Edward Fennell’s LEGAL DIARY
Diary news plus insights, commentary and appointments from the legal world
June 2 2023
Editorial contact: fennell.edward@yahoo.com
SHORT THOUGHT on the Unified Patent Court in English
The central division of the Unified Patent Court in Munich – it could have been us!
There have been many salutary moments in the past four years when the reality of no longer being part of the EU have come home. The most recent arrived this week when the Unified Patent Court finally opened its doors across the member states but with its two central bases in Paris and Munich. Had the vote gone a different way back in 2016 London would surely have made up the trio – or even reigned supreme.
The irony of it comes in the Court’s official names. Go to the website – address below – and there you will find ‘Unified Patent Court – Einheitliches Patentgevicht – Juridiction Unificee du Brevet.’
Had it not been for our Irish cousins would English have even featured in the title?
The power of English law internationally goes on. But not, as singer Harry Styles might chant, As it Was.
The LegalDiarist
In this week’s edition
+ LEGAL DIARY OF THE WEEK
– What’s will come out of the Cupboard at ITV?
– Arbitration Conference Brings Together Delhi and London
– Not Quite the European Song Contest (But Close)
– ESG Bible Now Available
LEGAL COMMENT OF THE WEEK
on inheritance tax, the Russian sanctions regime and humanists being appointed to SACREs
APPOINTMENT OF THE WEEK
at Ashfords
LEGAL DIARY OF THE WEEK
What’s will come out of the Cupboard at ITV?
Does anyone know a good lawyer? Image courtesy of the BBC
Forget about war in Ukraine and the near-miss on a financial default by the US government, the news agenda this week has been led by the retirement of a day-time TV presenter who used to present, in his prime, interviews from ‘In the Broom Cupboard’. Unsurprisingly the lawyers are now getting involved in the Schofield affair and, maybe, adding some ballast to the story’s substance. The appointment of Jane Mulcahy KC to “carry out an external review to establish the facts” may establish whether the whole thing is just showbiz froth or a matter of wider legal significance to employers, potential perpetaratos and victims alike.
“ITV’s letter to the Culture Secretary on this matter uses carefully selected phrases such as ‘reasonable and proportionate’ to describe their initial investigation into the rumours back in 2019/20,” comments Hina Belitz, Partner and employment law specialist at Excello Law. “This phrase mirrors the requirements of the Equality Act, under which an employer is only obliged to do what is reasonable when facing vicarious liability, in other words, a claim which makes them responsible for the acts of an employee. Any organisation setting themselves up to defend themselves will aim to present Schofield as a ‘rotten apple’, acting without authority and even ‘outside the scope’ of his employment.”
From the police to the House of Commons to the CBI those ‘rotten apples’ keep on being exposed right now. Getting rid of them, however, also poses its problems. As Hina Belitz points out, “If, as Schofield now makes clear, the affair with this younger individual was consensual and legal, and the reasons behind his covering it up are linked to his own issues with sexuality (a protected characteristic under the Equality Act), Schofield may later argue being sacked or forced out by ITV is a form of discrimination or unfair dismissal.”
The balancing out of these conflicting rights and obligations might bestow on this case more significance than some of us initially thought.
Arbitration Conference Brings Together Delhi and London
It will be an important day for Anglo-Indian legal relationships on Monday when the inaugural session opens at the Savoy of the Indo-UK arbitration Conference. The conference has been organised by the Indian Council of Arbitration (FICCI’s arbitration arm) and Justice Hima Kohli (sitting judge of the Supreme Court of India) will give a special address to the event. Meanwhile the ubiquitous Chair of the Bar, Nick Vineall KC will be part of a panel discussing the significance of the opening of the Indian legal market. Alongside him will be, among others, Ben Giaretta, Head of Dispute Resolution at Fox Williams and Tejas Karia, Partner Head of Arbitration at Shardul Amarchand Mangaldas & Co, New Delhi.
Another big topic is ‘NAVIGATING THE ENFORCEMENT PROCESS FOR INTERNATIONAL ARBITRAL AWARDS IN THE UK & INDIA’ with contributions from Dipen Sabharwal KC, Partner White & Case, London Dr. Chintan Chandrachud ofBrick Court Chambers and Sanjeev Kapoor, Partner Dispute Resolution at Khaitan & Co & Vice – President of the ICC International Court of Arbitration, New Delhi. All in all a pretty powerful line-up.
Not Quite the European Song Contest (But Close)
The Chambers Europe Awards were handed out at the end of last week and, as ever, one was just astounded by the scale of the whole event – so many countries, so many categories, so many shortlisted firms and, one might say, so few winners.
To ensure that plus ça change we took a look at the French category and, true to form, Gide triumphed as the ‘France Law Firm of the Year.’ As the firm commented, with characteristic French modesty, “It reaffirms Gide’s positioning among the world’s leading law firms.” And, of course that is true. Even more significant, maybe , is that Gide is a member of the European Network alongside Chiomenti (Italy) Cuatrecasas (Spain) and Gleiss Lutz (Germany). Chiomenti won the Italian award and Cuatrecasas was shortlisted for the Spanish award. So what happened to Gleiss Lutz? Not much by the look of it. It may have been forgotten, of course, that back in the mists of time Gleiss Lutz was in a cosy association with Herbert Smith (as was). They were winners then.
