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Miriam Everett, partner and head of Data Protection and Privacy and Hannah Brown, associate, Digital, TMT, Sourcing and Data of Herbert Smith Freehills explain the new guidance from the European Data Protection Board (EDPB) on how to carry out due diligence and put into place supplementary measures when preparing for transfers of data outside the EEA/EU. See News Analysis: EDPB guidance on ensuring compliance for international data transfers following Schrems II. See also Practice Note: International data transfers—practical compliance and Precedent: International personal data transfer—assessment, which have been updated to reflect the EDPB guidance.
The Information Commissioner’s Office’s (ICO) guidance on data protection issues which may arise in relation to coronavirus (COVID-19) testing has been updated, as summarised in this report. See News Analysis: Coronavirus (COVID-19) testing: ICO updates guidance on data protection issues.
Financial crime and sanctions
The Foreign, Commonwealth & Development Office (FCDO) has published new guidance on the Lebanon (Sanctions) (EU Exit) Regulations 2020, SI 2020/612 and Mali (Sanctions) (EU Exit) Regulations 2020, SI 2020/705 to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates. See: LNB News 01/12/2020 106 and LNB News 30/11/2020 106.
Nine of the 14 ‘Working safely during coronavirus (COVID-19)’ guidance documents published originally by BEIS were updated on 26 November, providing, among other things, new information on local restriction tiers, ventilation, mental health and wellbeing and staff canteens and restaurants, and revised guidance on COVID-19 outbreaks in the workplace. See News Analysis: BEIS ‘Working safely during coronavirus’: updates to nine guides made on 26 November.
The European Council has approved conclusions calling on Member States and the European Commission to promote human rights in global supply chains and decent work worldwide. The Council has called on the Commission to launch an EU Action Plan focusing on shaping global supply chains sustainability, promoting human rights, social and environmental due diligence standards and transparency by 2021. Additionally, the Council has also asked Member States to increase their efforts to effectively implement the UN Guiding Principles on Business and Human rights, including through new or updated National Action Plans containing a mix of voluntary and mandatory measures. See: LNB News 02/12/2020 41.
The transitional arrangements under the UK-EU Withdrawal Agreement deferred many of the legal effects of Brexit in UK law, preserving legal continuity and requiring the UK to continue adhering to EU law from exit day until 11 pm on 31 December 2020 (IP completion day). As these transitional arrangements come to an end, Kieran Laird, partner at Gowling WLG, discusses the key legal changes taking effect from IP completion day and the impact on UK law and the status of EU law in the UK. See News Analysis: What does IP completion day mean for the status of EU law in the UK?
The European Union Committee (EUC) has published a letter to Chancellor of the Duchy of Lancaster and Co-Chair of the Joint Committee on the Withdrawal Agreement, Michael Gove, calling for an urgent update on the status of the implementation of the Withdrawal Agreement Protocol on Ireland/Northern Ireland. The EUC asks for a response by 10 December 2020. See: LNB News 26/11/2020 85.
New Brexit guidance to help stakeholders prepare for the end of the transition period (and beyond) keeps on coming, including this week:
● Department for International Trade (DIT) guidance on working in the UK (including among others on services and data protection and copyright)—see: LNB News 02/12/2020 77.
● Cabinet Office guidance on the subject of trading with the EU (in video form)—see: LNB News 26/11/2020 80.
● CMA guidance on its functions—see: LNB News 01/12/2020 67.
● European Commission guidance on the withdrawal of the UK and EU rules in the field of competition —see: LNB News 02/12/2020 83.
● updated Cabinet Office guidance on public sector procurement from 1 January 2021—see: LNB News 27/11/2020 28.
● Northern Ireland Office (NIO) guidance for businesses in Northern Ireland—see: LNB News 27/11/2020 49.
● updated DIT guidance on providing services and travelling for business to the EU, Switzerland, Norway, Iceland and Liechtenstein—see: LNB News 01/12/2020 19.
● updated DIT guidance ‘Trade with Japan from 1 January 2021’ with new information on how trading with Japan will change from 2021 under the UK-Japan Comprehensive Economic Partnership Agreement—see: LNB News 30/11/2020 50.
We have published an update to our Brexit Bulletin—key updates, research tips and resources. The latest edition includes commentary and updates on the key transition priorities including negotiations on the future UK-EU relationship, implementation of the Withdrawal Agreement, domestic preparation, legislation and contingency planning, plus details of new, updated and pending guidance in preparation for IP completion day. See: LNB News 30/11/2020 49.
The Financial Conduct Authority's Supreme Court appeal concerning its test case on non-damage business interruption insurance claims arising out of the coronavirus lockdown concluded on 19 November 2020. The final transcripts of all four days of the hearing have now been published to the FCA's dedicated business interruption website.See: LNB News 26/11/2020 90.
