Add Cooperation Agreement Mark with airSlate SignNow

Signed electronically succession agreement

hello everyone and welcome to our webinar on what impact the post-brexit trade and cooperation agreement agreed on christmas eve will have on digital services i'm adam randall a partner in our ipm media group and i'm joined by colleagues vicki weiberg on movement to people chris jeffrey is going to speak on data to strong on jurisdiction james stewart on vat and zuyang zoo on ip there are a few of us because there's a lot to cover and there's a lot of you tuned in so let's get cracking a couple of points on housekeeping we're on video but you're not so you're not visible to each other or won't be in the recording if you've got any questions or comments please ask them in the q a box which is the bottom of your screen and we'll do our best to pick them up as we go along or we'll follow up with you afterwards let's start by stepping back in time and remind ourselves of the then prime minister theresa may's vacuous statement of brexit means brexit what she should have said i think is that brexit means hard brexit and that's what we see in the tca and i'll explain that for uh you know in a few ways the uk is no longer part of the single market and it doesn't benefit from country origin protections for services the fundamental freedoms of goods people services and capital have all ended the uk is now a third country relative to the eu and without especially privileged access to the eu's market for its digital services the tca contains very few rights on which digital services can rely to facilitate their cross-border activities for future plans such as such as the establishment and operation of multi-territory services a rule of thumb could be to treat the uk and eu as separate territories for sure as of today the laws in both the uk and eu are aligned so a relatively harmonized or one market approach can still be taken to legal compliance however the divergences have already started in some key areas movements of people for example they may shortly be imposed on us on data and for example and i'll soon start to arise as eu member states start to implement key digital legislation which won't be adopted in the uk the omnibus consumer law directive is an example of that so there will be a double regulatory burden or rather multi-territory digital services will be faced with working out how they can simultaneously comply with two sets of regulations and to try and find a common approach one imminent example of that struggle i think will be the overlapping proposals that come out of the uk on online harms and they've come out of the eu in its digital services act they're both aimed at the same goal which is of increasing the responsibilities placed on online intermediaries but they take different approaches to get there that all that all means to my mind that any no deal planning that had been carried out remains very relevant i thought it'd be helpful to outline briefly the main sources of our new body of brexit law we start with the european withdrawal act 2018 that repealed the european communities act in 1972 and converted eu law as it stood at the moment of exit into uk domestic law we then had the withdrawal agreement that was agreed on in october 2019 and avoided our sort of first no deal cliff edge it remains in effect and it deals primarily with transitional matters for example trademarks it contains the northern ireland protocol and it provides the status of eu citizens we then had the european union withdrawal agreement act 2020 that implemented the withdrawal agreement in domestic uk law and then that took us to the trade and cooperation agreement agreed on christmas eve um and that forms a discussion of uh sorry forms of focus of our discussion today the european union future relationship act 2020 that was passed at breakneck speed on the 30th of december and that implements and gives effect to the tca there have been a raft of topic-specific fixing statutory instruments which are now in force they amend primary and other legislation to make it work post-brexit and to help solve any confusion the uk government has produced a raft of guidance available at the gov dot uk website and that gives some pretty high level but pretty useful pointers on what to do and hopefully for the legal profession it frequently refers to the need to take legal advice there's also equivalent eu commission guidance that's more detailed and technical but it comes from comes with a health warning from my perspective which is that it understandably doesn't reflect the steps that the uk has taken to fix its law to deal with brexit problems three concepts come out of that legislation which we're going to be hearing a lot of in coming years the first and probably the most practically important is retained eu law that was a concept created by the 2018 withdrawal act uh it is it's essentially all eu law that's been converted into uk law and covers things like eu regulations and court of justice case law it's also worth noting though that there are some exceptions to that general principle for example the uk has effectively proactively repealed some eu law which would otherwise have become retained eu law the removal of the eu's content portability regulation is a relevant example of that the uk has also excluded some core eu concepts such as the charter of fundamental rights supremacy of eu law and the ability of private actors to sue the uk government for failure to implement eu law known as frankovitch damages the second category is relevant separation agreement law that was created in the withdrawal agreement act 2020 that's effectively the now directly effective withdrawal agreements dealing with issues such as citizens rights that separation agreement is supreme over other domestic law whenever passed including the withdrawal and finally we get to the law arising out of the tca let's call that future relationship agreements law and that's the body of law that arises out of the domestic implementation of the tca and finally before we we get on to movement of people and this is one for the for the legal geeks amongst us and i firmly class myself in that category what section 29 section 29 of the future relationship what it does is truly remarkable to my mind it's going to be sort of the adele of brexit law it's going to be known only by its first name known as section 29 it gives the tca a new form of direct effect it automatically implements the tca whenever modifications are required so far as the agreement isn't otherwise implemented and so far as that implementation is necessary to comply with the uk's obligations to implement tca it's potentially very far-reaching because it requires requires us in every instance to which the tca is relevant to firstly review what the tca provides secondly compare it with existing uk law and finally identify whether that uk law requires amending and if it does require amending section 29 has automatically amended it already that's remarkable it might it might be um but it's remarkable nature will however likely be mitigated in practice for two reasons one it's subject to any actual attempts to implement the tca so its significance should reduce over time and secondly the tca should in very large part reflect existing uk law without needing section 29 to amend it having said that i can already think of parts of ip law where there may be some impacts but on that cliffhanger i'm going to cut now to vicky who's going to take us through the impact of the tca on movement of people okay thanks adam and hard maybe to follow the adele of of the future but i will do my best so um in this section we're going to spend a little bit of time looking at the movement of people and the impact of the last last few months on that it's actually obviously something that's had a really immediate effect