The Listed Company Bi-Annual Update - September 2021
Corporate governance & reporting
2021 AGMs and Annual Reporting
- GC100 Report: The GC100 has recently reported on the results of its poll on how companies have conducted their annual general meetings ("AGMs") this season and how they perceive the purpose and future of AGMs. Key findings include (i) the majority of respondents having the authority to conduct hybrid meetings, and (ii) almost 50% of respondents indicating that this would be their preferred format for future meetings. There was a range of opinions on the purpose and future of AGMs, with nearly three quarters of respondents preferring to hold separate stakeholder events during the year rather than encourage wider stakeholder engagement at an AGM. The respondents also reported pressure on environmental, social and governance ("ESG") issues, calling for clarity, consistency and alignment of reporting standards to enable shareholders to make informed decisions in this area.
- FRC Remuneration Report: In May the Financial Reporting Council ("FRC") published a report on Changes in Remuneration Reporting following the UK Corporate Governance Code 2018 which sets out the findings of research conducted with the University of Portsmouth on board remuneration practices and policies. It found that the quantity of information reported has improved but the quality of reporting needs to develop, e.g. to avoid boilerplate language and to improve the disclosure of workforce engagement on executive remuneration, evidence of not rewarding individuals for bad performance and instances of shareholder dissent.
- FRC Interim Reports - Thematic Review: In May the FRC published a Thematic Review on the interim reports of 20 companies admitted to trading on the Main Market of the London Stock Exchange. Helpfully the review sets out the features of a high quality interim report, which include management commentary on important events in the reporting period and a description of their impact on the financial statements and a comprehensive update on the principal risks and uncertainties for the remaining six months of the financial year.
- FRC Risk Reporting: The FRC has also recently published its research on Reporting on risks, uncertainties, opportunities and scenarios, explaining what investors want from corporate reporting in these areas in order to improve their understanding of companies' strategy, resilience and viability. Investors feel that whilst the extent and quality of internal processes and conversations on these topics have developed well at company level, they aren't adequately reported. Four areas of focus were identified: the governance and processes in place for risk management, the nature of the risks, uncertainties and opportunities involved, the approach taken in responding to risk, uncertainty and opportunity and how that links to the business model, and the role of scenario or stress testing in strategic decisions and business planning. The report also helpfully includes examples of high-quality disclosures as a guide.
- FRC Report on Streamlined Energy and Carbon Reporting: Earlier this month the FRC reported on how a sample of in-scope entities have complied with the Streamlined Energy and Carbon Reporting requirements, highlighting examples of emerging good practice and setting out expectations for future reporting. Whilst the FRC was pleased to see examples of emerging sound practice, it noted that disclosures need to be understandable and relevant for users. The FRC expects entities to consider its findings when preparing their annual reports and accounts.
- ICGN GGP: At the beginning of September the International Corporate Governance Network (the "ICGN") published its updated Global Governance Principles ("GGP"). The key themes of the amendments relate to sustainability governance, risk management and disclosure, diversity and inclusion, workforce safety, stakeholder engagement and human rights (see Annex 2 of the GGP for a summary of the key revisions). The GGP should be read alongside the ICGN's Global Stewardship Principles (2020) as together the documents form the core foundation of the ICGN's policy framework.
- European Single Electronic Format Requirements: The European Single Electronic Format ("ESEF") (requiring issuers to publish and file their reports in XHTML format) applies to financial periods starting on or after 1 January 2021, for publication from 1 January 2022, and has been implemented in the UK pursuant to DTR 4.1.14. In early September the FRC's Financial Reporting Lab published UK electronic reporting survey: Results and feedback commenting on the preparations which have been made to comply with DTR 4.1.14 and providing a List of Resources to help companies understand and implement these requirements. The FRC Lab is also currently reviewing a set of UK and EU ESEF filings where companies have complied with these obligations early, with the aim of publishing further guidance in October 2021.
Market Abuse Regulation
- Under UK MAR all persons disclosing managerial responsibilities ("PDMRs") and their "persons closely associated" ("PCAs") must notify the issuer and the Financial Conduct Authority ("FCA") of all dealings in any of the issuer's securities by them or on their account (including all dealings by their investment managers) and the issuer must announce such dealings to the market. In June 2021 the time period for announcing dealings of PDMRs and PCAs was amended to allow issuers two working days after receiving the notification from the PDMR or PCA to announce the transaction.
