Latest legal and regulatory news: 5th November 2020

Latest legal and regulatory news: 5th November 2020

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Additional news—daily and weekly news alerts

Dates for your diary

In-house

Useful information

LexTalk®In-house: a Lexis®PSL community


 

Risk & Compliance

Data protection

MLex: European data regulators will issue guidance ‘very soon’ on how EU-based personal data exporters should implement a landmark EU court decision The guidance is needed after the European Court of Justice annulled the EU-US Privacy Shield on 16 July 2020 and imposed requirements on the use of Standard Contractual Clauses (SCCs), a widely used personal data transfer mechanism. Companies are now scrambling to find a legal basis to transfer personal data outside of the EU. See News Analysis: SCC guidance in wake of Schrems II decision landing ‘very soon’. In the meantime, see also new subtopic: International transfers of personal data, including Practice Note: International data transfers—practical compliance and Precedents: International personal data transfer—assessment and International personal data transfer—data recipient questionnaire.

The European Data Protection Supervisor (EDPS) has issued a strategic document to monitor the compliance of European institutions, bodies, offices and agencies (EUIs) with the 'Schrems II' Ruling, regarding the transfer of personal data to third countries and the US. See: LNB News 29/10/2020 121.

The European Data Protection Board (EDPB) has published version 2.0 of its Guidelines 4/2019 on Article 25 Data Protection by Design and by Default, following public consultation. See: LNB News 30/10/2020 11.

The Information Commissioner’s Office (ICO) has fined Marriott International Inc £18.4m following a cyber-attack in 2014, which is estimated to have affected 339 million guest records worldwide and remained undetected until September 2018. The ICO found that Marriott had failed to implement the necessary technical or organisational measures required to protect the personal data being processed on its systems. See: LNB News 30/10/2020 33.

Eleonor Duhs, director in the Technology, Outsourcing and Privacy team at Fieldfisher, discusses how Article 71 of the EU-UK Withdrawal Agreement will apply from a data protection perspective if the UK does not obtain an adequacy decision at the end of the Brexit transition period. See News Analysis: Legacy data under Article 71 of the Withdrawal Agreement.


 

Financial crime

The Foreign, Commonwealth & Development Office, Export Control Joint Unit, and Office of Financial Sanctions Implementation have published three guidance documents on the sanctions regulations for Lebanon, Bosnia and Herzegovina and Nicaragua, which will come into force at 11pm on 31 December 2020. The regulations will ensure EU sanctions continue to apply in the UK after IP completion day. See: LNB News 03/11/2020 106.

The Financial Action Task Force (FATF) has published a consolidated assessment ratings table which provides an overview of the ratings that assessed countries have obtained for effectiveness and technical compliance. See: LNB News 04/11/2020 64.

On 30 October 2020, Mrs Justice May, sitting in Southwark Crown Court, gave her approval to the deferred prosecution agreement (DPA), which had been provisionally approved, made between the Serious Fraud Office (SFO) and Airline Services Ltd (ASL), a company operating in the airline industry. See: LNB News 30/10/2020 100.

Transparency International has published a report rating the performance of 47 global exporters in tackling foreign bribery by companies operating abroad. Four of the 47 countries analysed, including the UK, were found to actively enforce against foreign bribery and only eight countries were found to moderately enforce against companies that pay bribes abroad. The report found that active enforcement against foreign bribery has decreased by more than one-third since 2018. Quinton Newcomb, Managing Partner, Ed Pearson, Senior Associate, and Associates Emily Lewis and Rubi Palmieri at Fulcrum Chambers discuss the report’s findings. See News Analysis: Exporting Corruption Report by Transparency International—key findings.

The government has published its response to its call for evidence concerning corporate liability for economic crime. Evidence was sought on whether the identification doctrine is deficient in effectively enforcing criminal law against large modern companies. The government has concluded that the evidence submitted was inconclusive and has commissioned an expert review into the matter by the Law Commission. See: LNB News 04/11/2020 95.

