Governance: Bribery Act 2010: post-legislative scrutiny

On 14 March 2019, the House of Lords Select Committee on the Bribery Act 2010 published its ‘Report of Session 2017-2019 The Bribery Act 2010: post-legislative scrutiny’ as to whether the Act is achieving its intended purposes.  The Select Committee was appointed by the House of Lords on 17 May 2018 to consider and report on the Bribery Act 2010.  The Act received Royal Assent on 8 April 2010 and came into force on 1 July 2011. In its principal conclusions and overall assessment, the report states that ‘the Act is an excellent piece of legislation which creates offences which are clear and all-embracing’, and the new offence of corporate failure to prevent bribery is regarded as ‘particularly effective’.  The report reviews the legislation and makes certain recommendations. The report highlights that the ‘Ministry of Justice Guidance’ (guidance), published under s.9 of the Act,  is less successful in providing SMEs with the information to assist them with adopting a formal anti-bribery policy, and could provide companies considering exporting with more assistance on the point at which hospitality would begin to influence the recipient’s course of action.   It is recommended that the guidance makes it clear that businesses need to conduct risk assessments, and provide staff training on procedures (see paragraph 194).  It is also recommended that the Secretary of State Read Full Article…

Procurement: Equal treatment and previous participation

In Case T 10/17 Proof IT SIA v EIGE (16 October 2018), the question of applying the principle of equal treatment was considered when an incumbent service provider participated in a tender exercise for the re-procurement of online services.  The incumbent was awarded the contract.  However, another bidder, Proof IT SIA, established in Riga, Latvia, (the ‘company’) brought a claim against the contracting authority, the European Institute for Gender Equality (EIGE).  The company sought an annulment of EIGE’s decision to reject its tender and the awarding of the contract to the incumbent.  The company also sought damages for loss of opportunity.   The contract was to be awarded on the conventional basis of the ‘most economically advantageous’ offer based on a quality and price ratio – the tender specification set out the award criteria and their weighting.  The company argued that there were imprecise award criteria, and a lack of transparency, which had the effect of conferring on EIGE an unrestricted freedom of choice.  This, the company argued, contravened the principles of transparency and equal treatment.  The company further argued that EIGE had committed manifest errors of assessment, and if these were to be corrected the result would be that the company would be the successful tenderer.  It was also alleged that the principle of equal treatment was breached in such Read Full Article…

Commercial agreements: The scope of an ‘entire agreement’ clause

Our June 2018 Newsletter reported on the case of NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch). It concerned the acquisition by the claimant of the shares of Nottingham Forest Football Club Limited from the defendants.  This judgment concerned a claim for statutory misrepresentation pursuant to section 2(1) of the Misrepresentation Act 1967.  The defendants argued that this claim should be struck out as it was precluded by an ‘entire agreement’ clause set out in the share purchase agreement (SPA).  As we reported previously, the court agreed that it was not the intention of the parties to address outwith the contractual structures, claims arising out of the SPA (such as the statutory misrepresentation claim). This judgment has been overturned on appeal, however, in the case of Al-Hasawi v Nottingham Forest Football Club Ltd and others [2018] EWHC 2884.  The judge noted that it may have made commercial sense for the parties to have excluded claims for statutory misrepresentation, but he held that the entire agreement clause was not effective to achieve this.  To hold otherwise would be to improve the bargain that the parties had made.  Although the contract did provide for certain contractual remedies, the court held that the existence of specific remedies could not lead to the inference that all Read Full Article…

Charity: Code of Fundraising Practice

On 7 September 2018, the Fundraising Regulator announced a Consultation on the Fundraising Code. The consultation concentrates on the style, presentation, clarity and accessibility of the code. The code together with the rulebooks for street, door-to-door and private site fundraising, outline the standards expected of all charitable fundraising organisations across the UK. The intention is to enable fundraisers to use and understand the code confidently and with ease to ensure compliance. Existing feedback indicates that the code could benefit from a thorough review to deal with the following matters: • Clarify the purpose of the code and to whom it applies • Ensure the language of the rules is clear and consistent • Define key terms used in the code to ensure there is a consistent understanding • Review the order of the code, identify gaps, and strengthen cross-referencing with relevant guidance • Avoid repetition between rules and reduce the number of sections • Emphasise more clearly the importance of general rules that apply to all fundraisers as well as those that only apply to specific forms of fundraising • Provide closer links with case studies and good practice examples • Clarify which parts of the code are applicable across the different legal jurisdictions of England, Wales, Scotland and Northern Ireland, particularly in regard to the proposed changes • Bring Read Full Article…

Employment: Pension and gender change certification requirements

The European Court of Justice (ECJ) has held that, in requiring a transgender person to annul their marriage, entered into before changing gender, in order to be entitled to a state retirement pension (SRP) at the statutory pensionable age provided for those of the acquired gender, UK legislation gave rise to direct sex discrimination, contrary to EU law. The case, MB v Secretary of State for Work and Pensions (Case C‑451/16) EU:C: 2018:492 had been referred to the ECJ by the UK Supreme Court.   Under section 4(2) of the Gender Recognition Act 2004 (GRA) as it stood during the period at issue in the main proceedings, an unmarried applicant who had fulfilled the requirements of section 2(1) and had provided medical evidence pursuant to section 3 was entitled to a full gender recognition certificate.  Under section 4(3), a married applicant was only entitled to an interim gender recognition certificate.  An interim gender recognition certificate provides grounds for a married applicant or their spouse to have the marriage annulled.  Under section 5(1), GRA, the court granting the decree of nullity is required to issue a full gender recognition certificate.   Under paragraph 7 of schedule 5, GRA, which deals specifically with the effect of a full gender recognition certificate on SRP eligibility, once such a certificate is issued, any question Read Full Article…

IP/IT: UKIPO response to consultation on Trade Marks Directive 2015

The UK Intellectual Property Office (UKIPO) has published a response to its consultation on the implementation of the Trade Marks Directive 2015 (the Directive).  The consultation sought views on proposed wording of the  Trade Marks Regulations 2018 (the Regulations).  Further to the consultation, the Regulations have now been finalised and were laid before the UK parliament on 10 July 2018; however, they will not come into force until 14 January 2019.   The document summarises the responses received, none of which were submitted by UK HEIs, and outlines how the government intends to make the necessary amendments to UK law.  The most significant changes are:   Trade mark applications will no longer need to represent marks graphically.  The new requirement is that marks are represented in a ‘clear and precise manner’.  UKIPO has stated that it intends to facilitate the submission of applications ‘using the widest range of digital file formats that is technically possible with our current systems‘.  It is expected that relevant guidance will be published in the next few months.   Businesses will lose the ability to rely on the ‘own name’ defence against claims that they have infringed UK trade marks.  Currently, businesses can avoid liability for trade mark infringement if the trade mark concerned is for a word that matches their name, provided that their Read Full Article…