Section 172 Statements
- In July the FRC's Financial Reporting Lab published a report on investors' expectations in respect of stakeholders, decisions and section 172 statements. The report sets out what investors are looking for in these areas, to help investors understand how companies are progressing towards their purpose and long-term success, and how companies can improve their reporting to better meet investors’ needs. Each section of the report includes market examples of useful reporting. The sections of the report discussing information on key stakeholders and information on decisions include detailed questions that companies should ask themselves. The discussion of the section 172 statement includes practical tips for companies on approaching these statements.
FRC Statement of Intent on ESG Challenges
- Against the backdrop of increasing focus on how companies comply with ESG reporting requirements and meet the demands of stakeholders, in July 2021 the FRC published a statement of intent on ESG challenges. The statement identifies a number of challenges faced by companies: production, audit and assurance, distribution, consumption, supervision and regulation. The FRC outlines the actions it plans to take in relation to these challenges, with a view to developing ESG reporting using a common conceptual framework. As regards corporate governance and reporting, the proposed action includes continuing to consider the role of the UK Corporate Governance Code in ensuring boards are taking appropriate account of ESG issues in their consideration of the long-term success of the company, and amending it as appropriate.
UK Listing Review
- In March 2021 HM Treasury published the UK Listing Review report following the review of the UK listing regime chaired by Lord Hill. The report identifies an urgent need to reform the Listing Rules and the prospectus regime to ensure the UK remains competitive post-Brexit. For further information, see our briefing note.
- In a statement published by The Chancellor of the Exchequer in April the Government accepted the recommendations of the UK Listing Review report and the Chancellor committed to present an annual "State of the City" report to Parliament in satisfaction of recommendation 1. The Government subsequently published Consultation: UK Prospectus Regime Review in July 2021 which explains how the Government suggests reviewing and potentially replacing the UK prospectus regime inherited from the EU. The consultation has four key objectives: (1) facilitating wider ownership of public companies; (2) improving the efficiency of public capital raising; (3) improving the quality of investor information; and (4) improving the agility of regulation in this area. This consultation closes on 24 September 2021 and so we await further updates following this. For further information, see our briefing note.
- The recommendation for an additional "growth" or "competitiveness" objective for the FCA will be picked up as part of the Future Regulatory Framework Review (Phase 2) this year.
- The recommendation to look at how technology can be used to improve retail investor involvement in corporate actions and in taking an appropriate stewardship role will be considered by the Department for Business, Energy and Industrial Strategy ("BEIS") as part of its wider consideration of the Law Commission's study on intermediated securities. BEIS is expected to publish its findings later this year.
- Seven of the UK Listing Review report's recommendations were directed at the FCA, which is considering these separately. It issued a consultation at the end of April, which resulted in changes to the Listing Rules relating to special purpose acquisition vehicles (or "SPACs") from 10 August 2021. The FCA issued a further consultation in July on the effectiveness of the primary markets, details of which are included in this briefing. This consultation, which discussed four possible models for the listing regime, closed on 14 September 2021 and we await the feedback from this.
ONGOING CONSULATIONS, REFORMS AND GUIDANCE
ISS consultation on ESG issues: Institutional Shareholder Services ("ISS") (the US proxy voting service) has published a survey to help develop its voting policies for 2022, along with a separate climate-related policy survey. The surveys closed on 20 August 2021 and ISS expects to open a further public comment period in October on key proposed changes to its voting policies for next year.
Audit Reforms and ARGA: Following the Kingman and Brydon reviews, it is proposed to implement audit reforms and to replace the FRC with a new independent regulator, the Audit Reporting and Governance Authority, ARGA. On 18 March 2021, the Government published White Paper: Consultation on restoring trust in audit and corporate governance. The White Paper sought views on wide-ranging reforms intended to strengthen the UK's audit, corporate reporting and corporate governance system, and responded to recommendations made by the Kingman review on the regulation of the audit industry and the Brydon review into the quality and effectiveness of audit. In particular, the White Paper proposed that (a) large public companies would be held to higher standards of governance; and (b) directors would have increased liabilities (for example greater accountability for internal controls, dividends and capital maintenance, new reporting requirements, investigation and enforcement powers for the audit regulator to deal with wrongdoing by directors and strengthening malus and clawback provisions within executive directors' remuneration). A further proposal was to expand the definition of "public interest entity" to include large private companies with two possible options for the meaning of "large" in this context. The consultation closed on 8 July 2021 and further updates are awaited. We have reviewed the impact this may have on reporting by large UK private companies.
