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Our first In-House Commercial Bulletin of the year is available for you to read or watch. Unsurprisingly, the focus is on Brexit—in particular its impact on dispute resolution, employment law, advertising and marketing and competition law.
The European Commission is set to finalise its assessment of the UK’s data-protection framework and will trigger the data-adequacy process ‘in the coming weeks’, a senior EU official said on 14 January 2021. The decision comes amid speculation about a possible legal challenge against any final decision as lawmakers and privacy activists are concerned about the UK’s future regulatory divergence, onward transfers to the US, and surveillance laws. See News Analysis: EU to start UK data adequacy decision-making process in ‘weeks’, top official says.
The European Data Protection Board (EDPB) and European Data Protection Supervisor (EDPS) have adopted joint opinions on the draft sets of standard contractual clauses (SCCs) for contracts between controllers and processors, and transfers of personal data to third countries. The drafts were proposed by the European Commission in November 2020 (see LNB News 13/11/2020 11 and LNB News 13/11/2020 10). See: LNB News 15/01/2021 108.
The EDPB has adopted and published draft Guidelines 01/2021 on examples regarding data breach notification under the EU’s General Data Protection Regulation, Regulation (EU) 2016/679, (EU GDPR) for public consultation. Comments on the new Guidelines 01/2021 should be sent by 2 March 2021 using the form provided on the EDPB website. See: LNB News 18/01/2021 93.
Financial crime prevention
The Joint Money-Laundering Steering Group (JMLSG) has set out the implications of the end of the Brexit transition period on its AML and CTF guidance, signposting the affected sections. See: LNB News 15/01/2021 46.
HM Treasury has updated its money laundering guidance on understanding risks and taking action for trust or company service providers. A link to the National Risk Assessment 2020 has been added. See: LNB News 18/01/2021 88.
Law360, London: The lawmaker behind plans to widen corporate criminal liability vowed on 14 January 2021 to keep pushing new rules to toughen penalties for economic crime, after an amendment to criminalise failing to prevent economic crime was dropped amid an expected lack of support in Parliament. See: MP vows to keep pushing tougher economic crime law.
Law360: The Financial Crimes Enforcement Network (FinCEN) hit Capital One with a $US 390m fine on 15 January 2021 over admitted shortcomings in its anti-money laundering (AML) programme from 2008–2014 that the agency said allowed millions of dollars in suspicious transactions to go unreported. See News Analysis: FinCEN fines Capital One $US 390m over AML violations.
Health & Safety
The Health and Safety Executive (HSE) has confirmed that it will continue to carry out spot checks and inspections for compliance with the coronavirus (COVID-19) restrictions and measures during the current lockdown. Calls and visits will also increase during this period. If a business is found not to be compliant the HSE can take immediate action, including enforcement notices and stopping certain practices until they are made safe. See: LNB News 15/01/2021 23.
Eleonor Duhs of Fieldfisher LLP and Indira Rao, Counsel for EU and International Law in the House of Commons, examine retained EU law and its impact on domestic law. See News Analysis: How to approach and interpret retained EU law—a practical guide.
HM Revenue & Customs (HMRC) has published updated guidance for stakeholders. Subjects covered in this guidance include what to do if your claims exceed your allowance for your business’s sector. See: LNB News 19/01/2021 63.
The government has published a policy paper setting out the reasonable steps that operators of frontier locations should take using the pre-lodgement model to control goods arriving into Great Britain from the EU. The model will come into force from 1 July 2021. See: LNB News 19/01/2021 10.
The Intellectual Property Office (IPO) has published updated guidance for customers and users of IP. This includes an update to the paragraph on ‘Parallel trade between the UK and the EEA’, a new paragraph and link for the bulk change of address service, information on the duration of copyright and an addition of duration of term to copyright notices. See: LNB News 15/01/2021 48.
The Office for Product Safety and Standards (OPSS) has published updated guidance on UK product safety and metrology. See: LNB News 15/01/2021 85.
The Department of Health and Social Care has published updated guidance for food businesses. See: LNB News 14/01/2021 57.
The Supreme Court has given judgment in the coronavirus (COVID-19) business interruption test case concerned with the recoverability of losses suffered by businesses during the coronavirus pandemic. In broad terms, most of the insuring clauses included within the test case have been held to provide cover for coronavirus business interruption losses. This is also a landmark judgment on the law of causation. Written by Sushma Ananda, barrister at 7 King’s Bench Walk. See News Analysis: Supreme Court gives landmark judgment in coronavirus (COVID-19) business interruption test case (Financial Conduct Authority v Arch Insurance).
