Commercial Update - May 2017

Large companies and large LLPs are now required to report on their payment practices and policies for financial years beginning on or after 6 April 2017.

The detailed drafting of an indemnity was analysed in a case which highlights the importance of structuring clauses carefully and the potential benefits of using sub-clauses to make the parties’ intentions clear. In Wood v Capita Insurance Services Ltd, the Supreme Court has observed that textual analysis and consideration of the factual matrix are not “conflicting paradigms” and can both be used as tools in the field of contractual interpretation.

In Associated British Ports v Tata Steel UK Ltd, the High Court ruled that a clause allowing the terms of a 25 year port licence agreement to be renegotiated in certain circumstances was not void for uncertainty. The decision highlights the approach of the courts to give effect to the intention of the parties in commercial contracts whenever possible, particularly in cases where the contract has been substantially or partially performed.

Asymmetric jurisdiction clauses are those which restrict one party to a contract to where it can bring court proceedings, but not the other party. There is some concern about whether EU member states will recognise asymmetric jurisdiction clauses but in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc and another, the High Court has provided a welcome decision that such a clause was effective.

The UK’s Culture Secretary recently launched a new Digital Strategy, which intends to create a world-leading digital economy that works for everyone.  Businesses have played an important role developing the strategy which contains a number of key announcements.

The Digital Economy Bill has received Royal Assent and will become the Digital Economy Act 2017. A lone provision within the Bill provides a statutory footing for a new direct marketing code, which appears intended to supplement the Data Protection Act 1998. We take a further look at this provision and provide links to a synopsis of the content of the Bill as a whole, as well as our own overview of the General Data Protection Regulation.

The Minister of State for Digital and Culture, Matt Hancock, has discussed the importance of ensuring unhindered data flows between the UK and EU post-Brexit, but stopped short of saying whether the UK would seek an adequacy decision or try to achieve this by other means.

The ICO has published its second piece of draft guidance on the new General Data Protection Regulation, this time on consents.

The Information Commissioner’s Office highlights data protection considerations arising out of the updated confidentiality guidance.

The Competition and Markets Authority (CMA) stepped up its enforcement activity significantly in 2016, and its annual plan for 2017/18 indicates that it will continue to do so.

On 30 March, the Court of Justice of the European Union heard a case relating to a dispute in Germany between a luxury perfumer, Coty, and one of its distributors, regarding the legality of preventing members of a selective distribution system from selling on an internet marketplace such as eBay or Amazon.

The Competition and Markets Authority (CMA) has decided not to open a formal investigation into BMW UK following an initial assessment and BMW’s subsequent decision to reverse its policy of preventing its dealers from listing BMW and MINI vehicles on online car portals.  The online car portal carwow, which links customers with dealers for the purchase of vehicles, had asked the CMA to investigate whether BMW’s policy amounted to an infringement of competition law.

The European Franchise Federation has implemented changes to the European Code of Ethics for Franchising with the aim of setting the standard for, and of promoting, good and ethical franchising across Europe.

The Committee of Advertising Practice (CAP) has published guidance on the requirement to include significant terms and conditions upfront in initial marketing material for promotions.

The Committee of Advertising Practice (CAP) has published a new rule relating to the advertising of electronic cigarettes.

The Committee of Advertising Practice (CAP) recently issued guidance to clarify the CAP Code’s application to online ‘affiliate marketing’, whereby an affiliate is rewarded by a business for each new customer attracted by their marketing efforts, usually with a pre-agreed commission.

The Committee of Advertising Practice (CAP) has published a set of Q&As which clarify the rules banning the advertising of high fat, salt or sugar (HFSS) food or drink products in children’s media which are to come into force on 1 July 2017.

In July, the S&B Commercial team will be hosting the Chartered Institute Marketing (CIM) seminar on legal issues relating to marketing. The S&B team will be discussing recent developments in the industry, including the General Data Protection Regulation and ePrivacy Regulation. Find out more HERE.