LloydLaw LLP

New requirements for derivatives

Regulatory technical standards (RTS) providing detailed requirements relating to the European Market Infrastructure Regulation (EMIR) were published in the Official Journal of the European Union on Saturday 23 February 2013. They will come into force 20 days after publication (i.e. on 15 March 2013) and will have direct application in each member state, including the UK, without the need for local legislation. EMIR has already been in force since 16 August 2012, and certain implementing provisions (ITS) came into force on 10 January 2013. However, many provisions of the main regulation required further detailed provisions to be specified before they could be fully implemented.

 

The RTS deal with the bulk of the outstanding detail, ranging from the contents of reports on derivative transactions and requirements relating to the governance and operation of central clearing houses to risk mitigation procedures for non-cleared OTC derivatives. Whilst there are provisions dealing with the phasing-in of some of the key requirements for fund managers and their client, some of the requirements, for instance the new requirements relating to timely confirmation of non-cleared OTC trades, come into effect straight away. The lack of a transitional period for these provisions was one of the key concerns raised by the European Parliament in a draft motion which would have delayed the passage of a number of the RTS had it not been withdrawn on 7 February 2013 following assurances from the European Commission. The Commission has since up-dated its FAQs on EMIR to include a question dealing with the application of the timely confirmation requirement. This may provide some limited comfort.

Proposed new margin requirements for derivatives

The long-awaited joint consultation paper from the Basel Committee on Banking Supervision and the Board of the International Organization of Securities Commissions on margin requirements for bi-lateral OTC derivatives was finally published late on Friday 15 February 2013. They are looking for comments on the "near final" draft principles by 15 March 2013.

Key proposals include:

• Universal two-way initial and variation margin applicable to financial firms and systematically important non-financial entities
• a threshold approach to initial margin
• a requirement not to re-use initial margin received
• phase-in over a four year period from 1 January 2015

The paper also requests feedback on the treatment of physically settled FX forwards and swaps.

The three EU ESAs are expected to publish their draft standards in this area shortly. This is one of the final pieces in the EMIR legislative framework.

Payam Tamiz v Google Inc and Google UK Ltd

Payim Tamiz sued Google Inc and Google UK for libel, after various comments which he claimed were defamatory had appeared on a blog hosted by Blogger. The comments had been posted on a blog called "London Muslim" between 28 and 30 April 2011. The full background is clearly set out in the judgment.

Initially, Mr Tamiz was granted permission to serve the proceedings on Google Inc in California and the hearing last month (February 2012) was the hearing of Google Inc's application to have that order set aside on the basis that the court did not have any jurisdiction to hear the claim, and even if it did, then it should not be exercised.

Mr Tamiz represented himself and Google UK took no part in the application because it had already been established that it simply carries on a sales support and marketing business in the UK.

In finding the UK court didn't have jurisdiction, Mr Justice Eady decided amongst other things, that Google Inc should not be regarded as a "publisher of the offending words" simply because it controlled and operated Blogger.com. Google's stance, which in this case appears to have been accepted by the court, is that it has no control over any of its content. It is not a publisher but "merely a neutral service provider".

This approach, and the judgment creates a distinction between Google's position and that of Godfrey v Demon Internet. In that 2001 case, merely carrying a newsgroup and storing postings was sufficient to make an ISP a "publisher" although in that case, the ISP had been asked to take something down by the claimant and hadn't done so.

Interestingly, in Mr Tamiz's case, Google contacted the blogger who ran the "London Muslim" blog some time after Mr Tamiz had complained and the blogger took all the material down on a voluntary basis. Google Inc made the point that it has no way of knowing whether the comments complained of were true or not nor can it reasonably be expected to investigate and determine the truth or falsity of allegations made by bloggers or those making comments.

 

Costly and embarrassing mistakes

We've just received some direct mail from a legal publisher with a "Warning" as its subject. The Warning reads:

"Are you making costly and embarrassing mistakes when drafting commercial contracts?" and goes on to promote a new edition of a book on commercial contracts.

It's an intriguing approach because I can't imagine any solicitor responding: "Oh, yes, I've been making costly and embarrassing mistakes and must buy this book". Surely they know that solicitors rarely, if ever, admit to making mistakes.

The Race to the Bottom

Amusing post from (our) accountants 3CA on the prospective client who wanted a "cheap accountant".

Why a cheap accountant isn't always cheap

Different Ways of Getting Company Documents Drafted

Most weekends I buy the FT newspaper for all sorts of reasons.  One of them is a general interest in the Business Entrepreneurial section. Going back through a few old copies, before I chucked them into the recyling I came across a very helpful question and answer in the Business Questions section.

I could link to it, but the FT requires registration (free) and I thought it might be easiest if I simply reproduced it here. (It's September 10/11 2011).  It addresses the painful and often expensive issue of how best to get basic corporate documentation sorted out for a start-up business.

"I'm the managing director of a start-up manufacturing business. We're in the process of preparing a shareholder agreement, supplier contracts and employment contracts for our staff and are worried about the costs involved in hiring a law firm. I've come across a numer of online legal documents that purport to fulfil our needs but I am unsure of their quality and whether they carry the same weight as bespoke documents."

The response is from Grahame Cohen, chief product and technology officer of Epoq which provides technology solutions to the legal sector. 