An airline’s argument that the effects of the coronavirus pandemic had been such as to frustrate the leases of three aircraft so as to make it appropriate to injunct the lessor (Latam) from issuing demands under standby letters of credit in place to secure the advance monthly rentals on the aircraft was described as ‘weak’ in the case of Salam Air v Latam Airlines. The only continuing obligation of Latam, having delivered the aircraft pursuant to the terms of the lease was to fulfil its contractual promise that neither it nor anyone else would interfere with the use, possession and quiet enjoyment of the aircraft by Salam Air (Salam). The restriction on the operation of the aircraft by coronavirus regulations did not prevent either party from performing their contractual obligations. There was no frustration of purpose (as in Krell v Henry). Even if, as was arguable, Salam had informed Latam of the specific purpose for which they intended to lease the aircraft, that purpose did not become the joint purpose of Salam and Latam. Written by David Fisher, barrister and associate member, at New Square Chambers. See News Analysis: Alleged frustration of underlying contract due to coronavirus (COVID-19) restrictions (Salam Air v Latam Airlines).
The decision in R (TF Global Markets (UK) Ltd) v Financial Ombudsman Service considers the scope of a foreign exchange trading platform’s discretion to suspend customer accounts under various anti-abuse clauses in the relevant terms of business. The court upheld a challenge to a decision of the Financial Ombudsman Service by the claimant and concluded that the platform’s terms permitted the suspension of an account on only suspicion by the platform of market abuse, subject to a Braganza duty not to exercise that discretion arbitrarily, capriciously or unreasonably. Written by Richard Hanke, barrister, at 3VB. See News Analysis: Contract interpretation and Braganza duties (R (TF Global Markets (UK) Ltd) v Financial Ombudsman Service).
In NIHL Ltd v Infinite Ltd, the Commercial Court construed the meaning of ‘reasonable endeavours to reach a full and final settlement’ in the context of the schedule to a Tomlin order agreed between the parties at trial two years earlier. The judgment considered what a ‘reasonable endeavours’ obligation might entail and the parties’ conduct concluding that the claimants had used reasonable endeavours to reach a full and final settlement. Written by Alexander Goold, barrister at Selborne Chambers. See News Analysis: ‘Reasonable endeavours’―Commercial Court considers the enforcement of the terms of a Tomlin Order (NIHL Ltd v Infinite Ltd).
Paul Stone, partner at DLA Piper, considers whether you can pre-empt an unlawful direct contract award under Public Contracts Regulations 2015 (PCR 2015), reg 32. See News Analysis: Can you pre-empt an unlawful direct contract award?
In OLM Systems v Fife Council, a public procurement award challenge, which bore many of the most common features of these challenges, the third-placed incumbent claimed the winner ought to have been excluded for non-compliance with the tender conditions, while arguing that the evaluation panel’s consensus scoring system was unlawful, and that inadequate reasons had been given in the award. In the end, the incumbent lost on all three heads of claim, including the contract itself (if the winner was disqualified), because the incumbent had come third and the delay in holding a re-run would be disproportionate. In its ruling, the court applied and extended established principles, and provided useful guidance for buyers and sellers alike on procurement evaluation methodologies and consensus scoring. Written by Joseph Dalby SC, barrister, at 36 Commercial, the 36 Group Chambers. See News Analysis: Court examines authorities’ discretion in supervising the qualitative phase of consensus scoring in public procurement (OLM Systems v Fife Council).
Professor Derrick Wyatt QC, emeritus professor of Law at the University of Oxford, examines the implications of a last-minute agreement on the future UK-EU relationship, outlining the process and potential hurdles around ratification by the EU and the possible options for provisional application of the agreement prior to its approval. See: What happens if there is a last-minute Brexit trade agreement?
The Financial Reporting Council (FRC) has reported that from its review of corporate governance reporting it has found that although the revised UK Corporate Governance Code has been embraced by some companies, for others the revised Code has not been entirely well-received. The review also highlights that corporate governance reporting ‘has to date failed to live up to stakeholder expectations and details the FRC’s expectations for improvement in a number of areas of such reporting. See: LNB News 26/11/2020 46.
The Quoted Companies Alliance (QCA) has announced the publication of the AIM Good Governance Review for 2020–2021. See: LNB News 02/12/2020 98.
Glass Lewis (GL) has published its 2021 Proxy Voting Policy Guidelines for the UK, which set out GL’s annual approach to assessing topics on the annual general meeting agenda. The guidelines are reviewed annually to reflect each market’s governance and regulatory environments while keeping a global perspective in mind. See: LNB News 26/11/2020 53.
