Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
17 January 2024
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT FOR THE WEEK:IT’S DORA’S DAY
Today the EU’s Digital Operational Resilience in the Financial Sector (DORA) regulation comes into force with scope across most regulated entities in the European financial sector. That includes credit institutions and insurers and certain third-party ICT service providers. Ideally it should make us all a little bit safer.
So while it might not lead the headlines in the popular press, today – as DORA’s Day – should be etched in the public’s mind as the date when business across Europe started to get a grip on the challenge of cyber security, information and communication technology (ICT).
“Now is a good time to take stock of what has been achieved in terms of implementation and assess what more needs to be done to achieve compliance,” said Andreas Carney, a technology and financial services sourcing expert at Pinsent Masons. “The application of DORA from today will no doubt draw it into sharper focus for regulators – they will be interested in the level of compliance that has been achieved.”
So it’s time to comply – immediately. Do it for DORA.
The LegalDiarist
In this edition
+ LEGAL DIARY OF THE WEEK
Hard Sell for CLLS job
Birketts Backs Bid to Bin Modern Slavery
Lawyers’ Sustainability Capability
Who Asks the Questions Round Here?
+ CONTRIBUTED ARTICLE OF THE WEEK
DEVELOPMENTS IN ESG, BUSINESS and HUMAN RIGHTS by Sarah Ellington and Lauren Satill
+ LEGAL COMMENT OF THE WEEK
on Apple & AI, renters’ rights, freedom of speech and right of bereavement.
+ APPOINTMENTS OF THE WEEK
at Jenner and Block and Faegre Drinker
LEGAL DIARY OF THE WEEK
Hard Sell for CLLS job?
Now here’s a scrunchy kind of job – the City of London Law Society (CLLS) is searching for its next Chief Executive. ‘Herding cats’ is the clichéd description for running a lively law firm but trying speak for or co-ordinate the legal community across one of the world’s largest and most powerful legal centres must be a ‘white knuckle ride’ of a challenge.
This is the official description. ‘The CEO is accountable to the main Committee for the overall success of the CLLS in (i) maintaining and growing its influential voice in all the key areas of its operations; (ii) increasing its membership; (iii) representing its members effectively on issues facing the profession in the City; and (iv) ensuring the CLLS’s vision is kept up to date and aligned with the challenges facing City law firms.’
There is a total of eleven key responsibilities which should keep anyone busy 24/7 with no time off for holidays. But the one which is clearly most challenging is to ‘Develop positive relationships with other stakeholders including industry bodies, Regulators, Parliament, Government, and media; to promote the CLLS as a trusted conduit between City firms and Westminster/Whitehall, and as appropriate to help the Society to foster good international relationships’
Frankly given the wonkiness of this Government where would one start? Anyway if it tickles your fancy contact colin.passmore@clls.org for an informal discussion. And if you wish to be formally considered, then send your CV and a letter of application to liz.thomas@clls.org.
Birketts Backs Bid to Bin Modern Slavery
While Theresa May might have left a mixed legacy as Prime Minister the one area in which she undoubtedly made her mark was the fight against modern slavery. So she was a good pick to give the keynote speech this week at the Business Conference convened by David Way, the High Sheriff of Cambridgeshire, to discuss a Cambridgeshire and Peterborough-wide modern day slavery Charter.
Hosted by law firm Birketts, the event brought together an impressive array of speakers including Caroline Haughey OBE KC who is regarded as one of the top legal experts in human trafficking and modern slavery in the UK. Also on board were Sarah Woodcock, CEO of the Anti Slavery Collective and Nick Dean, Chief Constable of the Cambridgeshire Police. A Charter Committee has now been set up to drive forward the initiative and the aim is for Cambridgeshire to become the first county to be free of modern day slavery (estimated to affect approximately 100,000 in the UK).