as we'll all know because only what is that 13 14 days ago the the end of the right to free movement came about after a lot of planning and a lot of advice that we've been given we finally started uh our new world so what does that actually mean um it has a couple of impacts firstly that if you as a company have a new european so that's eu or the other countries such as norway and luxembourg and switzerland if you have new arrivals into the uk from the 1st of january then they are no longer able to come into the uk under the right to free movement and you will have to apply for a sponsorship visa for them and that will incur quite a lot more costs than it would have historically and we'll look at what that means and it also has a second impact and that is that for ea nationals who were in the uk before the 31st of december they have to apply for a pre-settled or a settled status by the 30th of june in order to be able to remain in the uk and to continue to have the right to live work or study here so two two big implications of the end of the writer free movement so you may be a company that already has european nationals ea nationals in the uk many people have already made their application for settled status or pre-settled status pre-settled status is a an application that someone would make if they have been in the uk for under five years and settled status is the application that you would make if you've been in the uk as an ea national for more than five years um you make these applications on a digital app which is available widely through um by download it's a free application originally there was a cost but it's now a free application and it's relatively quick for most people if you have been working in the uk and you have a national insurance record you don't have to upload documentation as part of the application if you don't have a national insurance record for example you're relatively newly arrived in the uk or you've maybe studied here and then you started working you may have to provide documentation as part of the application but it's something that everybody who is an ea national who's been in the uk since the end of last year will need to apply for and as a company you will need to check their application or support them and also maybe help them and be able to recognize these applications in the future so in addition to people coming into the uk we also wanted to look at business travel as it's obviously going to be something that really impacts on a lot of people and just before i get to that i've had a question just to confirm that irish nationals are exempt from these rules there are pre-existing legislative arrangements for irish nationals so if you have an irish citizen employee they don't have to make an application for pre or settled status so business travel in europe from the start of this year it says twofold so travel for european nationals ea nationals into the uk and also for british nationals into europe so the rules are relatively similar in that you are able to make a trip into the uk if you're an ea national as a visitor um you don't need a visa you're allowed to come in here for short trips so for example business meetings um maybe coming in to interview somebody for a role in the uk coming to meet suppliers clients that sort of thing holidays obviously you won't need a visa in advance when you arrive you all have a visa potentially sometimes your passport you may not if you can use the e-gates there are a list of committed activities which are essentially the ones i've just described so business kind of standard business activities also the home office and the border control will be looking at the intention of the person traveling so if somebody is coming into the uk regularly for short trips they may expect to be asked questions about their reasons to be in the uk and it may be that for those people it's helpful to provide them with for example an invitation letter which explains why they're going to be in the uk and that may be something they can then present if they ask questions um you they may be asked for example for evidence they're going to be leaving the uk so a norwood ticket for example for the flight they're going to take out something like that at the point you are able to travel um the trips into the uk don't have the same kinds of day counting rules as we would have for uk nationals going into europe so many of you all know that um going forward british nationals traveling into europe we caught by the they counting schengen rules so that allows 90 days out of every 180 to be traveling in in europe and that's across all countries so if you travel regularly you have to be very careful not to be spending too much time in in europe in the uk we don't have those same sorts of rules um each trip or each visa you're given will be for up to six months but as i say at their home office and border control will be looking at intentions so if somebody comes in for four months and then leaves and a week later comes back for another four months they may be questioned about whether they're truly a business visitor or actually going to be working in the uk similarly uh you know similar rules about business visitors um and business permitted activities in europe because the the rules in europe will be re reliant on each country it's always important just to look at the country that you're going to be traveling into or your staff are going to be traveling into and double checking any um particular rules that a particular country may have but standard business visitor activities should be fine and just a reminder the the days permitted to be in in the european canshengan area and 90 days out of each 180 days so it's a bit strange you look at a six-month period and then you kind of start again um so for for example tourism um short occasional trips are fine if you have somebody who's traveling into you up on a very regular basis have to be just careful that you're not exceeding that 90 days out of 180. um i've had a question and i'm not going to bed to have time to answer all the questions because we have as adam said a lot to get through but there is uh there are rules in relation to uh for example european nationals and generally anybody visiting the uk on the home office website there's a list of permitted activities for visitors which sets out exactly what activities a business visitor is able to do in the uk so um in addition to uh the rules for ea nationals who've been in the uk since before the end of last year we all the government and the home office also decided to use this opportunity to review our uk immigration system and there was a lot of press coverage that you may have seen so this has been described as the new points based system actually the points based system has been in place since 2008 so it's really a i'd say kind of a revision of the points based system rather than the new system entirely um we still have two types of uh what we're historically called tier two visas we have now a skilled worker visa that replaces the tier 2 general route and that's typically for lateral hires or new hires and we also have an ict visa which replaces the tier 2 ict visa and that's typically for short-term working transfers into the uk of existing group employees similarly to to a question we had before these routes don't are for non-british and irish nationals and also not for people who have set either settled status so as do you remember those are people who have already been in the uk before the end of 2020 and also not for people who have indefinite leave to remain in the uk so that might be an over a non-european national who's spent time in the uk over five years so these are for for other people in order to sponsor somebody under the skilled worker regime or under the ict regime your uk company needs to have a sponsorship license and if you already