Corporate transparency and register reform consultation: In September 2020 the Government published its response to its consultation on options to enhance the role of Companies House and increase the transparency of UK corporate entities, as described in the April 2021 Bi-Annual Update. The Government subsequently launched three consultations (Improving the quality and value of financial information on the UK companies register, Powers of the registrar and Implementing the ban on corporate directors), which closed in February. The Government is now considering the responses to these consultations in parallel and has indicated that it intends to confirm its plans for reform of the quality and value of financial information at least in 2021 with other changes in the next few years (depending on "Parliamentary time").
Future of Corporate Reporting: In October 2020 the FRC published a discussion paper on corporate reporting, exploring a new principles based corporate reporting system and challenging existing thinking about how companies can more effectively meet the information needs of investors and other stakeholders. In August 2021, the FRC published a feedback statement setting out the findings from the consultation period: there was strong support for the role of technology and the importance of non-financial reporting in a future corporate reporting model, as well as aligning initiatives with international development and working with domestic and international governments and other stakeholders to develop any new standards. The FRC will now consider how to develop and implement these ideas. Some actions have already been completed, such as the publication of a statement of intent on ESG matters.
EU Supply Chain Diligence Proposals: the EU is currently consulting on proposals (first launched in March 2021) to introduce a new mandatory human rights, environmental and governance regime. The key aim of this proposal is to promote 'corporate due diligence and corporate accountability' by making human rights, environmental and governance due diligence throughout an organisation's 'value chain' mandatory. It is proposed that the new rules (which include very significant penalties for breaches) would apply not only to businesses based within the EU, but also those outside the EU selling goods or services into the EU's internal market. Draft legislation, and potentially guidance, is expected later this year. For further information, see our briefing note.
These EU proposals reflect a wider trend towards corporate and parent company liability with respect to the actions of global subsidiaries and supply chains, including with respect to environmental and human rights matters. The concept of parental company liability was recently re-examined in the context of these types of issues by the English Supreme Court when handing down a judgment in relation to Royal Dutch Shell (see our article on Corporate liability: the expanding scope of risk for further information).
Corporate criminal liability: in June the Law Commission published a discussion paper highlighting concerns that laws relating to corporate criminal liability are currently inadequate, due to the difficulty of applying these laws to companies, and inviting views on whether and how these should be reformed. The Government also launched a public consultation which discussed some of the most pressing concerns regarding the law of corporate criminal liability and options for reform. Under the current identification doctrine, where a particular offence contains a "fault" element, also known as the "mental element" (or mens rea), the mental state of a senior person within an organisation representing the company's 'directing mind and will' can be attributed to the company to hold the company directly accountable. The discussion paper sets out a number of concerns such as confusion existing around the phrase 'directing mind and will', arguing that the mens rea element is too difficult to satisfy, and noting that smaller companies are more easily prosecuted (while larger companies often avoid prosecution). The results of the consultation, which closed on 31 August, will inform the Law Commission's options for reform to Government and an options paper will be published towards the end of the year.
Disqualification of directors: the Rating (Coronavirus) and Directors Disqualification (Dissolved Companies) Bill has been introduced to Parliament and includes provisions to extend the scope of the current investigation and enforcement regime under the Company Directors Disqualification Act 1986 to include former directors of dissolved companies. In particular, the Bill would give the Secretary of State and the official receiver powers to investigate the conduct of former directors of dissolved companies without there being a requirement to first restore the company to the register, commence disqualification proceedings against them in appropriate circumstances and seek compensation where their conduct has caused loss to creditors. The Bill also provides that these new powers will have retrospective effect. The Bill is currently passing through the House of Lords.
National security developments
National Security and Investment Act 2021
- The UK Government has created an extensive new regime, strengthening its powers to scrutinise transactions on grounds of national security pursuant to the National Security and Investment Act 2021 ("NSI Act"). The new regime will come into force on 4 January 2022.
- The NSI Act introduces a hybrid mandatory and voluntary notification regime. Mandatory notification, and an associated stand-still obligation, applies to notifiable acquisitions in 17 key sectors. These include industries which might not be thought critical to traditional national security concerns, such as transport and communications. It will be unlawful to complete a notifiable transaction in any of these sectors without prior approval from the Secretary of State. Failure to notify a deal to a newly formed "Investment Security Unit" will render the transaction void, and civil and criminal penalties may be imposed.
- The regime also allows parties to notify transactions to the Secretary of State on a voluntary basis. Parties to transactions falling outside the mandatory regime will therefore need to weigh up the risks of not notifying i.e. that the transaction could be "called-in" for more detailed scrutiny (and ultimately, if found to raise national security concerns, ordered to be unwound).