“Modern Slavery is the pandemic of our generation – something which we believed to have been abolished 200 years ago,” Caroline Haughey. “The desire and drive of the Cambridgeshire and Peterborough businesses and organisations who attended the event reflected a desire on their part to lead by example and demonstrated that good employment practice, an understanding of the who’s, what’s and whys of this offending and sharing of information does not undermine business success but rather enhances it. A Cambridgeshire and Peterborough-wide charter crafted by the participants reflected the determination that modern slavery will not be tolerated.”
Jonathan Agar, Chief Executive of Birketts, added, “The UK has come a long way in tackling modern day slavery, and we were fortunate enough to hear from some of the architects of those efforts on Wednesday. The concept of a Cambridgeshire and Peterborough-wide Charter is the next step in dealing with this very serious issue.”
Lawyers’ Sustainability Capability
As enthusiasm for IED starts to decline in the USA are we likely to see the shine wear off sustainability objectives as well? With news reports about highest ever temperatures now on ‘repeat’ are people – even in law firms – starting to falter?
Well, not so much falter but, maybe, there is a lessening in morale and commitment. A recent report commissioned by Greenarc (a consultancy on carbon reduction progression) surveyed 100 employees working in the UK legal sector. The results showed that while 54% of firms said that they had a greater focus on sustainability initiatives than three years ago this was by no means top of their list of priorities. More tellingly , perhaps, many of the staff responsible for delivering their firms’ sustainability plans lack confidence in their ability to achieve them. And while 78% of firms have appointed individuals to lead their green initiatives just 38% of these ‘sustainability champions’ believe they had the complete knowledge they need to fulfil their roles effectively.
“While the data suggests a significant majority of law firms have clear sustainability goals, the lack of confidence among those implementing them is striking, “said Jonathan Simms, Partner at Clarion, “For me this highlights a need for upskilling, clearer frameworks, and external guidance to bridge the gap between strategy and execution. We know that our ESG activities and Net-Zero plan are important both for our employees, those looking for a career in the law, as well as our clients. Businesses want to ensure their legal suppliers, and supply chain in general, have a Net-Zero strategy in place – it is certainly a factor that organisations want to know we are addressing and have on our management agenda.”
Just for the record the top 5 priorities for UK law firms are:
- Cybersecurity (92%)
- Cost Management (81%)
- Digital Transformation (68%)
- Employee Wellbeing (67%)
- Workplace Equality, Diversity and Inclusion (64%)
But what about ‘quality of work’ – or, is that taken as a given?
Who Asks the Questions Round Here?
AI Lawyers – we knew they were coming to get us and now they are hammering at the gates. In some cases they have already broken through and are sitting in the C-suite.
Of course they could be benign. Take for example this week’s big name break-through – Robin AI whose product is Answer Types which boasts a feature that ‘turns contracts into structured data assets’. According to the company, “This innovation allows legal teams to extract precise, customisable insights from contracts at scale, saving up to 98% of the time traditionally spent on manual review. With Answer Types, companies can seamlessly share critical legal data across business units to uncover growth opportunities, mitigate risks, and gain competitive advantages.”
According to Richard Robinson, a former Clifford Chance lawyer and now AI CEO and co-founder of Robin, “This is the start of a monumental transformation in how legal teams operate.”
The ‘gospel according to Robin’ is pretty impressive. Through the deeper analysis which companies can now perform on their contracts, they have new ways to ‘grow revenue, manage risks, and identify competitive advantages… It allows legal teams to create structured data at scale, by importing data into popular software such as Microsoft Excel, and other Customer Relationship Management and Contract Lifecycle Management tools.
Lawyers can then set their preferred Answer Type for each question they ask of their contracts using Robin Reports, such as “text”, “number” or “date.”
“Users do not need to be prompt engineers,” they say reassuringly. “Answers Types guides users toward successful questions, allowing them to create a fully customizable report on their contracts.”
What will they think of next?
CONTRIBUTED ARTICLE OF THE WEEK
DEVELOPMENTS IN ESG, BUSINESS and HUMAN RIGHTS
by Sarah Ellington and Lauren Satill
(This is an abridged version of the original article)
The last few years have seen an acceleration in the “hardening” of soft-law or voluntary standards in the ESG space, bringing environmental and human rights considerations higher up the agenda for businesses and their legal teams. Different approaches across jurisdictions have created further challenges.