have a sponsorship license that was in place before the end of november 2020 then it will automatically convert to cover the new systems as well um if you have staff members who hold a tier 2 general visa then when they come to extend the visa they will automatically extend into the skilled worker system and the time will be amalgamated for future settlement applications as was the case before people are accruing points under these visas but the points have been changed slightly and we've listed those on on slide 11 here so all applicants need a certificate of sponsorship which is a document setting out information about the role you respond to that individual for they also under a skilled worker visa need to show that they can speak english to a required level albeit but now gcse cna level qualifications can be used for that test and also we have 20 additional points for the salary now these are tradable points by which we mean for people who are higher qualification so maybe a phd holder you don't need as many points for salary you don't need the higher level of salary so it may be a particular skilled role can vary depending on qualification level the other thing that's really important to know is that as of the start of december for skilled worker visas we can only rely on base salary so those of you who may have sponsored a visa using salary and also allowances we can't do that anymore under the skilled worker visa route it's just base salary the skilled worker route is really good in my opinion for employers it has had a lot of really beneficial changes so the first one is that the minimum salary that you need to pay somebody under this route has decreased relatively substantially down from 30 000 to 25 600 a year it may be that the skilled role that you want sponsor has a higher minimum salary but if not that's quite a big change that goes hand in hand with the fact that actually now for skilled worker visas there's a lower skill level so you can you can sponsor people who have a role which is about the same level as maybe an a level rather than a degree level um also the government have removed the requirement to complete rlmt and that was the mandatory 28-day advertising to show you cannot fill the role from the uk workforce before you issue the visa now there is some question mark about that because we do still have to show that a role is genuine before we're able to sponsor a visa and there's a lot of question marks about how you do that without advertising but the requirement to tick the boxes of the rlm team which was very owners have gone also we have no calling off period and that was a big problem under our old regime what that now means is that if you have an employee who is on an inter-company transfer visa rather than them leave the country and have to wait 12 months to switch into the skilled worker they can switch from within the uk straight away without the cooling off period and that's been a really great change in our opinion um there's also the removal of the six-year cap so historically you could only apply for visas for up to six years in this category and then you either had to apply for settlement or you had your employee would have to leave the uk going forward you you can keep extending your visa you have a removal of the settlement salary and also removal of the 10 shareholding cap as well i just had a quick question in relation to biometrics for skilled workers so amongst the many changes that the home office have introduced they have said that european nationals moving forward will be able to submit their biometrics and that for those who haven't had the pleasure of a visa replication are the photographs and fingerprints for an application will be submitted via an app so much like the certain status process and rather than in person at a biometric home office appointment so that's also a very good change i think especially in these times where centers are locked down so in addition to the skilled workers that's a replacement for the tier 2 general we still have the ict route um on this one not much has changed so salary the same same minimum level 41 500 or higher in the soccer code and skilled worker code we can continue to use allowances so if someone's coming to the uk for say two years and you want to pay them a housing allowance for a cost of living allowance we can rely on that to meet that salary level because as i said we can't on the skilled worker the skill threshold is the same still so it has to be degree level not the reduction to a level so higher skill threshold higher salary you can switch as i mentioned so you can switch from tier to ict into skilled worker from within the uk that's great if someone comes across and decides to want to stay maybe they their family likes it here and they want to stay you can switch and that allows that blue settlement if you stay in an ict visa you can't settle and on top of that you're limited in the amount of time you can spend here so five years out of six if you're a low earner uh nine years out of ten if you're a high earner and hyuna is earning over about 73 74 000 pounds um people say to me why are we going to use the ict route well you don't have to evidence english which may be helpful it's still typically going to be a bit quicker and the paperwork that you have to prepare is less onerous so there are reasons to to use this route but for a lot of people the flexibility for the skilled worker route is going to be really advantageous so sort of trap things to look out for and sort of what you could be doing now um it's really important that if you think you might need to sponsor workers going forward and some of you may be used to transferring european workers into the uk you you look at whether you have a sponsorship license and if you do does it cover your full organization a lot of companies apply for a sponsorship license and then they realize that it's been a really long time since they've looked at that sponsorship license and it just isn't up scratch anymore you may have acquired organizations you may have you know set up new overseas offices you know is your sponsor license correct do you need to make an application to expand it if you don't have a license think about applying for one they last for four years and you can use them to sponsor more than one worker so they're very good and very flexible and you might find particularly moving forward that it's handy to have that flexibility in your recruitment arrangement um if you have ea nationals who are in the uk and have been working here since before the end of last year there's some real merit in supporting them making sure that they know that they have to make their pre or settle status application have they done it do they need support a lot of people have but there's an awful lot of people who haven't done that yet and it's a very easy way to support your workforce and and particularly when everyone is working remotely at the moment you should be thinking really about your recruitment needs for 2021 onwards um when you're looking at whether to sponsor somebody think about do they have an alternative visa route they may already have that settled status they may be in the uk as the dependent of somebody that there could be a various ways that they could work in the uk if not they're probably going to need a sponsored visa um for any colleagues that are going to transfer to the uk for a short period of time they may still need a visa so anybody who's coming to work in the uk or vice versa going from the uk to work in europe will need a visa it's not based on the length of the time is based on the activity so if they're working probably need a visa and within that it's important that you're working with your hiring managers to understand the principles of the new rules so there's highly likely to be delays and transfers it's not as simple