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The doctrine of separability under English law means that an arbitration clause is separate from the underlying agreement. In turn, this means that the law governing the obligations of the underlying contract can be different to the law governing the arbitration agreement.
There's now a new route to transfer personal data to the US under EU GDPR – for the time being at least. On 10 July 2023 the European Commission adopted its adequacy decision for the EU-US Data Privacy Framework (DPF). Max Schrems has already said that it will be challenged in the Court of Justice of the EU (CJEU) and so this is unlikely to mark the end to the uncertainty that has hung over international data transfers since Schrems II. This briefing looks at the implications of the adequacy decision.
The recent (so far, unsuccessful) action brought by activist environmental charity ClientEarth against the directors of Shell highlights concerns around whether boards of UK companies are taking sufficient account of the wider environmental and social impacts of their decision-making and activities. In this article, we look at some of the arguments for and against changing UK law on directors' duties, in the context of a constantly evolving backdrop.
A regular briefing for the alternative asset management industry.
Read and listen to "What’s Happening in Pensions", our regular news briefing covering topical pensions law developments.
The Retained EU Law (Revocation and Reform) Act (REUL Act) has recently received Royal Assent. We look at the potential impact on data protection, e-commerce, tech and IP, together with the bigger picture on divergence from the EU in these areas.
In the recent case of Bhaur and others v Equity First Trustees (Nevis) Ltd and others [2023] EWCA Civ 534, the Court of Appeal (CoA) had to consider whether to allow taxpayers to undo, on the grounds of mistake, a voluntary disposition of their assets entered into as part of a tax avoidance scheme.
The controversial legislation to enable the Government to revoke or reform retained EU law (the Retained EU Law (Revocation and Reform) Act or REUL Act) has now Received Royal Assent. Although some of the most heavily criticised aspects of the legislation have been removed, it will still create a climate of uncertainty around retained EU law.
On 26 June 2023, the ISSB issued its inaugural standards concerning sustainability-related disclosures for international capital markets: IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information ("IFRS S1") and IFRS S2 Climate-related Disclosures ("IFRS S2") (together, the "ISSB Standards"). The UK's Financial Conduct Authority ("FCA") published a statement on the same day emphasising that it intends to update its climate-related disclosure rules to reference the ISSB Standards stating that the ISSB Standards answer "the clear market demand for complete, consistent, comparable and reliable corporate sustainability disclosures".
We are very proud to continue to be the Contributing Editor of the recently published International Comparative Legal Guide (ICLG) to Derivatives 2023.
On 8 June 2023, the Organisation for Economic Co-operation and Development ("OECD") published an updated version of its Guidelines for Multinational Enterprises (the "Guidelines"). The update was developed collaboratively by OECD member countries and supported by numerous institutional stakeholders – including the European Union. This briefing outlines the key revisions to the Guidelines and discusses how, perhaps unsurprisingly in light of the EU's contributions, they align and interact with current and proposed EU sustainable finance and ESG regimes, such as the Sustainable Finance Disclosure Regime ("SFDR"), the EU Taxonomy Regulations ("EU TR"), the Corporate Sustainability Due Diligence and Reporting Directives and voluntary initiatives such as the United Nation's Principles for Responsible Investment ("UNPRIs").
A regular briefing for the alternative asset management industry.
After a (relatively) quiet start to 2023 from the perspective of tax developments relating to the real estate sector, the Spring Budget and April's Tax Administration and Maintenance Day (TAAMD) saw the announcement of several important measures and consultations. Several of these relate to real estate funds and stem from the government's ongoing review of the UK fund landscape, such as the publication of a consultation on the possible introduction of a new form of onshore contractual fund.
On 10 May 2023, the UK Government announced plans to legislate to limit the length of non-compete restrictions in an employment context to three months.
Assessment of the employer covenant (the legal obligation and financial ability of scheme employers to support their defined benefit ("DB") scheme now and in the future) underpins any discussion of DB scheme funding between the trustees of the DB scheme and the employer group. However, monitoring the employer covenant is an important trustee responsibility at all times, not just when a triennial valuation and funding discussion is underway.
HMRC yesterday launched a consultation on a package of reforms to three important parts of the UK tax code. The areas being reviewed, which all have an international element, are transfer pricing, permanent establishments and diverted profits tax.
The European Commission issued, on 13 June 2023, a Sustainable Finance Package with a number of additional ESG measures including:
In its recent decision in Forster v Reynolds Porter Chamberlain LLP, the High Court found that City law firm, RPC, had breached its duty of care to its client, Ms Forster, after failing to keep her adequately informed of costs incurred under a conditional fee agreement ("CFA"). The Court also held that RPC were conflicted in acting for Ms Forster, and that in failing to enforce the settlement agreement in accordance with Ms Forster's wishes, it caused her to suffer loss. The decision serves as a useful reminder that whilst a CFA governs the solicitor's remuneration, it does not alter the duties owed to the client.
The Government announced on Monday that it will introduce new measures to address Strategic Lawsuits Against Public Participation ("SLAPPs") through amendments to the Economic Crime and Corporate Transparency Bill. The new measures will only address SLAPPs relating to economic crime and corruption, and it is unclear whether the Government intends to address SLAPPs in other fields in the future, or whether it sees this as the endpoint.
On 9 June, the European Commission published a draft delegated act containing the European Sustainability Reporting Standards ("ESRS") which will implement the Corporate Sustainability Reporting Directive ("CSRD"). Many organisations are setting out on the journey towards CSRD compliance by understanding how their organisation will need to report (if at all). For those that have already assessed themselves to be in the scope of CSRD, the latest draft ESRS will be of high interest, as they define the scale of the impending reporting task.