The Law Commission has launched a review investigating corporate criminal liability laws and providing ways to reform them. The Law Commission will draft an Options Paper analysing the effectiveness of the law and scope for improvement. Commercial and Common Law Commissioner, Sarah Green, said that the Law Commission aims to publish the Options Paper in late 2021. See: LNB News 03/11/2020 64.


 

Coronavirus

The ​Supreme Court has granted the Financial Conduct Authority (FCA) and other intervenors permission to appeal the decision of the FCA business interruption test case, concerning non-damage business interruption insurance claims, arising out of the coronavirus (COVID-19) lockdown. The remote hearing will commence on 16 November 2020. See: LNB News 03/11/2020 38.


 

Commercial

Brexit

International Trade Secretary, Liz Truss has delivered the keynote speech at Chatham House’s ‘Global Trade Live’ event in which she described her vision for UK trade policy. In the speech, Truss described her ambitions to ‘re-establish the UK as a major voice in global trade’ and for future trade to be driven by the values of freedom, democracy, human rights and the environment. See: LNB News 29/10/2020 108.

The Department for International Trade (DIT) has issued an update on the negotiations for a UK-US free trade agreement (FTA), reporting an ‘intensive’ round of talks between 19 and 30 October 2020. Delegations confirmed that discussions were in the advanced stages in most areas and a ‘significant proportion of legal text’ has been agreed across multiple chapters in the talks. Detailed discussions were also held on the overall legal framework for a future agreement. With both delegations confident of progress towards a comprehensive FTA, talks are set to resume shortly after the US election. See: LNB News 02/11/2020 96.

The European Commission is said to be considering next steps having received no reply from the UK to its letter of formal notice for breach of the Withdrawal Agreement. The Commission sent the letter of formal notice to the UK on 1 October 2020, after the UK government failed to address the EU’s concerns over the United Kingdom Internal Market Bill, which continues to progress through Parliament. The UK was given a month to submit its observations in response to the letter of formal notice. The Commission has since reported that no response was received in that timeframe. Laura Rees-Evans, senior associate at Fietta LLP, comments on the latest development. See: LNB News 03/11/2020 98.

HM Revenues & Customs (HMRC) has published updated guidance on applying for grants if a business completes customs declarations to help stakeholders prepare for the end of the transition period. 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 02/11/2020 11.

The government has published a range of new webpages for UK businesses on preparation for the end of the transition period. This includes the services/investment sectors and import/export sectors. Generally, the information on these webpages is not new but has been collated by sector for ease of reference and bookmarking. See: LNB News 03/11/2020 87LNB News 03/11/2020 112 and LNB News 02/11/2020 9.


 

Consumer protection

The Competition and Markets Authority (CMA) has issued an updated supplementary note for transparency in consumer cases. The supplementary note covers the CMA’s general approach to transparency, the CMA’s guidance on transparency in consumer enforcement cases, and transparency as to the identity of parties under investigation. See: LNB News 04/11/2020 89.


 

Contracts

An oral collateral contract can alter the terms of a deed (Coleman v Mondell). This case involved the court having to decide whether an oral agreement amounted to a share sale or a loan, despite there being a deed which simply transferred ownership of the shares. Mr Coleman sought specific performance of the oral loan agreement in order to get the shares, which were the security for the loan, transferred back to him. Mr Mondell did not accept that he entered into any form of loan agreement and refused to transfer the shares back to Mr Coleman. Mr Mondell’s position was that he simply purchased the shares. The court found that the deed which transferred ownership of the shares was subject to an oral collateral contract, namely an interest-free loan agreement for which the shares were security. Written by Richard Whitehouse, barrister at 3PB. See News Analysis: An oral collateral contract can alter the terms of a deed (Coleman v Mondell).


 

Corporate

Coronavirus (COVID-19)

The European Securities and Markets Authority (ESMA) has issued its annual public statement on European common enforcement priorities, which sets out the priorities that EEA corporate reporting enforcers will consider when examining listed companies’ 2020 annual financial reports. The aim is to promote the consistent application of the International Financial Reporting Standards (IFRS) and other financial and non-financial reporting requirements, and to provide adequate transparency regarding the consequences of the coronavirus (COVID-19) pandemic. See: LNB News 29/10/2020 98.