as arranging for someone to pop in the following week it can take weeks to get a visa particularly at the moment there's covered interruptions overnight we heard that a lot of the priority processes from the us for example have been postponed uh for now um so there's a lot of change all the time and it can take a long time to you know things change when you're in the middle of a process you may need more budget so for a five-year visa for a skilled or an ict visa you're looking for a large company at about 10 000 pounds in home office fees alone so it's a lot more expensive you may need to think about your budget you need to think about your compliance with your sponsor duties if you hold your sponsor license you have lots of duties the home office are going to be looking closely at these in the future and it's important that you make sure your license is compliant and because of that drop in the skill level required particularly for the skilled worker visa you may find that lots more non-uh uk nationals do apply for junior roles historically you may have decided you didn't want to spend that ten thousand pound fees on sponsoring them but going forward you might have a race discrimination risk if you choose not to sponsor somebody solely because they would need a visa so there's lots of things to think about and to be taking some advice and obviously um things will change we're only a couple of weeks into this into this new process so um that's all for me i'd like to pass on to my colleague chris who's going to talk to you about the data implications thanks vicky um and hi everyone so yeah just one slide on the gdpr consequences of brexit which i've headed up life of the third country because of course that's what's happened here we've effectively and this was the objective of brexit of course carved out one member state to become a third country um and but that makes it sounds like uk companies don't have to worry about gdpr anymore and that categorically isn't the case so what's happened as with much of eu regulation as part of the withdrawal agreement and the regulations that have followed the uk now has its own self-standing version of gdpr so practitioners like me are starting to talk about uk gdpr and eu gdpr the uk version is pretty much an identical copy and paste of its european cousin with a few obvious tweaks so it's territorial applications the uk for instance rules about data transfer out of the territory refer to transfers of uk data outside of the uk rather than outside of europe as we as we're used to now some some pro-brexit politicians not in government have started to talk about gdpr as one of a long list of european regulations that perhaps the uk might diverge from over time but crucially there's no indication yet from government that there's appetite to to do that so the real action here um is around data transfer and so let's dive straight into that because we've now got two versions of the gdpr one for the european union and one for the uk one of the most impactful areas of gdpr transfer out of the territory now raises questions for their travel of data in both directions so both from controllers and processors within the eea transferring data to the uk and uk controllers and processes transferring it into the eea now let's take them one by one for transfers europe to the uk technically the uk is already a third country by dint of having left the union but the good news is we've got a grace period at least for four months extendable for a further two during which companies do not need to be putting standard contractual clauses or bcrs or whatever it might be as a data transfer mechanism that period specifically selected so that the uk's adequacy application can be considered for those not familiar with gdpr an adequacy application is something a third country can make to the european commission in brussels where they essentially say listen i know we're outside the eu but look at our laws they're close enough to what you have within the european union that you should effectively whitelist us you should say that we're adequate and then european data can freely be processed within our territory without the need for the standard contractual clauses and other mechanisms etc so the uk has done that as you might expect given the volumes of data transferring across the border but it's it's still with the commission that hasn't been heard the four months is they think they'll have enough time to do it extendable for two in case a decision either way is not made within those first four months so adequacy would be great adequacy would in a way for this data transfer issue means there isn't a massive difference on this one issue between being in the eu and not and you might say well you can't get greater alignment between the eu and the uk because we basically copy and paste in the same rules but it's not in the bag and we can't assume that that adequacy application will be successful mainly because the same reasons that killed privacy way over in the u.s on the other side of the atlantic the intelligence agency access to data would for the first time be considered by the commission in the uk context so there's a little bit of a risk that the legislation behind gchq's ability to intercept and monitor communications might cause a problem for the adequacy application we don't know practitioners are split my sense is that political momentum um behind the deal will probably mean the adequacy application will come so that's it what does that mean in terms of companies who are in europe but have either affiliates or processes or data centers in the uk well many have already looked to do standard contractual clauses if you're halfway through that i'd probably push that to conclusion the uk regulator the ico is recommending that certainly by the end of april that would be the end of the first four months people ought to have a mechanism in place so you don't have a period where your transfers are exposed looking at it the other way around what if you're a uk company and you're transferring data you're responsible for to a supplier a vendor a data center a group company in europe well the good news there is that the uk government has recognized the whole of the eea so the eu plus as adequate for uk gdpr purposes now they've said rather cryptically they'll keep that under review but again i guess everything's under review in a sense after brexit that's the purpose of the exercise so we we're not worried there's an imminent change going to come to that already though in practice in terms of what businesses are doing because often global businesses will have some kind of data sharing document contract maybe full-on binding corporate rules to legitimize their transfers out of europe to the u.s to the far east to australia wherever it might be if it's not painful to pull the uk under those pre-existing arrangements my advice is you actually may well just go ahead and do that anyway if it's not a ton of extra work and the lift is manageable so that's that's the big one i think um data transfer other issues for some companies existing binding corporate rule applications this tends to be the really big multinationals it's the gold standard of data transfer mechanisms for those who have it if you've got an application in with the ico and it hasn't been granted yet the uk regulator you need to find a european regulator now to hear it so it can actually apply and protect your transfers from the uk to the rest of europe rather than just within the rest of europe as it were um to to to other third countries so you may need to find another regulator on the continent to to speak to there um uk and eu reps just before i wrap up this is an area of gdpr we've always had the notion that if you're subject to gdpr but you don't as an organization have your own presence on the ground in the eu let's say u.s