Whilst 2025 is likely to bring some further legislative developments and new disputes, it seems set to largely focus on (1) the practical implementation of already, or soon to be, in force legislation; (2) receiving decisions in key cases from both national and international courts and understanding the implications for business and state obligations; and (3) greater focus and guidance on responsible exit strategies.
Legislation
2025 will see the first implementation of some key legislation including reporting under the Corporate Sustainability Reporting Directive (“CSRD”) in the EU and the Climate-Related Financial Disclosures in Australia. Whilst it was set to apply from 30 December 2024, the EU Deforestation Regulation will now first apply on 30 December 2025.
These practical adjustments will also be evident in legislation yet to come into force. For example, significant work will be continuing ahead of first compliance under the CSDDD in 2027. The CSDDD’s upcoming draft transposition (the Netherlands got a head start on this in 2024) and the development of the EU Commission’s guidance will inform how companies approach preparation for compliance.
In the face of legislative changes highlighted above, other jurisdictions have chosen to refrain from implementing changes for the time being. In 2024 both the UK and Australia refused recommendations to introduce mandatory due diligence requirements, with the Australian government specifically noting that companies may already be subject to mandatory due diligence in other jurisdictions. Australia’s position was further validated only two weeks later (mid-December) when Canada announced its intention to introduce a new supply chain due diligence regime which will apply to international supply chains and will be supported by a new independent agency.
Likewise, whilst the EU passed its forced labour ban at the end of 2024, the UK rejected a recommendation by a House of Lords Committee to introduce a ban on the importation of goods produced by companies that use forced labour. This is despite the success of the World Uyghur Congress in convincing the UK Court of Appeal to quash the National Crime Agency’s (“NCA”) decision not to investigate whether a specific shipment of cotton goods imported from Xinjiang, China had been produced with forced labour, based on an error by the NCA in the interpretation of existing legislation. The decision was therefore remitted back to the NCA to be remade, using both the correct interpretation of legislation and other factors already outlined in their original decision letter.
Sarah Ellington is a Partner and Lauren Satill an Associate in the London Office of Watson Farley & Williams
LEGAL COMMENT OF THE WEEK
TOPIC: Apple’s decision to suspend a new artificial intelligence (AI) feature because of what are called repeated mistakes in its summaries of news headlines.
COMMENT BY: Iona Silverman, IP & Media Lawyer, Freeths
“This shows that AI really is still in its infancy, and that while the technology is constantly improving, we need to take care when using it. Apple’s technology could easily have written incorrect defamatory content which would have put them at risk of a very public lawsuit. Additionally, there is a very real risk of AI churning out content that infringes someone else’s intellectual property rights, as AI learns from content that is already out there. I have seen images created using innocuous prompts incorporating third party brands, which is an obvious no-no. The takeaway here is that businesses need to think carefully as they evolve their use of AI.”
TOPIC: The decision by Bridget Philippson, the Education Secretary, to revive the proposed legislation to protect freedom of speech in higher education
COMMENT BY: Hanna Basha, defamation partner, Payne Hicks Beach
“It is easy to support the esoteric noble endeavour of free speech for academics, but laws which do not properly protect individuals from hate speech, defamation and harassment will not create a place where students can thrive. In order for students to be able to excel in their academic endeavours and exercise their free speech rights the government will need to ensure that it does not go too far in eroding students’ rights to protection from unwarranted speech attacks.”
COMMENT BY: David Hardstaff, Partner, BCL Solicitors
“The announcement that the Education Secretary plans to resurrect parts of the Higher Education (Freedom of Speech) Act is a welcome counter to increasingly draconian criminal offences that have the potential to stifle free speech. Although the obvious relevance is in a university setting, the move by Labour equally signals an opportunity to rebalance the debate around free speech more widely. Lively debate shouldn’t be restricted to university campuses but should be something we all feel safe and free to engage in.”
