information Commissioner’s Office (ICO) has published a list of organisations that are automatically eligible for UK Binding Corporate Rules (BCRs) pursuant to paragraph 9 of Part 3 of Schedule 21 to the Data Protection Act 2018 (DPA 2018) and that have affirmed they seek a UK BCR.

See: LNB News 22/09/2021 18.

ICO and G7 authorities emphasise importance of cooperation in data protection

The ICO has given an overview of the meeting held between the UK Information Commissioner Elizabeth Denham and the other G7 data protection and privacy authorities between 7–8 September 2021. In a blog post on the ICO website, Denham announced that over the two-day meeting, topics such as artificial intelligence, cookies, privacy in the context of national security, and the impact of the coronavirus (COVID-19) pandemic were addressed. Denham stated the importance of taking an international approach to the work done, due to the ‘borderless’ nature of the digital world. To that effect, she announced that she and her G7 counterparts have committed to collaborating with tech firms, standards bodies, designers, civil society and users to improve the approach taken with regard to consenting to the use of personal data online.

See: LNB News 21/09/2021 14.

Court of Justice confirms downloaded software with perpetual licence is ‘sale’ of ‘goods’ under the Commercial Agents Directive (The Software Incubator Ltd v Computer Associates UK Ltd)

In The Software Incubator Ltd v Computer Associates UK Ltd, Case C‑410/19, the Court of Justice has ruled that the electronic supply of computer software, licensed for an unlimited period in return for payment of a fee, constitutes a ‘sale’ of ‘goods’ within the meaning of the Commercial Agents Directive. This ruling relates to a referral from the Supreme Court in respect of an appeal against the Court of Appeal’s decision in Computer Associates UK Ltd v Software Incubator Ltd, which had determined that the electronic supply of software did not fall within the definition of a sale of goods for the purposes of the Commercial Agents (Council Directive) Regulations 1993, SI 1993/3053.

See News Analysis: Court of Justice confirms downloaded software with perpetual licence is ‘sale’ of ‘goods’ under the Commercial Agents Directive (The Software Incubator Ltd v Computer Associates UK Ltd).

Court of Appeal upholds finding that artificial intelligence machines are not inventors (Thaler v Comptroller)

In Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374, the Court of Appeal has rejected Thaler’s appeal, upholding the findings of the Comptroller of the UK Intellectual Property Office and the Patents Court that the DABUS patent applications should be deemed to have been withdrawn. Dr Thaler owned DABUS, a creativity machine that had identified novel solutions to self-perturbations. Thaler’s applications to patent the inventions devised by DABUS were rejected by the Comptroller because AI machines did not fall within the definition of an ‘inventor’ provided by the Patents Act 1977 (PA 1977) and, as non-legal persons, could not transfer the right to apply for a patent to Thaler. On appeal, the Patents Court and now the Court of Appeal agreed. The Court of Appeal held that, within the meaning of PA 1977, the ‘inventor’ is the person who actually devised the invention and machines are not persons. The Court of Appeal clarified that the fact machines can now create inventions, which is what Thaler says happened in this case, does not mean that machines are inventors within the meaning of PA 1977.



Automatic unfair dismissal for assertion of a statutory right: an instruction may be enough

In Simoes v De Sede UK (UKEAT/0153/20/RN) the EAT held that a claimant may be able to claim automatic unfair dismissal on the basis that they have been dismissed for asserting a statutory right where an employer issues an instruction, compliance with which (the claimant asserts) would breach their statutory rights. It is not necessary to wait for the right in question to be breached in order for such a claim to ‘crystallise’.

See News Analysis: Automatic unfair dismissal for assertion of a statutory right: an instruction may be enough (Simoes v De Sede UK).

Unfair dismissal—when non-decision-maker’s motivation will be attributed to employer

In Kong v Gulf International Bank (UK) Ltd (EA-2020-000357-JOJ, EA-2020-000438-JOJ) the EAT held that in an unfair dismissal case, the Jhuti exception, when the motivation of a non-decision-maker can be attributed to the employer when ascertaining the reason for dismissal, is narrow and exceptional and three features must be present for that exception to apply.

See News Analysis: Unfair dismissal—when non-decision-maker’s motivation will be attributed to employer (Kong v Gulf International Bank (UK) Ltd).

MEPs adopt resolution demanding protection for platform workers

The European Parliament has adopted a resolution demanding that platform workers, such as food delivery workers, have the same rights as traditional employees. This includes social security contributions, responsibility for health and safety and the right to engage in collective bargaining. It proposes a reversal of the burden of proof, which would mean employers must prove there is no employment relationship. However, MEPs have cautioned that those who are genuinely self-employed should be entitled to remain in that position. The resolution was adopted by 524 votes in favour, 39 against and 124 abstentions.

See: LNB News 17/09/2021 12.

DG and another v SC Gruber Logistics SRL; Sindicatul Lucratorilor din Transporturi, DT v SC Samidani Trans SRL

In these two joined cases the claimants are Romanian lorry drivers who are claiming the difference between their actual pay and the minimum wage in Italy/Germany which they say is their habitual place of work. The Romanian court referred some questions to the European Court of Justice on the interpretation of Article 8 of Regulation (EC) No 593/2008 (Rome I) which determines the applicable law of employment contracts when an employee works abroad (see Practice Note: Applicable law—which system of law applies to the contract or employment relationship). Essentially Article 8 provides that the parties’ choice of law (if any) applies but it does not deprive the worker of mandatory laws (ie ones that would apply in the absence of a choice and cannot be derogated from by agreement). The CJEU held that minimum wage rules can, in principle, be ‘provisions that cannot be derogated from by agreement’ under Article 8(1)

See: [2021] All ER (D) 126 (Jul).

Migration Observatory publishes briefing on UK work visas and migrant workers

The Migration Observatory has published a briefing on work visas and migrant workers in the UK. The briefing examines labour migration and work visas in the UK immigration system, before and after the implementation of the post-Brexit immigration system, presenting data on migrant workers, particularly people coming to the UK on work visas. The briefing discusses some key points and changes regarding work-related immigration and includes information aimed to facilitate the understanding of policy and the understanding of evidence.

See: LNB News 17/09/2021 70.

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