headquartered company is doing direct to consumer e-commerce sales to european individuals doesn't have a subsidiary on on the ground doesn't have a branch none of its own people gdpr has always said in that instance you should appoint someone else who the regulators and the local individuals whose data you collect can ask questions of can make complaints to can make an audit request etc now it's quite well complied with in germany and certain of the other more conservative privacy countries but otherwise largely ignored the key thing now is you at least have this obligation in theory if you're a uk company processing european data with no presence in the eu you should appoint an eu rep somewhere in the european union there's a quite a lot of third parties you can provide that service flipping it the other way around it's also the case you know regardless what happens about adequacy it's got nothing to do with it if you're a european union country and you're processing data with uk consumers but you don't have a uk presence you should have a uk rep and of course you you end up in the slightly odd position if you're in neither territory and you're processing consumer data europe wide including the uk you should have a rep in both now i think the reality is that unless you've done a really good job of gdpr compliance you may not have thought of the rep issue in the first place so you know i wouldn't have it right at the top of your list where you've got a lot of work on other maybe more pressing more more high risk in practice areas of gdpr to work on and then last thought you know becoming a third country has some knock-on effect in some of the detailed internal and external documentation that gdpr loves and drives in such volume so privacy policies and statements you know internal to your own employees external to consumers and customers your roper or article 30 record all of those now should list the uk assuming you're a european-based company as one of the third countries to which you transfer data so a number of things to think about there and with that i will hand over to my colleague tim hello everyone uh first just to say i'm sorry you can't see me but uh someone put a drill through the internet cable outside front of my house this morning so i'm having to dial in um hence i'm asking adam to please um move the slides on for me so um adam could you i hope move us to one which says what we had and we can take a quick counter through jurisdiction enforcement and applicable law so assuming fingers crossed that we're all looking at what we had um just just to recap for governing law we had the room one convention which governed contractual obligations and rome to govern non-contractual obligations for jurisdiction we had the recast brussels regulation and for enforcement of judgments we had to recast brussels regulation and the effect of all of those uh rules was to ensure that governing your jurisdiction was recognized their choices in contracts were recognized throughout eu member states and the enforcement of judgments was a straightforward process throughout the eu and i've just added don't forget the eu service regulation because we had that to facilitate the service of proceedings within eu member states so adam if you could move on to the next slide please which is what we have now and it is truly a hard brexit uh for jurisdiction and enforcement for governing law uh fortunately there's no real change um we have uh in the uk uh enacted uh rome one and rome two into domestic law and in the eu rome one and round two will oblige the courts of eu member states to recognize their contractual choices uh of uh governing law for contractual and non-contractual obligations so no real change there for jurisdiction and enforcement the brussels uh recast regulation has fallen away now for the uk for enforcement here in england and equally in the other uk jurisdictions this is probably not going to make an enormous amount of difference we tend to respect the party's choice of jurisdiction and we have a flexible approach to enforcement the real issue here if you're involved in proceedings is what happens if you want the proceedings to take place here and your opponent tries to thought that by bringing proceedings in the eu and what happens if you get a judgment here and you then want to go and enforce it in the eu so in summary we have what i've called the hcca it's the hague convention on choice of court agreements and it applies to exclusive choices of jurisdiction in contracts otherwise if you don't have an exclusive clause in your contract you have to revert to private international law and i'll come on in a second to what that might mean for enforcement if you have an exclusive jurisdiction clause you can take the benefit of the hague convention on choice of court agreements and take your resulting judgment into europe and it will be enforced in a relatively straightforward process otherwise you will be reliant on local law and again i'll come on in a second to explain that in a little more detail there is a hay convention on the service of legal proceedings as well which applies which all eu member states are parties too the process for service is not quite as simple as under the eu service directive but in practical terms it will make no real difference adam if you could please move on to the next slide i'll take a a slightly closer look at the a conventional choice of court agreements so the eu is a signatory and the uk was a signatory by virtue of membership of the eu and with effect from the 1st of january 2021 has exceeded in its own right so the hcca will be enforced by the courts of all eu countries and what that means is that the courts must decline jurisdiction in favor of the states specified in the jurisdiction court so if your clause says the the parties will exclusively bring their disputes to the english courts if someone tries to start proceedings in france germany or wherever those courts will be obliged to stay the proceedings as i said a simplified process of recognition and enforcement of resulting judgments and there are one or two pitfalls to beware of first concerns clauses jurisdiction causes concluded prior to the first of january 2021. now in the uk we have enacted legislation which says we treat ourselves as having been signatories to this convention ever since the eu signed up some years ago but the eu courts it's yet to be seen whether they will take the same approach to be safe you need to assume that the eu will only recognize the uk succession from the first of january this year and therefore it may not enforce a jurisdiction clause in a contract concluded prior to the first of january uh there's been talk about uh contracts being restated uh for example to try and get around that requirement again there's no uh certainty that the courts of eu countries will recognize that a restatement is a new agreement for that purpose so that there's a potential issue there and beware what we call asymmetrical causes where uh one party has to bring proceedings in one country and another party can choose a different country or is perhaps not subject to a choice in the uk we are prepared to see one of those clauses as exclusive where it says that one party must bring proceedings in one particular country but we know for example in france they don't like those clauses and it's quite possible that eu courts would not consider any aspect of those clauses to be exclusive and enforce them we could please move on adam we will have what if the convention does not apply so for jurisdiction private international law will determine jurisdiction um i haven't got time to go through the details here i can do it in follow-up if anyone would like to but basically whether the english court will accept jurisdiction or whether an eu court will is going to defend depend on factors connecting