- For further details, see our related briefing.
ONGOING CONSULATIONS, REFORMS AND GUIDANCE
Potential power to block listings on national security grounds: in June HM Treasury published a Plan setting out details of a power to enable the UK Government to intervene in a listing or new admission to trading which raises national security risks. The consultation closed on 27 August 2021 and HM Treasury anticipates further technical consultations to develop the power, including details of the circumstances and rationale for Government intervention.
People, diversity and inclusion
- In May 2021 the FRC published a report entitled Workforce Engagement and the UK Corporate Governance Code: A Review of Company Reporting and Practice. The report includes case studies, notes and examples of engagement activities and outlines matters companies may wish to consider in respect of their workforce engagement mechanism.
- A designated NED remains the most common method chosen and the report suggests that the effectiveness of this approach depends on the actions actually taken by the NED and the other processes in place. Companies with an embedded practice of listening, openness and consultation appear to have more effective workforce engagement mechanisms.
- In July 2021 the FRC published a research report entitled Board Diversity and Effectiveness in FTSE 350 Companies. The report addresses the impact of gender and ethnic diversity on board effectiveness and the role of the nomination committee in recruiting diverse boards. Its main conclusions are: (1) it is the responsibility of the chair of the board to drive inclusion; (2) companies should collect more data on diversity, board dynamics and inclusion; (3) nomination committees should themselves be diverse and have a clear mandate to work with search firms that access talent from diverse pools; and (4) the greater representation of women on boards is reshaping culture and benefiting businesses from a social justice and performance perspective.
Board Diversity and the Listing Rules: The FCA has published a consultation paper on its proposals to amend the Listing Rules ("LRs") and Disclosure Guidance and Transparency Rules ("DTRs") in relation to diversity on boards and executive committees. The consultation closes on 22 October 2021 and amendments would apply to accounting periods starting on or after 1 January 2022. The FCA's proposals include a proposal to insert new provisions in the LRs to require companies to include a statement in their annual financial reports setting out whether they have met the following targets (and if they have not met the targets, an explanation as to why):
- at least 40% of the board are women (including individuals self-identifying as women);
- at least one senior board member (chair, CEO, SID or CFO) is a woman; and
- at least one board member is from a non-white ethnic minority background.
In addition, it is proposed that the DTRs be amended to indicate that a company's disclosure on its diversity policy should also include the diversity policy applied to its remuneration, audit and nominations committees; and also cover aspects such as ethnicity, sexual orientation, disability and socio-economic background.
Separately, for regulated entities, the FCA, the Prudential Regulation Authority and the Bank of England have issued a joint Discussion Paper which is intended to form the basis of proposed rules and guidance on diversity and inclusion in the financial sector. The closing date for feedback on the Discussion Paper is 30 September 2021. Our briefing note sets out further details on the proposals.
Ethnicity pay gap reporting: The Government is considering introducing a new mandatory requirement for large companies to report on their ethnicity pay gap figures, to increase equality in pay and reduce barriers to progression by ethnic minorities. It is likely that the requirement would apply to all organisations that employ more than 250 employees in the UK, in line with the existing requirement for gender pay gap reporting. The Government is yet to respond to a consultation on its proposals which ran over 2018/2019 but has confirmed that it is continuing to consider the proposals and will respond when it can.
Modern Slavery Statements: In September 2020, the UK Government published its response to the Transparency in Supply Chains Consultation it undertook in 2019 (see our briefing for more detail). It remains the case that there is no clear timeframe for these reforms as yet. In June 2021, a private members' bill was introduced to Parliament which seeks to prohibit the falsification of slavery and human trafficking statements, to establish minimum standards of transparency in supply chains in relation to modern slavery and human trafficking, and to prevent companies using supply chains which fail to demonstrate minimum standards of transparency. The bill is currently at the second reading stage in the House of Lords. Organisations are still being encouraged to publish their statements on the Government-run modern slavery statement registry, launched by the Home Office on 23 February 2021.
Post termination non-competes: Earlier this year, the Government ran a consultation on proposals to reform post termination non-compete clauses which prevent ex-employees working for a competitor. The proposals are designed to foster an environment where start-ups will flourish. The Government is considering requiring employers to pay ex-employees during any non-compete period or, alternatively, banning non-compete clauses altogether. The consultation closed on 26 February 2021 and the Government is yet to respond or set out its plans.