 

Company disclosures, records and registers

Companies House has announced that Companies House Direct (CHD) and WebCHeck are due to close by February 2021, with customers being encouraged to use the Companies House Service (CHS) instead, which has now replaced a majority of CHD and WebCHeck functionality. CHS now includes company snapshot reports, alphabetical search functionality and an ordering facility for certificates, certified documents and missing images. See: LNB News 29/10/2020 74.


 

Directors

Restructuring & Insolvency analysis: In Re Wow Internet Ltd [2020] EWHC 2890 (Ch)[2020] All ER (D) 127 (Oct), the applicants succeeded in a claim against the sole director of Wow Internet Ltd (Wow) in respect of various sums paid out of Wow’s bank account before and after liquidation. The applicants also obtained judgment for an overdrawn director’s loan which the director failed to show had been discharged prior to liquidation. The judgment helpfully summarises the statutory and fiduciary duties of a director and the evidential burden placed upon directors to demonstrate that money paid out of a company bank account was for legitimate company purposes. Written by Darragh Connell, barrister at Forum Chambers, who represented the successful liquidators. See News Analysis: Wow, what a judgment! Directors’ duties and the importance of contemporaneous documentary evidence (Re Wow Internet Ltd).


 

Information Law & TMT

Brexit

The government has published a fresh webpage for the digital, technology and computer services sectors, collating existing stakeholder and sectoral guidance on preparation for the end of the transition period. The majority of the guidance within the new webpage is not new but has been collated by sector for ease of reference and bookmarking. See: LNB News 04/11/2020 35.


 

Employment

Coronavirus (COVID-19)

Guidance published regarding the new coronavirus (COVID-19) national lockdown set to commence on 5 November includes details of partial and full business closures by type, and advice to work from home if possible. Also, the Coronavirus Job Retention Scheme (CJRS) is to be extended, on more generous terms, throughout November, with a corresponding postponement of the Job Support Scheme. See News Analysis: Employment aspects of the new coronavirus lockdown and the extension of the CJRS.

Two further government documents have appeared providing further information on the November 2020 extension of the Coronavirus Job Retention Scheme (CJRS) regarding the exact period of the extension, employers’ PAYE RTI submission eligibility requirements, and the ability to re-employ and furlough employees made redundant after 23 September 2020. See News Analysis: The extension of the CJRS: a small amount of further information.


 

Equality

Sarah Gilzean, Senior Associate at Morton Fraser provides a look at the employment tribunal decision in Taylor v Land Rover Jaguar in which, for the first time, the employment tribunal has confirmed protections provided under the gender reassignment provisions include gender fluid and non-binary people. See News Analysis: Gender fluid and non-binary people protected by Equality Act.


 

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

Time

Event

Subjects Covered

18 November 2020

Webinar—TMT

Autonomous vehicles (2020)

30 November 2020

Webinar—Commercial Law

Commercial law—end of year round-up 2020

8 December 2020

Webinar—In-house Counsel

Succession planning

14 December 2020

Webinar—TMT

The European Electronic Communication Code (2020)

31 December 2020

Webinar—In-house Counsel

Dealing with conflicts of interest within your organisation

31 December 2020

Webinar—Commercial Law

Recent developments in commercial contracts (2020)

On demand

Webinar—TMT

FinTech (2020)

On demand

Webinar—TMT

Cloud computing (2020)

On demand

Webinar—TMT

Drones law (2020)

On demand

Webinar—TMT

Influencers and intellectual property (2020)

On demand

Webinar—TMT

(Brief) The Copyright Directive (2020)

 


 

In-house

Virtual networking and forum events

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

11 November 2020
Modern slavery
Register now to attend

Modern slavery is a topic of vital global importance. A panel discussion on this topic will be followed by an interactive Q&A session. As this is Armistice Day, we will end the session with a minute’s silence.

8 December 2020
Gift to you
Register now to attend

This session will focus on your personal and career development. There will be an executive coach guest speaker who will address virtual networking and leadership. The session will also include both a commercial and COVID-19 update.

Various dates from October to December 2020
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. 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.


 

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.

 


 

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