the case to the jurisdiction where the relevant events took place where the witnesses are where the documents may be for example and it may depend on which court is as we call it seized first where proceedings are either first issued or served it's quite complex and it does mean there'll be less certainty for enforcement local law will apply so you want to take a judgment to germany uh german law will tell you what you have to do to enforce it go to poland it'll be polish law it will take longer it will be more costly and in some countries it may be quite challenging but many eu countries may actually mean issuing new proceedings and effectively having the matter reheard it's not ideal what i would tell you is i've been practicing for nearly 28 years and i've only once ever had to take a judgment from the uk and enforce it in another country it's more of a theoretical than practical benefit adam if i could have the next um slide please you should be seeing practical solutions so uh if you're thinking about your commercial contracts and what you should be doing now in light of brexit the obvious one you could have is an exclusive jurisdiction clause so you have the benefit of the hate convention an alternative is you could decide to provide for disputes to be resolved by arbitration and some of you will be familiar with arbitration some won't uh for those that aren't that may seem a step too far but arbitration means very easy enforcement throughout the eu because uh all member states are signatories to something called the new york convention which operates like brussels recast did for the enforcement of arbitration awards it makes it very simple indeed that said arbitration uh involves making some other choices which you would need to consider carefully for example cost can be more expensive than court proceedings in some countries it's less expensive than court proceedings than others there will there are likely to be limited rights of appeal you may not wish to to limit your rights of appeal um again if people have particular questions about arbitration i'm happy to pick them up afterwards i don't really have time to cover all all the issues there and a third way is to include in your contract uh provisions for an agent for service of process in england on that basis jurisdiction will be established here based on presence and it makes it easy to serve the proceedings it makes it quick to get the proceedings up and running so that the english court is first seized and also the english courts having their armory something called an anti-suit injunction which would stop a party trying to frustrate that jurisdiction cause from carrying on with proceedings in another country um finally a very brief word about what the future might hold the uk has applied to accede to the lugano convention the nagano convention 2007 is between the eu uh denmark uh in its own right uh switzerland and norway and it provides a very similar regime to the brussels recast regulation both for jurisdiction and enforcement and i think the expectation is that the eu will probably allow that accession within a few months in which case some of the problems we've been talking about will disappear and whilst i haven't written it down on me there is actually a hague convention on the enforcement of court judgments which has been concluded uh it's not a solution for the next year or two i think there are only four countries which have exceeded at the moment and they don't include any eu ones but that's on the horizon too um and that's a bit of a counter through i'm obviously happy to pick up in questions i won't be able to do it to file the chat box but at the end any questions people have my final point would be to say i've been talking about the commercial situation there are some exceptions for consumers um which i don't have time to deal with here but again we could pick that up afterwards if people needed to and thank you and with that i will and i think it's back to adam to talk about digital service regulation thanks tim and hi again everyone well the impact of the tca on digital services i think we can skip quite quickly through what the tca does for digital services in short summary not a lot that's going to make a day-to-day practical difference um it's focused more of the kind of country to country international treaty level about how law can and can't develop there's a key digital service though he serviced that it's not in scope of the tca at all though and that's audio visual audio visual services so all the planning over the last few years it's been undertaken by multi-territory broadcasters who'd previously been licensed in the uk by ofcom not planning to re-establish themselves in some way in the eu that's got to come into effect so to enable that broadcast and particularly the digital aspect of that broadcast to continue but picking up on the proposition that the tca is mostly about what the parties law needs to say there's a few points to call out in the tca there's a commitment to ensure cross-border data flows custom duties are prohibited um part that neither party can require prior authorization of digital services solely because it's provided online contracts have has to be the ability to conclude contracts by electronic means there's recognition of the importance of enhancing consumer trust so deceptive commercial practices for example need to be prohibited and users must be must have effective protection against unsolicited direct marketing one final point worth flagging the tca context is that there's been a lot of political discussion about this level playing field between the uk and the eu but there aren't any level playing field restrictions on digital regulation so regulatory freedom for the parties is not limited to that extent what i think is more important to think through there is what the tca doesn't do we've talked about cross-border country of origin elements not applying but those elements in the e-commerce directive no longer apply so for services established in the uk compliance with uk commerce laws won't be enough to give them passported access into the eu they'll be subject to and have to comply with the local laws on for example online information advertising shopping and contracting in each state of the destination one basic example of that is the german law obligation to provide certain information on a website when offering services in germany their so-called imprint law for non-eu companies such as those in the uk german law applies when they provide their website to german customers that law requires for example information on the website about the person who's authorized to represent the service provider that's normally the ceo an infringement of that you know sounds relatively minor requirement but it's a requirement that that constitutes an unfair practice which can be enforced by competitors or interested bodies under german law conversely the uk has for now unilaterally preserved the freedom of eu established services to continue operating in the uk without needing to comply with the additional uk requirements but the government has said that it intends to remove that country of origin principle from our legislation and bring it eea service providers into the scope of our law but let's think about what impact this all these principles may have in practice um let's assume that services are already compliant with uk and eu law and that they've any relevant local law divergences have always come out of the woodwork in my experience when when i'm helping services launch and operate across key markets um in the eu they're likely already to have taken some measure of local law advice in those key markets on things like consumer protection advertising regulation platform liability and so on consumers will still be able to see services in the countries where the customer the consumer