17/05/2019

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Brexit for in-house lawyers

(2019)

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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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