"There are an awful lot of confusing options out there, so I'll identify them, highlight their differences and then suggest a best fit for you. I suspect what you have come across so far are the various services scattered throughout the web that allow you to download pre-written templates, commonly in Microsoft Word.

These are often very low cost but come with a significant downside, as you have to essentially act as your own lawyer and try to edit them to ensure they suit your purposes. These services generally exclude all liability, so you're not covered if something goes wrong. This is a risky option which you should avoid unless you simply can't afford anything else.

There are more advanced services that use online questionaires to interview you in a similar fashion to a solicitor. Using your answers, they create comprehensive documentation based on your circumstances. These are often a little more expensive but a far better option as the documentation quality is likely to be on a par with bespoke drafting. As you are looking to draft agreements vital to your company I suggest that a solicitor reviews them to ensure you don't fall foul of any compliance regulations. Ideally, what you want is a blended service - which certain forward thinking law firms now offer - combining online questionnaires with their trusted advice, so you get the best of both worlds at a more affordable fixed fee. A useful resource to find these firms is www. OnlineSolicitorsDirectory.co.uk."

New Cookie Law Comes Into Effect

A new law that requires consumers to consent to cookies being put on their computers came into effect today (26 May 2011).

The change reflects an amendment to the EU's Privacy and Electronic Communications Directive. Until now, businesses were required to tell people how cookies were used and give them a chance to "opt out" if they objected.

Now, though, not only are businesses obliged to tell people, but they also need to get their consent.  The only exception is when putting a cookie on someone's computer is "strictly necessary" for a service requested by that person.

Consumers should therefore be expecting to be asked permission from today. And businesses need to start thinking about how they are going to ask it.

Given the short lead-in time to these new Regulations coming into effect (3 weeks) and the general low level of awareness, the Information Commissioner is proposing that businesses start to think about the practical steps they need to take to comply with the new law. The ICO has produced a helpful guidance note.

Sensibly, immediate and complete compliance is seen as unrealistic, but businesses should be able to show they are looking at the issue and working towards compliance and they are clearly expected to come up with new innovative ways of doing it. Meanwhile, the ICO has a nice simple box on its home page showing us the way.

The Cost of Lax IT Security

The whole saga of ACS Law, the firm of solicitors which pursued thousands of people for allegedly infringing copyright based on information provided by internet service providers (ISPs) is a troubling one.

There's vast amounts of information about Andrew Crossley, the solicitor who ran the firm, out there on the web, including the judgement of a disciplinary hearing  back in 2006 which related to his failure to file accounts with the Law Society (as all firms are required to do).

The saga took another turn last week when the Information Commissioner's Office fined Mr Crossley £1000 for his failure to keep confidential information secure. Not only did he not seek any professional advice when setting up and developing the IT system, but he apparently used a web hosting package that was intended for domestic use alone.

In addition to the press release, the full transcript of the ICO's judgement makes for an interesting read. Mr Crossley appears to have convinced the ICO that he has fallen on hard times which accounts for the reduced fine. As the ICO has indicated, a more realistic fine would have been £200,000.

Exclusions and Limits of Liability in IT contracts

A good article in a "Back to Basics" series on exclusion clauses and limitation of liability clauses. Not just for lawyers.

First in series on contract formation is here.

Checklist - What to look for when you use English solicitors

When I first started out in practice a solicitor friend of mine used to get really wound up about solicitors being the only business that tells our clients how to complain about our services before we've even started.

He had a point. I recently had to instruct solicitors in a personal capacity and received a client care letter that was over 9 pages long. It had clearly been the victim of serial revisions and was littered with errors. I politely suggested they read it through themselves.

Penny and I have been revising our own client care letter to ensure it is "compliant" but it's a challenging process.

If you are a business of any size instructing solicitors (i.e. getting solicitors to do some work for you) then as part of your own due diligence you should ensure that you are clear about way in which the relationship will work. I have produced the following Checklist which may be helpful. There are two good reasons for ensuring any law firm complies with this list. Firstly, you need to be sure they are compliant with their own regulatory obligations and secondly, you need to keep control of expenditure, or at least be in a position to monitor it.

1. Is the firm a sole practice, a partnership, a LLP or a limited liability company?

2. Have you received an up to date client care letter?

3. Have you signed and returned it?

4. What is the firm's compulsory layer of professional indemnity insurance? Who is the insurance with?

5. Does the firm limit its own liability in any way?

6. Have you received the firm's Equality and Diversity Policy? Does it comply with your own?

7. Have you received the firm's Complaints Procedure?

8 . Has the firm confirmed it is registered as a Data Controller?

9. Have you considered whether you need more details about the firm's data retention policy?

10. What happens to any documentation you provide to the firm? How long does the firm keep it?

11. Has the firm indicated the likely costs of dealing with the matter?

12. Do you know who has authority to instruct the firm to do any new work?

13. Are you liable for costs and expenses eg. photocopying?

14. Have you retained the right to audit the firm in relation to data retention?

15. Has the firm clarified the manner in which you can terminate the retainer and the consequences of doing so?

16. Do you have the firm's VAT number?

17. Has the firm confirmed what will happen to interest earned on any "client monies" it holds on your behalf?

18. How does the firm want to be paid?

19. Has the firm confirmed whether it is audited or quality checked by any third party? If so, is your matter likely to be subject to checking?

20. Is any work outsourced and have you been asked if you object to this practice?