GT London Law Blog

GT London Law Blog

Legal Advisers for a Changing World

Brexit: The Great Repeal Bill and the EU’s Chemicals, Emissions, and Medicines Regimes

Posted in Brexit, Environmental

As discussed in our recent GT Alert, “Brexit: 100 Day Update“,  the UK Prime Minister Theresa May recently announced plans for a “Great Repeal Bill” for the repeal of the 1972 European Communities Act (ECA). Under the ECA, European Union (EU) law was established as part of the UK’s legal order and was given supremacy over the UK’s domestic laws.

It is intended that the Great Repeal Bill will enter into force on the date of Brexit (which appears to be March/April 2019 at the earliest). It is expected that the Great Repeal Bill will preserve the majority of existing EU law in domestic UK legislation until the UK Government has had an opportunity to assess individual EU-derived domestic laws and decide whether to retain, amend, or remove them. This process is likely to take many years, depending on the resources devoted to it.  New, post-Brexit EU law, including the decisions of the European Court of Justice, will not form part of UK domestic law.

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New Anti-Corruption Law in France: Mandatory Compliance Program for Large Companies

Posted in Compliance Programs, Corporate

On 8 November 2016, the French Parliament approved new anti-corruption legislation.  Championed by the Minister of Finance Michel Sapin, the law that is commonly known as Sapin II will fundamentally change the compliance landscape for French companies.  In particular, it will place a positive obligation on large companies, and their subsidiaries, to implement anti-corruption compliance programs.  Failure to comply with this mandatory obligation will open the company, and its directors, to sanctions.  This can include a fine of up to 200,000 Euros imposed on the CEO or board of directors, and a fine of up to 1m Euros for the company itself.

Companies falling within the scope of this obligation include those whose head office is located in France, employ at least 500 people and have revenue of at least 100m Euros.  The compliance program must include a code of conduct, whistleblowing procedures, risk assessments, due diligence on suppliers and third parties, accounting controls, training, and disciplinary policy for non-compliant staff.

These new rules will be enforced by a new anti-corruption agency created under Sapin II and headed by Xaviere Simeoni.  The aims of the new agency are to assist companies in setting up compliance programs, perform controls, sanction non-compliance and supervise monitorships. Guidelines setting out its policies and procedures in more detail are anticipated.

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Brexit: UK Government will Implement General Data Protection Regulation

Posted in Brexit, Government

The UK government has confirmed that the UK will implement the General Data Protection Regulation (GDPR).

The GDPR is the legislation by which the European Commission intends to strengthen and unify data protection for individuals within the European Union (EU). It also addresses export of personal data outside the EU. The GDPR is set to come into force in May 2018 and will replace the current EU Data Protection Directive and most national data protection laws.

During her recent question and answer session before the UK Parliament Select Committee for Culture, Media and Sport, Karen Bradley MP (the UK government minister for Culture, Media and Sport) confirmed that the UK will “opt in” to the GDPR when it comes into force in May 2018.

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Online Gambling in the UK – CMA Investigates Consumer Protection Concerns

Posted in Gaming

The UK’s Competition and Markets Authority (CMA) has recently launched an investigation into the treatment of customers by online gambling companies. This is in response to concerns raised by the Gambling Commission that certain aspects of behaviour by online gambling companies, including misleading promotions, unfair terms, and the blocking of payouts might be breaching consumer protection laws. The investigation forms part of a wider joint programme of work between the CMA and the Gambling Commission tackling issues of fairness and transparency in the UK gambling industry.

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Environmental Crimes by Companies Will Now be Prosecuted at the International Criminal Court

Posted in Environmental, International Law

The International Criminal Court (ICC) announced on 15 September 2016 that it will start to investigate environmental crimes under international law, raising the prospect that company executives could be prosecuted in The Hague in respect of corporate activities with serious environmental impacts.

An ICC policy paper on case selection and prioritisation states that the ICC Prosecutor “will give particular consideration to prosecuting [Rome Statute of the ICC] crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land“.

This marks a departure from the ICC’s historic focus on genocide, crimes against humanity, and war crimes associated with armed conflict.  The ICC’s announcement does not, however, constitute an extension of its jurisdiction, but rather the ICC will now investigate environmental crimes which arise within its existing remit – for example, environmental impacts which reach the threshold of and constitute crimes against humanity in their own right.

This development will require companies to carefully consider their activities in certain countries, particularly those activities which may, and potentially with the involvement of national governments, result in mass human rights violations such as the forcible transfer of populated land for commercial exploitation (so-called “land-grabbing”).

Any prosecutions would be subject to the normal rules and procedures governing the ICC including the requirement that any potential criminal activity can only be prosecuted if it takes place in a country which has ratified the Rome Statute, if the perpetrator originates from one of these countries, or if the UN Security Council refers a case to the ICC.  In addition, the activity must have taken place after 1 July 2002.

The United Kingdom, the Netherlands, Germany, Poland, Italy, Mexico, South Korea, and Japan are among the countries that have ratified the Rome Statute, but the United States has not yet done so.

The ICC’s policy paper is available at https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.

Brexit: Implications for the Gaming Industry

Posted in Brexit, Gaming, M&A

This note addresses the impact of Brexit on the gaming industry. It is one of a series of GTM Alerts designed to assist businesses in identifying the legal issues to consider and address in response to the UK’s referendum vote of 23 June 2016 to withdraw from the European Union. In particular, it considers the impact that Brexit might have on gaming companies located in the UK and Gibraltar. Gibraltar is a self-governing British overseas territory which joined the EU in 1973 at the same time as the UK as part of the UK rather than as a separate Member State. As a result, if the UK leaves the EU, then so too must Gibraltar.