ISS consultation on ESG issues: as noted above in July ISS published a survey seeking views for the purposes of developing its voting policies for 2022, along with a separate climate-related policy survey. One of the questions asked relates to non-financial ESG performance conditions in incentives. It notes that since 2017, the number of publicly traded companies in Europe, North America and Asia Pacific adopting at least one ES measure has grown from less than 10% to nearly 30%. Proponents of such measures argue that companies will take ESG matters more seriously and have better business outcomes if executive pay is linked to ES (and possibly also governance) issues. Critics, however, argue that such measures are hard to quantify and could lead to executives being rewarded for vague and poorly defined outcomes for what should be part of their job. The pandemic has brought these issues to the fore and prompted many companies to make statements about their ESG credentials and in some cases incorporate these within their executive plans. ISS asks whether such metrics are appropriate and also whether they are better used in long or short-term incentives (or both).
Pension Schemes Act 2021
The Pension Schemes Act 2021 is in the process of being brought into force. There are implications for corporate activity where there is a defined benefit (DB) pension scheme and new requirements for trustees of all schemes. Key aspects, commencement dates and further details are set out in this briefing note.
DC scheme governance and disclosure
There will be various new measures designed to improve the governance of defined contribution (DC) trust-based schemes and otherwise to improve outcomes for members. Increased DC governance requirements and the associated costs are leading many employers with trust-based DC schemes to consider transferring the scheme to a master trust. The forthcoming changes include the following:
- The chair's annual governance statement will have to disclose investment returns net of charges in all default and also non-default funds (from 1 October 2021).
- The chair's annual governance statement and the scheme return to the Pensions Regulator will need to include a report on a 'value for members' assessment, for schemes with assets of less than £100 million operating for at least three years – this is intended to nudge smaller schemes towards consolidation (expected to apply in respect of the first scheme year to end after 31 December 2021).
- A ban on the charging of flat fees on default fund pots of less than £100 (expected to be from April 2022), possibly to be followed by a ban on flat fees altogether.
- Expected requirements for trustees to give a "stronger nudge" to Pension Wise guidance when members who are aged 50 or over apply to take or transfer their DC benefits other than for the purposes of consolidation, unless the individual opts out of it (expected to take effect from April 2022).
- Simplified, two-page benefit statements are expected to be required (from April 2022).
- There is currently a push from Government to facilitate DC schemes' investment in long-term, illiquid assets, including by allowing the smoothing of performance fees over five years.
Climate change and environment
COP26 – November 2021
- The UK is yet to publish its net zero strategy but it is anticipated that this will be released in advance of the UK hosting COP26 and will provide the business community with a better sense of how the UK intends to meet its ambitious targets of a 68% reduction of emissions by 2030 and 78% by 2035, building towards net-zero emissions by 2050. For the latest on COP26 and its implications on business, our COP26 page can be found here.
Glass Lewis: Say on Climate Votes
- The governance advisory body Glass Lewis has published a paper setting out its views on 'Say on Climate' votes. These type of votes (whereby shareholders of listed entities are given an opportunity to vote on climate-related matters), are growing in frequency. Generally, Glass Lewis strongly supports 'Say on Climate' vote proposals which relate to disclosure by the listed company of climate-related matters (which it notes will help ensure Task Force on Climate-Related Financial Disclosures ("TCFD") aligned reporting). However, Glass Lewis says it will generally recommend against any proposals that offer a shareholder vote on a climate plan or strategy. For further detail, see the Glass Lewis paper here.
Non-Financial Disclosures (UK and EU): As noted in our previous update, premium-listed companies are now required to disclose in accordance with the TCFD on a 'comply or explain' basis (as part of the UK Government's roadmap for the transition to mandatory climate-related reporting in line with the TCFD recommendations across the entire business and financial community within five years). The GC100 carried out a poll among its members to discover how companies have responded to the new Listing Rule requirements. The findings encouraged companies to gather information early and openly and to embrace the process, engaging with all levels of the company, as it will enable businesses to identify climate change related risk and opportunities. The FCA subsequently launched two consultations in June on extending the application of this new Listing Rule (still on a comply or explain basis) to: (i) asset managers, life insurers and FCA-regulated pension providers (CP21/17); and (ii) organisations with standard listed equity shares (excluding standard listed investment entities and shell companies) (CP21/18). The deadline for responses for these two consultations were on 9 and 10 September 2021 respectively. A response published by the Investment Association ("IA") on 10 September re-affirmed its own expectations that all listed companies should report in-line with TCFD and supported the extension of scope of mandatory reporting to the standard listing and to fixed-income asset classes. The IA response further noted these developments should not be delayed in light of ongoing work with the IFRS Foundation to develop an International Sustainability Standards Board, and suggested that the FCA should work to align its recommendations with BEIS' work relating to Audit and Corporate Governance reform to ensure consistency of disclosures in the long term. Further information on these consultations and their potential application can be found here. (See also the People, Diversity and Inclusion section above for discussion of the FCA's July 2021 consultation on board diversity reporting by listed companies.)
