Commercial law bytes - December 2020

18 December 2020

Welcome to the December edition of Bytes, your easy-to-read round-up of the latest developments in commercial and digital law.

In this edition, we discuss managing climate change in supply contracts, new guidance from CAP for online retail checkouts, recent cases concerning contractual good faith obligations and more. 

Access the latest developments below.


Managing climate change in supply chain contracts

With a greater emphasis from the global business community to commit to sustainable initiatives such as signing up to the UNFCC Race to Zero and to build COP26 considerations into their 2021 strategic plans, Anne Todd and Giles Neoh set out key considerations organisations should bear in mind when reviewing their supply chain contracts for environmental concerns. Read more

Specialist UK tech regulator incoming – the “DMU” to me and you

Mark Cusack sets out an introduction to the Digital Markets Unit which is set to form part of the CMA from April 2021 and regulate digital platforms in a bid to improve innovation and consumer control. The creation of the unit is in response to a CMA study conducted earlier in 2020 which identified a number of competition issues resulting from the dominance of certain online platforms. Read more

Rosie Duckworth summarises the recent Committee of Advertising Practice guidance on the advertising of delayed payment services.  This is welcome guidance assisting with consumer protection in an area which is growing at a significant pace.  The guidance is specifically aimed at services not already regulated by the FCA, where consumers are often not charge interest but may incur late payment charges. Read more.

Is data broking broke? Unpicking the ICO 's recent investigation

Roisín Cregan provides some useful guidance on legitimate interests assessments and other considerations to be borne in mind when combining personal data from different sources. The ICO’s investigation focused on large credit reference agencies, but this guidance will be helpful to any organisations relying on legitimate interests for their marketing activities. Read more. 

Court of appeal considers competing definitions of “goodwill”

The Court of Appeal has recently considered the meaning of “goodwill” in a commercial contract, continuing a long-standing discussion on the proper contractual interpretation of that term. Martha Campbell looks at the implications of the decision. Read more. 

EU Commission publishes draft new SCCs

Anne Todd provides an update on the EU’s draft standard contractual clauses (SCCs) and the reasons why they have been in the spotlight during the latter part of 2020.  The Schrems II case, which we reported on earlier this year, has caused considerable confusion in respect of the practical use of SCCs for international personal data transfers (especially to the US).  The draft SCCs now include processor to processor transfers which have long been requested by organisations and adopt a more practical modular approach. Read more. 

Things of note

Up to speed on good faith under English law? It's never been more relevant

Henry Beattie takes an in-depth look at the recent cases concerning contractual good faith obligations and where such obligations will be implied into commercial contracts.  This is a developing area and one that has had increased significance during the Covid pandemic, with contract counterparties often unable to adhere to the strict terms of their contractual arrangements, raising the question of whether or not they are acting in good faith. Read more. 

The EU Commission publishes its Intellectual Property Action Plan

The Action Plan identifies IP as a key driver of economic growth and critical to Europe’s green and digital transitions. The Commission sets out a number of steps to upgrade the EU’s intellectual property IP framework, including boosting the uptake of IP by SMEs; facilitating the sharing of IP to increase the technological uptake in the industry; fighting counterfeiting and improving the enforcement of IP rights; and promoting a global level playing field. Read more.

Our thoughts on other news

Intellectual Property after 1 January 2021

The Intellectual Property Office has provided a useful summary of the key changes to UK intellectual property system following the end of the Brexit transition period. The summary looks at changes to IP rights, the use of representatives, supplementary protection certificates. Read more. 

Centre for Data Ethics and Innovation

The Centre for Data Ethics and Innovation (CDEI), the government appointed body tasked with developing a governance regime for data-driven technologies, published its final report on bias in algorithmic decision-making.  The report focused on four different sectors (recruitment, financial services, policing and local government) looking at the impact automated decision making can have on individuals’ lives and how to ensure that we avoid the often spoken about negative impacts associated with algorithmic decision-making. Read more.