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Breach of Warranty Claims – Teoco UK Limited (Claimant) v Aircom Jersey 4 Limited and Aircom Global Operations Limited (Defendants) [2015] EWHC (Ch)

Posted in Corporate, M&A

In the recent case of Teoco UK Limited v Aircom Jersey 4 Limited and Aircom Global Operations Limited [2015] EWHC (Ch), the High Court considered the validity of breach of warranty claim notification letters.

Facts

The claimant acquired two companies and their subsidiaries from the defendants. In the sale and purchase agreement (“SPA”) the defendants gave various general warranties, tax warranties and a tax covenant which applied in certain circumstances. The SPA contained limitation of liability provisions which provided that a defendant would not be liable for any claim unless:

  • the claimant had given notice to the defendant of the claim setting out reasonable details of the claim (including the grounds on which it was based and the claimant’s good faith estimate of the amount of the claim (including the claimant’s calculation of the loss, liability or damage alleged to have been suffered or incurred));
  • the claimant had given notice as soon as reasonably practicable after it became aware that it had such a claim, and in any event on or before 31 July 2015. The claimant was also required to, as soon as reasonably practicable, give notice to a defendant containing reasonable details of any matter or thing of which the claimant Group becomes aware that indicated that the claimant had or was likely to have a claim; and
  • legal proceedings in respect of the claim had been commenced by being properly issued and validly served on the defendant within six months of the date the defendant was first notified of the claim.

In February 2015 the claimant lawyers sent a letter to the defendants to notify them of various claims being made against the target company. The letter was tentative as it referred to “tax exposures [which] may exist”, “potential…tax liabilities” and the “estimate of…possible quantum” set out in a “preliminary report prepared by PwC”. The claimant alleged that these factors indicated that certain tax liabilities may have existed, which were not disclosed to the claimant when the SPA was signed and the claimant reserved the right to make a claim. The letter did not identify the specific warranties the claimant alleged the defendants had breached.

The defendants responded stating that the letter did not contain reasonable details of the claims.            In June 2015 the claimant sent another letter which provided some further information.

In August 2015 the claimant commenced proceedings and served a claim for breach of warranties in the High Court. The defendants made an application to strike out the claim.

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The UK Votes to Leave the European Union

Posted in Antitrust Trade & Regulation, Brexit, Competition Law

The UK voted yesterday to leave the European Union. The timetable for the UK’s exit, the terms of exit, and the UK’s post-exit relationship with the European Union (EU), are still to be determined, which will take time. Until these issues are clarified, firms with a UK presence, or UK customers, will have to address the inevitable legal uncertainty regarding the legal environment in which their businesses operate. Those firms, in the meantime, should continue to monitor developments, identify those areas where their businesses are likely to be affected by new or amended legislation and regulation – and, importantly, those areas that are unlikely to be affected – and determine how to mitigate risks in affected areas.

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STOP PRESS: E-commerce in Europe – significant regulatory changes proposed – impact on companies conducting online business in the EU

Posted in Intellectual Property & Technology, Regulatory

The European Commission (“Commission”) has today published a significant package of measures designed to eliminate barriers to cross-border e-commerce in the European Union (“EU”).  These will impact on any companies whose products or services are sold online to consumers in the EU as well as on resellers and companies providing platforms for such sales.

The package includes legislative proposals aimed at:

  • outlawing geo-blocking (i.e. blocking consumers accessing online offers available in an EU Member State that is not their home country) and other forms of discrimination on the grounds of nationality, residence or establishment within the EU;
  • increasing the transparency of prices and improving regulatory oversight for cross-border parcel delivery services; and
  • strengthening the enforcement of consumers’ rights.

While there are some notable carve-outs (e.g. for audiovisual content), the proposed ban on geo-blocking is particularly significant.  This practice has long been a thorny issue for the Commission as it tends to fragment the EU’s Single Market by preventing consumers from buying products or services in an EU Member States that is not their home country.

The geo-blocking ban is clearly a measure that would directly impact a large number of companies conducting online business in the EU.  We are, therefore, preparing a more detailed alert in relation to this topic.

In the meantime, however, please do not hesitate to contact us if you require any additional information in relation to this topic or would like to discuss these measures with us.

EU General Data Protection Regulation: What Impact for Businesses Established Outside the EU

Posted in Cybersecurity, Data Privacy

The 261-page final draft of the EU General Data Protection Regulation (GDPR), which replaces Directive 95/46/EC (Directive), was formally approved by the EU Parliament on April 14, 2016. The document is expected to be published in the Official Journal of the European Union (EU) in June, and to enter into force 20 days thereafter. The GDPR will apply, and enforcement will commence, two years from the date of entry into force, i.e., approximately in early July 2018. The repeal of the Directive will take effect as of the date when the GDPR begins to apply.

The GDPR is not just an update of a 20-year old directive that was designed at the dawn of the Internet era, and that was based on privacy principles published by the Organization for Economic Co-operation and Development (OECD) in the early 1980s. The approval of the GDPR is a significant development in the shaping of the law of privacy and data protection in the European Union as a cohesive, homogeneous whole, where one single law becomes the primary vehicle to govern the activities of very diverse countries in a particular domain.

It is time for companies that fall within the scope of the new GDPR to start preparing for the transition. This GT Alert focuses primarily on the obligations faced by companies whose principal business establishment is located outside the EU and the European Economic Area (EEA).

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