These developments coincide with (and take account of) Government's 2021 consultation (which closed in May 2021 and for which conclusions are still awaited) on climate-related financial disclosures, which proposes that companies and LLPs in scope would have to disclose climate-related financial information in line with the four pillars of the TCFD recommendations in their non-financial statement for financial periods beginning on or after 6 April 2022. As well as companies already required to produce a non-financial statement, this would cover certain AIM and private companies. For further information, see this briefing note.
UK Green Taxonomy: the HM Treasury recently announced the establishment of the Green Technical Advisory Group (or "GTAG"), an expert group that will provide independent non-binding advice to the government on the development and implementation of a UK green 'taxonomy' for financial and non-financial firms. The UK green taxonomy will be designed to introduce a common framework setting the bar for investments that can be defined as environmentally sustainable, to help tackle ‘greenwashing’, and support investment in sustainable projects and boost efforts to tackle climate change. It is not currently clear how far the development of the UK taxonomy will track or even consider the underlying criteria set out in the recent EU Taxonomy Regulation. Our commentary on the development of the UK's climate reporting initiatives can be found here.
Better Business Act: The Better Business Act campaign is seeking to amend section 172 of the Companies Act 2006 so that companies are obliged to operate in the interests of society and the environment while seeking to provide profits for their shareholders. To date over 700 companies have signed up in favour of this reform.
Phoenix Interior Design v Henley Homes: contract law reminders
- This case has re-iterated that the Unfair Contract Terms Act 1977 ("UCTA") can apply in situations where there is a particularly destructive contractual provision in relation to one party's rights, going beyond the popular misconception that UCTA will only bite where there is inequality of bargaining power. For more information on common misconceptions about UCTA, see this briefing note.
- The concept of "quality" in the interpretation of contracts can be difficult to define due to the subjective nature of quality. This case demonstrated the importance of ensuring that the quality specification is clear and specific while remaining general enough to cover any potential loopholes. Our commentary on the concept of quality within commercial contracts is available here.
Limiting liability in B2B contracts
For companies relying on B2B contracts, please watch our series of short videos which recap the commonly encountered liability issues in commercial contracts.
- Episode 1 covers the basics of liability caps and discusses drafting tips and pitfalls to keep in mind.
- Episode 2 covers excluding and limiting liability for negligence.
- Episode 3 discusses the impact of UCTA and recaps the reasonableness test in enforcing a liability exclusion or limitation clause which falls within its scope.
- Episode 4 covers the distinction between direct and indirect loss and debunks some common misconceptions relating to direct and indirect loss.
Betfred: lessons for B2C drafting
- We have published a briefing which discusses the key considerations to keep in mind when drafting B2C contracts, especially where the contract is made online. Key takeaways include ensuring that the terms of the contract address the issues you are most concerned about, making sure to sign-post "surprising" or important clauses while minimising complexity and taking into account consumer behaviour. We also discuss how businesses can limit their liability in relation to software errors.
Force majeure clauses in supply contracts
- Force majeure clauses have come under particular scrutiny against the backdrop of Brexit and the COVID-19 pandemic. For further information on the role of force majeure clauses where an event occurs which necessitates a change to the contract but the parties cannot agree a variation, please see our briefing.
Brexit: tariff reductions
- In this briefing we consider the impact of the UK Global Tariff Schedule which took effect on 1 January 2021 when the UK left the EU Single Market and Customs Union. We evaluate the wider effects of tariff reductions in various sectors, including food and drink, manufacturing, construction, fashion and cosmetics and retail.
IP & technology
Sky v Skykick: business considerations when filing broad based trade mark applications
- In this short recording we comment on the Court of Appeal's judgment in Sky v Skykick and explain how bad faith is established in relation to broad based trade mark registrations. The key takeaway is that owners can continue to file applications for broad specifications which cover goods and services which they may expand into in the future, however the courts will assess on a case-by-case basis whether there are facts leading to a finding of bad faith.