TOPIC: A universal right of bereavement leave as a ‘time to grieve’ following early pregnancy loss.
COMMENT BY: Kevin Poulter, employment partner, Freeths
“You would hope employers provide support and care for employees experiencing such trauma, but in the absence of any minimum requirements being in place, as is the current position, employees must rely on goodwill and, where there is associated physical and/or mental illness, the support of their GP to provide fit notes.”
TOPIC: The implications for the courts following the passage of the Renter’s Rights Bill into law
COMMENT BY: Gary Scott, property dispute resolution partner, Spector Constant & Williams
“The legislation will be a seismic change in how tenancies operate and a huge increase in regulation of landlords in the private rented sector. There is a massively increased role for regulation by local authorities and a hefty increase in the level of fines they can issue. Landlords who inadvertently or deliberately breach regulations, can be fined up to £40,000 without a tribunal or court determination.
“The committee stages of the passage of this bill has made clear that the government has no intention of properly resourcing the courts and tribunal to deal with the inevitable influx of claims and additionally required court time in dealing with disputes over rent increases and possession. The Minister said that the government would ‘continue to work with’ the courts and tribunals to ensure they have capacity, but refused to be drawn into a formal assessment of what increase in claims can be expected or a review as to how that increase will be dealt with and managed within the court or tribunal system. The Minister instead relied on the unevidenced assumption that tenants would only resort to tribunals or courts as a last resort, rather than to secure a negotiating advantage or a delay in the implementation of a rent increase.
“The reality for court users, especially in County Courts in London and busy regional courts, is that the court is already struggling to deal with its existing workload, with applications and correspondence taking around 20 weeks to deal with. Possession claims can take more than four or five months to get a possession order. A year or more can have passed without a landlord receiving rent before a non-paying tenant is evicted. Adding to that workload burden without funding modernisation or increasing capacity is inviting significant problems ahead.”
APPOINTMENTS OF THE WEEK
Jenner & Block LLP
Joanna Ludlam will be joining the London office of Jenner & Block LLP later this month where she will co-chair the firm’s Investigations Department and launch its London Public Law and Crisis Management Practice.
Previously with an Am Law 100 top 10 firm Ludlam has played a key role in some of the United Kingdom’s most high-profile public inquiries and judicial review cases which have had the effect of changing the direction of government policy. Included among these are challenging government policies over the UK-Rwanda Asylum Partnership, and the unlawful prorogation of Parliament ahead of the UK’s departure from the European Union. She has also advised clients in major UK public inquiries, including the Post Office Horizon Inquiry, the Independent Inquiry into Child Sexual Abuse, the Leveson Inquiry into the practices of the British press, the Covid-19 Inquiry, and the Infected Blood Inquiry.
“Joanna is well-known and highly regarded across the London market and more globally. Her impressive track record in investigations and crisis management, along with her vast experience in regulatory and public law, adds both depth and strength to our growing London office,” said London Office Managing Partner Christine Braamskamp.
FAEGRE DRINKER
Jeremy Andrews has joined Faegre Drinker as a business litigation partner in London. Previously with DLA Piper, Andrews is an active member of the Commercial Fraud Lawyers’ Association and the London Solicitors’ Litigation Association and focuses his practice on cross-border litigation and international arbitration. He has served clients in a variety of industries, including in banking, manufacturing, health care and natural resources.
Across his 25 years’ experience, Andrews has undertaken work in a number of high profile cases including acting for trustees in a $1 billion lawsuit relating to the Madoff fraud. This covered claw-back claims brought in the U.S. and English courts by the Securities Investor Protection Act-appointed Madoff trustee.
“Jeremy’s experience in handling complex corporate matters for international clients is second-to-none,” said business litigation team leader William Connolly. “His background in representing clients in high-demand industries such as health care and manufacturing make him a great fit for our international litigation team, and we are excited to have him on board.”
We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.
And please continue sending your ‘Diary-type’ stories, insights, legal comment and appointments to fennell.edward@yahoo.com