In the contractual ‘battle of the forms’ to determine which party’s standard terms govern the contract concluded, the ‘last shot’ usually wins. But, in TRW v Panasonic, Mr Justice Kerr exceptionally held that the ‘first shot’ had won. This is an important decision because it demonstrates that parties firing the ‘last shot’ cannot safely assume that their ‘shot’ will always win; and that there are ways for the party firing the ‘first shot’ to ensure its terms prevail instead. Written by Chirag Karia QC, barrister at Quadrant Chambers. See News Analysis: ‘Battle of the forms’ and jurisdiction clauses (TRW v Panasonic).
The Department for Business, Energy and Industrial Strategy (BEIS) has announced amendments to the Prompt Payment Code (PPC). The changes are aimed at ensuring small businesses are paid on time by larger companies. The changes come into force on 1 July 2021. See: LNB News 19/01/2021 30.
Law360, London: Barclays Bank does not have to pay out £700,000 ($950,000) to a customer tricked into wiring funds overseas after a judge said on 18 January 2021 the lender had no reason to think the client was being manipulated behind the scenes. See News Analysis: Barclays not liable for funds stolen by FCA impersonators.
The OPSS has announced that it will publish weekly reports on products found to pose a risk to the health and safety of consumers. Products deemed unsafe may be recalled. See: LNB News 15/01/2021 92.
MLex: UK businesses face inevitable shifts in supply chains as traders learn how best to navigate new tariff rules for Northern Ireland, which sits awkwardly between the EU and UK markets under the EU-UK Trade and Cooperation Agreement (TCA). See News Analysis: Comment—EU-UK Trade and Cooperation Agreement’s Northern Irish complexities augur shifting UK supply chains.
Angharad Parry of Twenty Essex considers the current position as to the recognition and enforcement of judgments for cases in which, prior to IP completion day, this would have been achieved under the Lugano Convention 2007. See News Analysis: Continued recognition of civil judgments between the UK and Norway.
The Department for International Trade has updated guidance on imports and exports to Vietnam from the UK from 1 January 2021. See: LNB News 15/01/2021 90.
The European Grouping of Territorial Cooperation and Limited Liability Partnerships etc (Revocations and Amendments) (EU Exit) Regulations 2021 were laid for sifting on 15 January 2021. Subjects covered include amendments to legislation in the field of European Grouping of Territorial Cooperation in order to address failures of retained EU law and other deficiencies arising from the withdrawal of the UK from the EU. It also makes amendments under the Limited Liability Partnerships Act 2000 to continue to align the accounting and reporting framework for Limited Liability Partnerships with that for companies. See News Analysis: Brexit SI Bulletin—drafts laid for sifting on 15 January 2021.
The Investment Association, the trade body that represents UK investment managers, has published its report Shareholder priorities for 2021 which measures progress in the last year on the issues highlighted in its 2020 report as being key areas of concern for its members, namely: responding to climate change; audit quality; stakeholder engagement; and ethnic and gender diversity. The report sets out its members’ expectations for the 2021 AGM season, as well as how its corporate governance research service, Institutional Voting Information Service will assess companies against these expectations in 2021. See News Analysis: Analysing the Investment Association’s report on shareholder priorities for 2021.
On 25 November 2020, the European Commission published a proposal for a new Regulation, the Data Governance Act (DGA). The DGA seeks to create a new European approach to data governance, aimed at facilitating certain forms of data sharing and increasing data availability through a trust-based framework. Nicola Fulford, Partner at Hogan Lovells and Alex Ford-Cox, associate at Hogan Lovells, discuss the key elements of DGA and its implications. See News Analysis: New EU approach to data governance under the proposed Data Governance Act.
The EDPB has issued an updated statement on the withdrawal of the UK from the EU and a separate updated information note on data transfers under the EU GDPR to the UK after the Brexit transition period. See: LNB News 14/01/2021 95.
A Latvian company, SIA CV-Online Latvia (CV-Online) sued a content aggregator for the extraction and reutilisation of job notice advertisements hosted in CV-Online’s website database. In CV-Online Latvia, Case C-762/19, Advocate General Szpunar opined that the content aggregator extracted and reutilised CV-Online’s database. However, in assessing whether infringement had occurred, national courts should assess whether the extraction or reutilisation adversely affects the substantial investment incurred which gives rise to the sui generis database right. Written by Joshua Marshall, senior associate, at Fieldfisher LLP. See News Analysis: Database right infringement must adversely affect the owner’s substantial investment (CV-Online Latvia).