Security by design for consumer connected devices
- For companies involved in the tech sector, see our briefing on the Government's proposals to create a legal obligation of 'security by design' in respect of consumer connected devices. The main objective of these proposals is to ensure that no customer connected device enters the UK market unless it incorporates basic cybersecurity measures.
ONGOING CONSULATIONS, REFORMS AND GUIDANCE
As the UK waits for the Government to publish a National AI Strategy, we consider the merits of the different approaches to the regulation of AI and the importance of handling AI well. For more information, please see our briefing.
A pre-legislative scrutiny joint committee was established by the House of Lords and the House of Commons during the summer, to review the Online Safety Bill which was published in the Spring, and which creates a new legal framework for tech companies such as online user generated content platforms and search engines, to protect their users from illegal and harmful content on the internet. Please see our briefing for further details of the Bill.
Live facial recognition technology in the real estate sector
- See our briefing on the key data protection considerations which arise when introducing live facial recognition technology in public places or in the common parts of an estate.
The introduction of new standard contractual clauses
- Following on from the Schrems II judgment, the new EU standard contractual clauses came into force on 27 June 2021, giving data exporters subject to GDPR until 27 December 2022 to transition their existing arrangements to the new clauses.
- The new clauses require the parties to undertake a Schrems II-style transfer impact assessment in respect of the local laws and practices of the destination country and will increase the accountability and compliance burdens on data importers.
- For more information on the steps which businesses should take when transitioning across to the new standard contractual clauses, carrying out transfer impact assessments and ensuring ongoing compliance, please see our briefing.
ONGOING CONSULATIONS, REFORMS AND GUIDANCE
The UK ICO recently launched a consultation on its draft International Data Transfer Agreement and accompanying transfer risk assessment toolkit, for use as a safeguarding mechanism in relation to restricted personal data transfers made to third countries under UK GDPR. Please see our briefing for more information. The consultation will close on 7 October 2021.
UK data protection regime consultation: the Department for Digital, Culture, Media and Sport recently launched a consultation on the UK's future data protection regime, aimed at reducing the burden for start-ups and small businesses, and moving away from the tick box consent culture for using website cookies. It also announced its approach to granting adequacy decisions to third countries, together with a list of countries that it would prioritise its assessment efforts on first, including the UK, Singapore, the Dubai International Financial Centre and Australia.
- LIBOR, the reference rate of interest for many financial contracts, will for the most part be discontinued after 31 December 2021. SONIA (the "Sterling Overnight Index Average") is the preferred replacement rate for LIBOR in sterling markets. Regulatory guidance from the FCA and Bank of England has served to minimise new loans, bonds and derivatives business transacted on the basis of LIBOR since the beginning of Q2 2021. Throughout 2021, corporate borrowers have been working with their lenders to transition existing LIBOR exposures. In many cases, SONIA-based pricing has been adopted through the amendment of existing documentation. For further details, see our mid-year round up.
- Corporate borrowers should continue to identify older contracts (not just loans) which reference LIBOR and do not feature such provisions and engage with counterparties to amend affected contracts. Our commentary on consequences for other commercial contracts which reference LIBOR (for instance in late payment clauses) is available here.
Organisation for Economic Co-operation and Development ("OECD") agreement on global taxation
- The G7 and the OECD announced that 130 countries (representing more than 90% of global GDP) have joined a new two pillar plan to reform international taxation rules.
- Pillar One will allow jurisdictions to tax multinational enterprises ("MNEs") even if they do not have a local permanent establishment. It will apply to MNEs with global turnover above €20 billion and profitability above 10% if the MNE derives at least €1 million in revenue from the relevant jurisdiction. For smaller jurisdictions, this threshold will be lowered to €250k where GDP is below €40 billion. For in-scope MNEs, profits will be allocated to relevant jurisdictions using a revenue-based allocation key. Significantly for the UK, regulated financial services are to be excluded (the scope of what constitutes "regulated" for these purposes is not yet clear, but will clearly be important).
- Pillar Two will include Global anti-Base Erosion Rules (GloBE) under which a global minimum tax rate of at least 15% is to be introduced for MNEs that meet the €750 million revenue threshold for country-by-country reporting, subject to various exclusions, including for pension funds and investment funds.
- For more information, please see our updates here and here.
Health and Social Care Levy
- On 7 September 2021, the Government announced the introduction of a new UK-wide Health and Social Care Levy, which will be used to pay for adult social care reforms and enable the NHS to tackle the COVID-19 backlog.