is domiciled rather than where the service is established so the risk of local law impacts and multi-territory services exists already and is going to continue um that multi-territory advice that i mentioned is typically built around the harmonized eu position and then you know local input on how local implementation or practice deviates from it now the uk will will start to deviate more from the eu position that will that deviation will increase over time so it seems that the practice of obtaining multi-jurisdictional advice will need to continue but with more focus on the uk a quick note on the geo-blocking regulation that prevents services from discriminating between consumers based on their location although doesn't apply to media services for example that that no longer applies in the uk but for a uk service operating and selling services into the eu the services have still got to comply with the eu laws they can't discriminate for example between customers based in france compared to how they treat customers based in germany and final point on digital service regulation is that the tca is silent on intermediary defenses so both parties retain freedom to strengthen or weaken the immunities protections available to intermediaries such as host providers that's me done on digital service regulation i'm gonna flick on to james to pick up on vat james thanks adam um good afternoon everyone i'm just conscious of time so i'm just gonna skip ahead and dive straight into some discussion on digital services and vat now when we talk about digital services in the vat context what we're talking about are electronically supplied services so things like web hosting online supplies of music advertising space and website as well as radio and television broadcasting services and telecommunication services we're not talking about just everything which is dealt with online so if a lawyer advises via email that's not a digital service or a sale of goods online so we're really just focusing on things like electronically supplied services now the eu and also the uk have special rules to determine where digital services are treated as supplied and the reason you need to know where they're treated and supplied is that then governs which fats that are going to apply now the rule here is that digital services on b2c supplies um to consumers are treated as made where the consumer is located and the impact of this and this is a you know this is a rule we've had for a while um is that if you are a business providing digital services across europe potentially you would have to register vat in all of the different eu member states because you're treated as making supplies wherever your consumers are located because of that the eu has an optional um what's called the mini one-stop shop or moss and this is to help compliance obligations digital services and the way broadly it works is that as a business and this doesn't only apply to eu businesses any business worldwide can register under this you register under moss in one eu member state and then that allows you to report your sales effectively report the vat on all your sales across europe just in that one member state so it's a kind of simplification process now the impact of brexit on digital services and moss is that the uk you could previously have moss registration as you when the uk was a member state that's no longer available and this can have an impact not just on uk businesses but businesses outside europe and within europe so i've just put a um a table on the screen and just to kind of briefly chat you through that so if you're a europe business then you can no longer use your moss if you are providing services to uk consumers because the uk is now out of that system so if you're a european business providing digital services to uk consumers you're going to need a new uk bat registration for that on the flip side if you're a uk business you can't have this moss registration anymore so you've got a couple of options you can either get a new mos registration in an eu member state ireland might be popular for example or you can have separate registrations in each of the eu member states where you have consumers for non-uk non-european businesses so for example us business selling digital services to eu consumers if that business currently has a uk mos registration then again it won't be able to use that and so it's going to need to find a new jurisdiction in the eu to have its registration or have the separate registrations at the same time if that business if we take our example the us business is selling digital services uk consumers it's also now going to need a separate uk back registration to do that now a quick point on timing because there's some immediate action points coming out of that um if businesses are looking for a new model registration then they should be looking to do that by the 10th day of the month um effectively uh following their first sale so because of the way this interacts with um with the uk coming out that's generally going to be the 10th of february next month 10th of february 2021 if you want to do your registration so that's kind of the main impact um for digital services coming out of brexit there's nothing in the tta that kind of keeps the uk within the mos system now i've also included a bit on e-commerce because uh we're starting to see some kind of articles on this the big takeaway or the kind of the big new change because the uk is now so-called you know kind of free from the eu system the uk has brought in some new rules on goods entering the uk so-called low-value goods entering the uk from both europe and outside of europe and the key point here is where the goods are valued at 135 pounds or less and there's also some interaction between these rules and where goods are sold through an online marketplace so i just wanted to very quickly touch on those new rules now the key kind of the broad point here is that when you have overseas businesses selling goods into the uk and those goods are 135 pounds or less then the idea is that the uk is switching the tax collection point from the point of import to the point of sale what this means in practice is that actually potentially the seller is the one that's required to register the uk vat and account the uk vat to hmrc uk tax authority this doesn't necessarily um apply where you've got the the customer as a uk about registered business but certainly where you have consumers overseas businesses now need to be aware of these new rules now in terms of the interaction with online marketplaces where you have an online marketplace which is facilitating a sale from an overseas seller to a uk customer then the online marketplace itself can be deemed to make you making that supply for vat purposes meaning the online marketplace is the one that is potentially required to charge if the goods are already within the uk at the point of sale this is generally going to apply to b2c supplies if the goods are outside the uk at the point of sale then it's going to apply again potentially if those goods are 135 pounds or less so online marketplaces will now have additional compliance burdens they're going to need to monitor where the goods located at the point of sale they're going to um if those goods are outside the uk consider whether they are 135 pounds or less in value and they're also going to need to understand whether their customers are that registered so just to um bring that together in a in a in a case study how this potentially is going to impact businesses so let's say we've got a french business selling goods to customers in great britain i should have mentioned at the start the one point again also to be aware with all this is that northern ireland does have different rules for goods northern ireland is effectively staying within the eu that system as well so this example