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17/05/2019
1
Brexit for in-house lawyers
(2019)
30th May 2019Before viewing this webinar, please visit www.lexiswebinars.co.uk/test-your-system to ensure that your network and PC are configured correctly.
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LexisNexis® Confidential 2
The law as stated during this webinar is
up to date as of 16th May 2019
Brexit for in-house lawyers
(2019)
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Introduction
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Senior Counsel
Hitachi Vantara Limited
Hui Min Langridge
Clare Francis
Partner
Pinsent Masons LLP
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Your speakers
Hui “Min” Langridge
Senior Legal Counsel
Big Data, Data Analytics and IoT Division
www.linkedin.com/in/huiminlangridge/
Clare Francis
Partner, Pinsent Masons
Head of Brexit Advisory
uk.linkedin.com/in/clare-francis-aaa4414
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Agenda
• The Brexit journey…to May 2019
• Brexit issues for in-house teams
o Workforce
o Supply chain
o Customer contracts
o Exchange rates, tariffs and customs
o Structuring
o Compliance – IP, data and passporting
• Contingency planning
• What’s next?
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The Brexit journey
� Negotiation
� EU/UK Agreement
x UK Parliament Vote(Thrice rejected: 15/1, 12/3, 29/3)
x UK Implementation
x UK Ratification
x European Parliament vote
x UK Exit
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A flextension…
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Key issues: Workforce
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Key issues: Workforce – supporting your employees
• Brexit has created concern and uncertainty for employees.
• The government has announced that the Settled Status public testing is to be opened to all EU nationals with a passport and their family members (including non EEA family who hold a BRP).
• The scheme opened on 21 January 2019, for all EU nationals holding biometric passports. Earlier than anticipated.
• Application is via a mobile phone App – note Android only! Consider making one available to staff?
• £65 fee waived by UK Govt since Mon 21 January.
• Encourage all eligible employees to take advantage as early as possible.
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Key issues: What will Brexit mean to the supply chain?
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Key issues: Supply chain disruption
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Key issues: Contracts
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Key issues: Exchange rates, tariffs and customs
• Assess financial implications of new tariffs/customs duties
• Ensure there is sufficient resource to make customs declarations and register for EORI number
• Quantify exposure to currency fluctuation and risk to profitability
• Consider reviewing contracts to provide for exchange rate fluctuations
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Key issues: Structuring – moving of headquarters from UK to the EU
• Pertinent for UK firms with UK headquarters with access to EU markets –financial services, manufacturing etc
• Brexit: UK having “third country status”
• Examples: Panasonic, Sony, Nomura
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Key issues: Compliance – Intellectual property
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Key issues: Compliance – Intellectual property
Steps to take now
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Key issues: Compliance – Data Protection (1)
• Main impact of Brexit: transfer of cross border transfer of personal data between the UK and the EEA
• If a Withdrawal Agreement is entered into, during the transition period:
a) GPDR will continue to apply as if the UK: Member State
b) No impact on cross border transfers between UK and EEA
c) ICO will no longer:
o be part of the “one stop shop” nor the EDPB
o be able to approve transfer mechanisms
d) UK and the EEA will work on adequacy decision
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Key issues: Compliance – Data Protection (2)
• No deal scenario:
a) UK will be a third country for GDPR purposes unless an adequacy decision is
reached
b) Flow of data from the EEA to the UK restricted unless adequate safeguards
are in place:
o binding corporate rules
o standard contractual clauses
c) Flow of data from the UK to the EEA: unaffected.
d) Flow of data from UK to non EEA countries:
Unclear whether UK will be able to rely on EU safeguards i.e. Privacy Shield
• Consider EU/UK representative
• Update policies and impact assessments
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Key issues: Compliance - Passporting
• End to passporting rights in their current form in the case of no-deal
• FCA temporary permissions regime as a ‘backstop’ to minimise disruption in no-deal scenario
• EEA firms to seek PRA authorisation at the end of the implementation period in the case of an orderly Brexit
• The risk for firms that continue business in the EU without proper regulatory cover post-Brexit risk committing an offence in the jurisdictions in which they operate
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Contingency planning for Brexit
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Contingency Planning: How do you plan for the impact of Brexit?
• Identify what the risk areas are for your business
• The risk areas will depend on the nature of your business
• EU Exit guidance available here:
o https://www.gov.uk/prepare-business-uk-leaving-eu
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Contingency Planning: Case study on Brexit preparation
• Our business: supply of hardware/software/tech solutions/associated services
• We worked on a Brexit risk verification exercise – covered:
o trade and customs duties
o HR/migration
o currency volatility
o tax
o Contracts
o IPR
• Prepared with no deal/facilitated customs arrangement in mind
• Proposed mitigation actions – stockpiling, moving headquarters, adopted communications strategies
• Need to know when to push the button on “no deal” Brexit
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What next?
Most businesses now either prepared - or not. Use the next 6 months as an opportunity:
a) Consider lessons learnt from no deal planning
b) Consider what opportunities that the business might be able to access
c) Consider scope to seek competitive advantage over those less prepared
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Upcoming In-House Counsel webinars
• Demonstrating the ROI of your department (2019) – 27th June 2019
• Cyber security for in-house lawyers (2019) – 26th September 2019
• Providing career progression for in-house lawyers (2019) – 24th October 2019
• TMT: Issues and trends for in-house lawyers (2019) – 21st November 2019
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On demand In-House Counsel webinars
• Planning for the GDPR - Available until 5th March 2020
• Right to work and immigration issues – Available until 4th June 2020
• Working with procurement: update and practical issues – Available until 4th July 2020
• Developments in commercial contracts – Available until 24th July 2020
• Anti-trust and competition: including cartels and investigations, recent case law
developments, litigation and class actions, and mergers – Available until 24th
September 2020
• Disputes update: a round-up of recent decisions, including directors’ duties,
contractual interpretation, privilege and vicarious liability – Available until 22nd
October 2020
• The Criminal Finances Act 2017 – one year on, and linking this to the increasing profile
of ‘tax assurance’ on the Board Agenda – Available until 23rd November 2020
• Use of technology in-house (2019) – Available until 7th February 2021
• General counsel as a business partner (2019) – Available until 7th March 2021
• Financial services: issues and trends for in-house lawyers (2019) – Available until 2nd
May 2021
• Brexit for in-house lawyers (2019) – Available until 30th May 2021
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Thank you and reminders
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