- The Levy will apply from April 2022. It will initially be collected by way of a 1.25% increase to rates of NICs paid by employees, employers and self-employed persons. This means that employment earnings will be subject to both an increased rate of employee NICs (3.25% instead of 2% for higher earners) and at the same time an increased rate of employer NICs (15.05% instead of 13.8%). From April 2023 a separate 1.25% Levy will be introduced on both employees and employers and rates of NICs will return to their tax year 2021-22 rates. This Levy will also be paid by individuals working above State Pension Age, unlike NICs which are not.
- To coincide with, but separate from the Levy, rates of income tax on dividend income above the £2,000 tax-free dividend allowance will also be increased by 1.25% from April 2022.
ONGOING CONSULATIONS, REFORMS AND GUIDANCE
Notification of uncertain tax treatment: the Government is consulting on a measure, which was previously announced and consulted on in 2020, for large businesses (those with turnovers exceeding £200m and/or balance sheet totals exceeding £5bn). If the draft legislation is enacted, this will require, broadly, large businesses to notify HMRC where : (i) they have taken a position which is contrary to HMRC's known interpretation of tax law; (ii) a provision has been recognised in the accounts of the taxpayer to reflect the probability that a different tax treatment will apply to the transaction to that adopted; or (iii) there is a substantial possibility that a court or tribunal would find the treatment adopted to be incorrect, in each case where the tax at stake is at least £5 million. There is an exemption for tax neutral intra-group transactions, and a limited exemption for uncertain tax treatments arising from a choice of transfer pricing methodology. The notification requirement will apply to corporation tax returns to be filed on or after 1 April 2022, with the notification due on the same date as the return. Please see our update here for more information.
Asset Holding companies ("AHCs"): the Government is consulting on a new tax privileged regime for AHCs, to come into effect from April 2022. The reliefs available for qualifying AHCs are intended to be generous (for example, a very simple and wide-ranging exemption from capital gains on most shares and overseas land). There is some complexity around the eligibility criteria which continues to be refined, however the introduction of a new regime had been expected, as the Government has consulted widely with industry as to how to create a vehicle that will allow the UK to compete with rival jurisdictions (most notably Luxembourg) as an AHC location. As part of this review, a comprehensive review of the existing REIT regime is also being undertaken. Please see our update here for more information.
Transfer pricing: there is a new consultation on the introduction of a requirement for businesses to retain specific documentation to support their transfer pricing position.
Modernisation of stamp taxes: the Government has published a response to its wide-reaching call for evidence on the modernisation of stamp taxes. The response document notes that there is widespread support for the reform of stamp taxes and the potential digitisation of stamp duty. The Government regards the permanent adoption of the COVID-19 electronic stamp duty procedures as an interim step towards digitisation. It will now move forwards by exploring the feasibility of replacing stamp duty and Stamp Duty Reserve Tax with a single self-assessed tax on shares.
LOOK OUT FOR
Autumn Budget 2021: the Chancellor has announced that there will be an Autumn Budget on 27 October 2021. To keep abreast of this and other important changes, please sign up to our Budget update website here.
VAT on termination payments: further updated guidance from HMRC on the VAT treatment of payments made by customers pursuant to contractual provisions for early termination (including liquidated damages clauses which, where the contract is breached, terminate the contract or allow the supplier to terminate it) is still expected, but at the time of writing has not yet been published. HMRC has, however, previously updated its guidance to indicate that it now considers that such payments are normally further consideration for the underlying supply of goods or services for which the customer originally contracted. Please see the April 2021 Bi-Annual Update for further information and measures which should be taken by suppliers in light of this change of policy by HMRC.
DATES TO NOTE
5 October 2021: Gender pay gap reporting deadline for 2020-21
27 October 2021: Autumn Budget
31 October 2021 to 12 November 2021: COP26
November 2021: We expect that:
- ISS and Glass Lewis will publish their revised shareholder voting guidelines; and
- the Investment Association will publish their annual letter to Remuneration Committee chairs
31 December 2021: LIBOR will be discontinued
1 January 2022: All annual reports published on or after this date must be in the European Single Electronic Format
4 January 2022: New regime under National Security and Investments Act 2021 comes into force
COVID-19: For all our legal briefings and articles relating to COVID-19 please see our dedicated page.
B Corporations: For information on B Corporations and how they may be relevant to your business, please see our client briefing note.
Brexit: For all our legal briefings and articles relating to Brexit please see our dedicated page.