When the original national lockdown was announced in March 2020, the government introduced a package of support measures designed to assist businesses and keep large parts of the private sector on life support. This included temporary changes to the wrongful trading regime that largely removed the financial consequences of wrongful trading. Despite originally allowing the suspension to lapse, the government has now revived the changes to the wrongful trading regime by introducing the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading and Extension of the Relevant Period) Regulations 2020, SI 2020/1349. The revived provisions commence on 26 November 2020 and are due to expire on 30 April 2021. See: Corporate Insolvency and Governance Act 2020—temporary changes to the wrongful trading regime revived until 30 April 2021.
Accounts and reports
The International Accounting Standards Board (IASB) has launched a consultation on the possible new accounting requirements for M&A deals involving companies within the same group (business combinations under common control). The deadline for comments is 1 September 2021. See: LNB News 30/11/2020 104.
Striking off, dissolution and restoration
In Re Buzzlines Coaches Ltd; Mistral Asset Finance Ltd v Registrar of Companies and another  EWHC 3027 (Ch), the court considered the effect of a disclaimer of a lease by the Crown when a company is subsequently restored to the Register of Companies. The court held that the disclaimed lease automatically revests in the company upon restoration. The court also held that if a claim is made for a vesting order (even in the alternative) within 14 days of notice of disclaimer being served, that is sufficient to avoid the disclaimer taking effect, whether or not a vesting order is made. Written by Dr Nathan Smith, barrister, at Kings Chambers. See: Does a disclaimed lease automatically revest when a company is restored? (Re Buzzlines Coaches Ltd; Mistral Asset Finance Ltd v Registrar of Companies).
The ICO has launched a new online survey asking for feedback on the Age Appropriate Design Code (the Children’s Code), and to seek information on the advice and resources the ICO can provide to help compliance with the Code. See: LNB News 02/12/2020 94.
The ICO has launched a consultation for those with responsibility for data protection concerning current or future plans on data ethics. The ICO reminds stakeholders that data ethics can help data controllers when they are considering their obligations under the General Data Protection Regulation, Regulation (EU) 2016/679 (GDPR) regime, particularly in situations where a data protection impact assessment or legitimate interest assessment is needed. The consultation closes on 16 December 2020. See: LNB News 27/11/2020 7.
The EDPB has published a short reply to News Media Europe and others on the subject of ‘cookie walls’. See: LNB News 26/11/2020 95.
The Medicines and Healthcare products Regulatory Agency and the Health Research Authority, in consultation with the ICO, have published guidance for sponsors, contract research organisations and investigator sites, on the subject of access to electronic health records (EHRs) in clinical health trials. See: LNB News 27/11/2020 40.
Advertising, marketing and sponsorship
The Department for Business, Energy & Industrial Strategy (BEIS) and the Department for Digital, Culture, Media & Sport have responded to the Competition and Markets Authority’s (CMA) market study into online platforms and digital advertising. The paper announces the creation of a Digital Markets Unit, which is designed to oversee a pro-competition regime for digital platforms. The new pro-competition regime will include platforms funded by digital advertising, such as Facebook and Google. See: LNB News 27/11/2020 17.
The ICO has announced that the director of AMS Marketing Ltd, Elia Bols, has been disqualified from acting as a director or from directly or indirectly becoming involved, without the court’s permission, in the promotion, formation or management of a company for six years. This ban comes after 75,500 unsolicited marketing calls were made by the company between October 2016 and December 2017. The Telephone Preference Service received 71 complaints about such calls between October 2016 and October 2017. See: LNB News 26/11/2020 67.
In September 2018 Citizens Advice submitted a super-complaint to the CMA relating to concerns that longstanding customers were paying more than new customers in five essential markets—mobile, broadband, cash savings, home insurance and mortgages.The CMA published its response and a package of reforms in December 2018, and has now published a progress report, 2 years on. See: LNB News 01/12/2020 104.
The Department for Digital, Culture, Media & Sport (DCMS) has announced the launch of the £250m Diversification Strategy, which outlines the government’s approach to building a 'resilient, open and sustainable supply chain' ahead of the 2027 deadline. The aim of the strategy is to tackle issues of 'overreliance on vendors and pave the way for better connectivity to improve people’s lives with lightning fast connections speeds and revolutionary data carrying capacity'. The DCMS has also announced the Telecoms Security Bill, which will create new powers to control high risk vendors. It will publish a roadmap for the complete removal of high risk vendor equipment from the UK's 5G networks. The Bill includes a requirement on telecoms providers to stop installing Huawei 5G equipment. See: LNB News 01/12/2020 7.
Dhana Doobay, senior counsel at Charles Russell Speechlys LLP, discusses Ofcom’s statement on the implementation of Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast), commonly known as the European Electronic Communications Code (EECC). See News Analysis: Ofcom statement and consultation on the European Electronic Communications Code—fair treatment for broadband and mobile customers.