Internet and competition
The Competition and Market Authority has published a new research paper on ‘Algorithms: How they can reduce competition and harm consumers’ if they are misused, and has invited responses from interested parties. The consultation will close at 11.45 pm on 16 March 2021. See: LNB News 19/01/2021 88.
Despite the rollout of coronavirus vaccines across the UK, there is currently no legal basis on which the government can make vaccinations mandatory. There are, however, obvious benefits to an employer in having its workforce vaccinated. Michael Leftley, Erin Shoesmith, David Young, Sungjin Park and Dr Nathalie Moreno of Addleshaw Goddard examine the various issues that arise for employers that want to ensure their employees get vaccinated. See News Analysis: A dose of reality? Requiring employees to be vaccinated.
The government has withdrawn an exemption which previously allowed senior executives to temporarily stop their coronavirus quarantine if it was to engage in a business activity that would likely result in a significant benefit to the UK economy. See: LNB News 18/01/2021 91.
HM Revenue & Customs (HMRC) has updated its guidance on how to claim employees’ wages through the Coronavirus Job Retention Scheme (CJRS) amid the pandemic. The update includes information on requesting that HMRC does not publish CJRS claim details in circumstances where the employer considers there to be a risk of violence or intimidation. It also confirms that a list of employers claiming CJRS for periods starting on or after 1 December 2020 will be published on 26 January 2021. See: LNB News 15/01/2021 17.
The Welsh Government has announced that shops and workplaces will now have to carry out risk assessments in a bid to minimise exposure to coronavirus and prevent the spread of it. Risk assessments will only be necessary in companies and businesses that employ more than five people. See: LNB News 15/01/2021 84.
In an open letter to all UK employers, the Business Minister has called on employers to spot early signs of domestic abuse and outlined key steps they can take to build awareness of domestic abuse and help workers affected access necessary support. See: LNB News 14/01/2021 13.
Acas has published guidance on workplace support for domestic abuse victims which sets out the duty of employers to watch out for any signs of domestic abuse and respond appropriately if they think someone is a victim. They must support that person and keep a record of any incidents that the victim reports. See: LNB News 19/01/2021 92.
In Chief Constable of Devon and Cornwall Police v Town (UKEAT/0194/19/LA), the Chief Constable failed in their appeal against a decision of the employment tribunal ruling on the claim brought by a police officer following her transfer from the Response Team to an office role after she became pregnant. See Case Digest:  All ER (D) 78 (Sep).
The Home Office has updated its main EU Settlement Scheme caseworker guidance covering EU, other EEA and Swiss citizens and their family members, to deal with significant amendments made to the Immigration Rules, Appendix EU in Statement of Changes in Immigration Rules HC 813.These amendments were made to deal with the end of the transition period, and incorporate for example provisions on joining family members. See: LNB News 20/01/2021 17.
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.
Cloud computing (2020)
Drones law (2020)
Influencers and intellectual property (2020)
(Brief) The Copyright Directive (2020)
Adtech in 2020
19 January 2021
The European Electronic Communication Code (2020)
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.
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.
27 January 2021Virtual LunchRegister now to attend
A continuation of our series of Virtual Lunches that provide an insight into the legal industry and networking opportunities.Held in partnership with Flex Legal and Crafty Counsel.
27 January 2021Virtual panel discussionTime to Thrive: Tapping into the trends changing legal work right now. What does this mean for your career in-house?Register now to attend
Hybrid and remote working are likely here to stay, and there have been huge advances in the use of technology both professionally and personally over the last 12 months. How are these trends changing how we think about legal work? And what does this mean for your individual career?Co-hosted with Obelisk Support.
24 February 2021IR35, worker status and the end of self-employment?Register now to attend
The planned changes to IR35 are now scheduled to be in force in April 2021 (deferred from April 2020). Join this session to learn how you can safeguard your organisation against significant liabilities and prevent your business from making incorrect and costly decisions.Held in partnership with Radius Law and Flex Legal.
24 March 2021The commercial benefit of effective panel managementRegister now to attend
An opportunity to share experiences and helpful insights with your peers under Chatham House rules. This month we focus on effective panel management. Discover how legal teams take a strategic approach to law firm management to demonstrate commercial value to their organisations.Held in partnership with Radius Law and Flex Legal.
Various datesLexisNexis® Aspire Forum for Junior In-house LawyersTo 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.
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