we're just looking at a french business selling goods to customers in england scotland and wales and let's say they sell those goods both directly to customers and via online marketplaces and let's say those goods are located in france the point of sale and the value is 135 pounds or less now if they're selling those goods directly to customers and they're selling them directly to customers that aren't about registered then that overseas seller is now going to be required to register the uk vat and start charging uk kt there's no threshold there so it's pretty much as soon as they start selling goods into the uk if they sell via the online marketplace then those goods being sold to uk consumers um leaving aside uk about richard businesses it's then the online marketplace that's required to charge the vat so essentially if if this french business just didn't want to register for the uk vat and have those obligations it would need to sell exclusively through the online marketplace i hope that's been helpful as a quick counter through um the key changes coming in for digital services and e-commerce and with that i'm going to have over some discussion on ip thanks very much um and again conscious of time i'll i'll try and battle through fairly quickly the first point to note on ip is that is that the tca itself doesn't give rise to any immediate practical impacts so the uk and the eu both affirm their commitment to their existing international treaty obligations and the minimum standards set out in the tca for ip protection largely reflect existing uk and eu laws the tca does however allow potential for future divergence this is due to a mixture of the fact that it only provides for minimum standards it's silent in many areas and there are some areas where the parties have expressly reserved for themselves freedom to determine their own laws and those are interesting in particular in signaling areas of potential future divergence and one of these an important one is the exhaustion of ip rights both the uk and eu will be free to determine whether and under what conditions exhaustion will apply this is particularly interesting since the eu previously tried to commit the uk to a national or regional exhaustion regime and to maintaining the current eu position that exhaustion of copyright doesn't apply to digital content now the fact that this wasn't accepted by the uk doesn't necessarily mean that the uk government is planning to bring in a system of international exhaustion or extend exhaustion to digital content but it does mean that the uk is free to independently consider the economic and policy arguments for supporting a broader or a narrower regime the government will be consulting on exhaustion early this year and if this is something that's important to your business you may wish to consider contributing to that another general point to note is that the key provisions of the enforcement directive are included in the tca and this includes not only provisions around evidence and remedies but also the general principles that enforcement measures should not be unnecessarily complicated or costly should be effective proportionate and dissuasive and should avoid the creation of barriers to legitimate trade so whilst as adam mentioned the tca is silent on online intermediary liability the general principles that intermediaries often try and rely on in the face of ip claims about hosted content do remain applicable moving on now to copyright in particular there are a few areas of potential future divergence indicated in the tca first the agreement is silent on the types of work that can qualify for protection allowing potential for the uk and eu to develop different laws which might be relevant in particular to works by non-traditional authors the parties expressly have freedom to to determine different rules as to the term of protection for certain types of work and these include musical compositions with words works of joint authorship and audio visual works the only requirement is to copyright exceptions in the tca is that they comply with the burn three-step test i.e they're restricted to certain special cases do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of rights holders this allows the uk to adopt exceptions beyond those in the closed list provided in the infosoc directive including potentially by bringing back a public interest defense that was developed under common law of course any new exceptions will now need to comply with the three-step test and adam mentioned earlier that section 29 of the future relationship act may have the impact of directly amending certain uk laws and this is one example of that whereas previously the three-step test was not directly implemented in uk law now arguably it is as a result of section 29 the parties are also relatively free to set their own laws as to collective management of rights and while there are no immediate plans for the uk government to bring in any significant changes to copyright in these areas copyright laws will begin to diverge as early as this summer as the dsm directive is implemented in the eu thereby bringing in among other things the press publishers write and fair remuneration rights for authors and performers in eu member states but not in the uk with respect to trademarks and designs while brexit itself has a significant impact on brands the tca doesn't change very much the minimum standards of protection it sets reflect existing eu and uk laws of course one of the main impacts of brexit is that uk registered rights will no longer cover the uk and there are a number of practical consequences that flow from that given the time i won't propose to go through those today but the team here have prepared a really comprehensive checklist of actions that brand owners should be taking now and the url for that is on the slide finally very quickly on patents and trade secrets the tca doesn't affect the european passage convention and the minimum requirements for protection of trade secrets essentially mirror the provisions of the existing trade secrets directly and with that i will pass back onto conclude thanks yang thank you everyone else um i mentioned earlier how eu and uk law are about to diverge because of separate initiatives that each party are introducing over the next at least 18 months and we've apologies to those who are on our digital services act webinar just before christmas you've seen a version of this pipeline what i've done here is try to pull together the many pieces of legislation and proposals which are going to have a material impact on all digital services operating in europe over the next couple of years du yang's mentioned the digital single market copyright directive community force um i think in terms of how services interact with their users and their customers the digital content digital services directors and the omnibus directors which are coming into force january 2022 and may 2022 respectively are going to be absolutely um crucial and they create some material changes particularly the omnibus directive we're already helping clients plan for that implementation so um i think if if brexit itself weren't all complicated and daunting enough here's a nice thought on which to end um services that operate in the uk and eu i.e everyone pretty much will need to work out how they can play by those two sets of of similar rules but also very different regulatory regimes and whether it's possible to um find a common approach between them um that that's all we were going to cover so just leaves us to thank you all for joining us today i wish you all very best and you know keep all safe and and well in these difficult times and we look forward to speaking with you again soon and here's what we look like um before lockdown and uh we wish you we'll say wish you well and look forward to speaking soon and goodbye you