The Department for Health and Social Care (DHSC), in collaboration with Public Health England, has issued new coronavirus (COVID-19) guidance, effective from 2 December 2020, on shielding and protecting people defined on medical grounds as extremely vulnerable. This new guidance is being issued to replace previous guidance on shielding that was in place during the four-week period of national restrictions (5 November–2 December 2020). The DHSC explained: ‘On 2 December the country is moving back to a tiered system of local restrictions. We have reinstated this guidance for clinically extremely vulnerable people linked to these tiers’. See: LNB News 27/11/2020 90.
The DHSC has published the full list of local restriction tiers by area, which apply in England from Wednesday, 2 December 2020. The list sets out which areas of England are in alert tiers 1, 2 or 3. See: LNB News 26/11/2020 75.
The legislation that will underpin the new coronavirus (COVID-19) local tier restrictions in England with effect from Wednesday, 2 December 2020 has also been published, together with accompanying guidance documents on the three new tiers and on the looser Christmas period arrangements that will apply from 23 to 27 December 2020 inclusive. See News Analysis: New 2 December COVID-19 tiering legislation and guidance published and Analysis of 2 December COVID-19 tiering legislation and guidance.
Three of HMRC’s guidance documents on the Coronavirus Job Retention Scheme (CJRS) were updated again, on 26 November 2020, predominantly with updated and new information regarding the wage calculations required when formulating the amount of a claim. See News Analysis: Coronavirus Job Retention Scheme guidance updated with further wage calculation information.
Status and worker categories
The Department for Education (DfE) and the Education and Skills Funding Agency have updated their guidance for apprentices, employers, training providers and assessment organisations in response to the impact of the coronavirus (COVID-19) pandemic. In particular, information about managing national and local restrictions has been added to the guidance. The guidance clarifies that ‘apprenticeship training and assessment can continue to be delivered under national restrictions and all local restriction tiers’. See: LNB News 27/11/2020 66.
SI 2020/1373: The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020, SI 2020/1373, came into force on 28 November 2020 changing the definition of a ‘protected caution’ (ie one that does not have to be disclosed by an individual if they are asked about it) to include all those given where an individual was aged under 18 years at the time. It also removed the ‘multiple conviction rule’ exemption from the scope of the definition. See: LNB News 10/07/2020 45.
SI 2020/1364: The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020, came into force on 28 November 2020 and removed youth cautions from the scope of the definition of ‘relevant matter’ in section 113A of the Police Act 1997 so that they are no longer subject to mandatory disclosure in criminal records certificates. It also removed the ‘multiple conviction rule’ from the definition. See: LNB News 10/07/2020 44.
The Home Office has issued an extensive number of new and updated guidance documents for applicants and Home Office decision makers in relation to the introduction of the post-Brexit immigration system. This primarily comes into force for non-EEA nationals from 1 December 2020, and for EEA nationals who are not covered by the EU Settlement Scheme, from 1 January 2021 (further to Statement of Changes in Immigration Rules HC 813). See: LNB News 01/12/2020 89.
The Home Office has provided further information on various matters, including the collection and delivery of Biometric Residence Permits (BRPs), a new contact number for customer enquiries, and that the Immigration Health Surcharge portal will be temporarily unavailable from 11:00–14.00 on 30 November 2020. The Home Office also published seven category-specific Sponsor Guidance documents in relation to the Temporary Worker route under the post-Brexit immigration system, which took effect from 1 December 2020. See: LNB News 27/11/2020 76.
Simon Kenny, principal associate at Eversheds Sutherland, discusses the two key legal changes taking effect in December 2020 which impact immigration law as it applies to health and social care recruitment. See News Analysis: What does IP completion day mean for health and social care recruitment?
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.
8 December 2020
14 December 2020
The European Electronic Communication Code (2020)
31 December 2020
Dealing with conflicts of interest within your organisation
Recent developments in commercial contracts (2020)
Advertising law (2020)
E-privacy regulation (2020)
Cloud computing (2020)
Drones law (2020)
Influencers and intellectual property (2020)
(Brief) The Copyright Directive (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.
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8 December 2020The fight against Modern SlaveryRegister now to attend
This session will focus on Modern Slavery and discuss the role of General Counsel in fighting it.
20 January 2021Brexit. Thriving in a new eraRegister now to attend
In this session we’ll be discussing our thoughts on how to deal with the new world (whatever that may be) after the end of the Brexit transition period. There also be an opportunity to share experiences and helpful insights with your peers under Chatham House rules.Held in partnership with Radius Law and Flex Legal.
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
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Various dates from November to December 2020LexisNexis 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. 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.
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