Meanwhile, out of curiosity, we also ploughed through the entries for the pan-European Pro Bono award. Astonishingly of the ten ‘finalists’ from across the continent no less than three were from Ireland! The Netherlands, Lithuania, Portugal, Spain, Netherlands, the Czech Republic (and oddly enough the UK) all had one representative but little Ireland out-pro bonoed them all! The winner was Matheson for its ‘real world’ impact, from supporting refugees to children from lower socio-economic backgrounds. Fair enough.
ESG Bible Now Out
Keeping up with all the new regulatory demands around ESG standrds is becoming an increasingly difficult job so there is likely to be a wide welcome for Sustainable Fitch’s new downloadable Excel tool the ESG Regulations and Reporting Standards Tracker which ‘aims to bring clarity on the fast-evolving ESG regulatory environment’. Alongside that there is also a report themselves ESG Regulations and Reporting Standards Tracker – May 2023 Highlights which does what it says in the title.
Strikingly this year some of the most notable updates since January include progress made on taxonomies in Brazil, Mexico, the ASEAN region, and the EU. “Taxonomies are increasingly covering the aspect of transition, with some notable differences in approach to certain activities, including coal phase-out timelines, and carbon capture and storage,” comments Sustainable Fitch.
“Our tracker aims to bring clarity on the fast-evolving and complex regulatory environment in the ESG space,” it continues. “It monitors Sustainable Taxonomies, ESG Corporate Disclosures, Climate-related Corporate Disclosures, and ESG Fund Requirements and Disclosures. It also tracks the most important ESG disclosure standards and their progress. In this first report, we explore the latest updates in ESG regulations, the everexpansion of Taxonomies and mandatory climate-related disclosures, and the noticeable rise in fund ESG regulations.”
Exhausting – but for anyone advising on ESG this looks like required reading.
LEGAL COMMENT OF THE WEEK
TOPIC: The demand by Conservative MPs that Prime Minister Rishi Sunak should scrap inheritance tax
COMMENT BY: Sarah Ben-Tarifite, private client legal director at Shakespeare Martineau
“Inheritance tax has long been a topic of debate and controversy. [Yesterday] more than 50 Conservative MPs have demanded that Rishi Sunak scraps what they are calling the ‘morally-wrong’ inheritance tax.
“Between April 2022 and March 2023, HMRC raised £7.1 billion from inheritance tax, according to recent government figures – an increase of more than £1 billion from the previous financial year.
“Public opinion on inheritance tax varies greatly and the discussion surrounding it often involves a delicate balance between generating tax revenue and the individual’s freedom to pass wealth to future generations.
“Finding the right approach that achieves a fair and effective taxation system remains a challenge for policymakers.”
TOPIC: The Russian Sanctions regime
COMMENT BY: Henna Elahi, Senior Solicitor, Zaiwalla & Co
“Since 2019 when the UK, and other jurisdictions, imposed sanctions on Russia, it has been difficult to understand what is and is not allowed in respect of dealing with funds or other economic resources belonging to or connected to a sanctioned person or company. This has led to confusion as to what actions business or individuals can take to recover debts or complete contracts involving those who are the subject of economic and other sanctions.”
TOPIC: Last week’s landmark judgment in the High Court by Mr Justice Constable that it was ‘unlawful’ for Kent County Council to refuse an application for membership of the Standing Advisory Council on Religious Education (SACRE) by Steve Bowen, theChair of Kent Humanists
COMMENT BY: Dan Rosenberg of Simpson Millar LLP, who represented Steve Bowen
‘This is a very positive decision. The Court has agreed with our client’s point, in that to read the legislation compatibly with the Human Rights Act, membership of Group A of a SACRE can extend to those with non-religious worldviews such as humanism, and membership of that group is not just limited to those representing religions.
‘Given non-religious worldviews such as humanism are now part of the RE curriculum, children can only benefit from having someone who holds those views being able to add their expertise and experience in the room when discussions are had about how to teach it.’
LEGAL APPOINTMENT OF THE WEEK
ASHURST
Sunny Kumar (above) has been appointed by Ashurst as a partner in the Digital Economy team of the firm’s London corporate practice and the UK head of IP.
With previous experience working in-house within the BBC’s IP transactions team Kumar has wide-ranging expertise advising on IP matters across the financial services, technology, life sciences and media sectors. These have involved working on complex ‘IP rich’ transactions and managing large trade mark portfolios.
“In a world characterised by the ever-increasing speed of digital transformation, IP can only be of increasing importance, it is a key driver of projects and corporate transactions — particularly in Tech M&A,” said Nick Elverston, global co-head of Ashurst’s Digital Economy practice, “We are so pleased that Sunny is joining Ashurst, his insight and approach will be a valuable addition to our line-up.”
Kumar added, “Ashurst’s global footprint and its stellar reputation for work in the digital economy means it is the right platform to continue to develop my IP practice.”
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