Understand Your Rights. Solve Your Legal Problems
Being a technology lawyer in Silicon Valley - the home of start-ups and innovation Emily Jones, Partner at Osborne Clarke has seen technology regulations become more complex over the years, especially as legislators try to catch up with rapid technology development and balance the potential impact of regulation on innovation, competition, and consumer protection. This month, she speaks more on GDPR and its impact on the US.
With privacy being an ever-growing issue, what do you think the future holds for data privacy issues?
We are entering a new era of data privacy where these issues will continue to be front of mind for businesses and consumers. Whilst companies have recently been very focussed on the implementation of the EU GDPR, many other jurisdictions, including Singapore, India and California, are introducing their own data privacy laws. This makes it increasingly challenging, as well as costly and time-consuming, for companies to operate globally. It also highlights the importance of getting the right local law advice and adopting the right compliance strategy.
When delivering data compliance strategies, what are three things you must consider beforehand?
A successful data compliance strategy needs senior level buy-in, combined with company-wide awareness and support to ensure that it is delivered effectively. It’s also essential to have engaged with the relevant parts of the business at the outset to understand the organisation's current and future plans, for example, any new product developments or growth into new markets. Finally, companies should think carefully about their approach to risk (including reputational risk), especially in the context of their role in the data eco-system and how their customers or users will expect them to approach data compliance.
In your experience, how did the EU GDPR impact US companies and your clients? How did you work around challenges these changes presented?
US companies were significantly impacted by the EU GDPR, largely due to the fact that many US companies were having to consider compliance with European data protection laws for the first time. Their European customers and users were also demanding detailed information and reassurance that their US vendors were compliant.
One of the initial challenges for US companies related to understanding key GDPR concepts, such the scope of personal data, which is much broader than the term PII used in the US. We worked to overcome this challenge by providing lots of training and explanatory guides for our clients, which they could then use with key stakeholders internally. We also created summaries and white papers that US companies could use to demonstrate to their approach to compliance to European customers.
Many US technology companies use vast amounts of data in complex and innovative ways that are core to their business models. This meant that there were challenges in applying the principles in GDPR at the outset. One key first step to address this was to make an initial assessment to understand the nature, scope, volume, location and uses of personal data within a business. We helped clients mapping out and advising on the key steps that the company would need to take to comply and which to prioritise.
Another challenge was building an internal governance framework and data privacy-related policies and procedures to address the additional GDPR obligations around record keeping, security, data subject rights, accountability and impact assessments. We helped many clients to put in place accessible and straightforward documentation to achieve this. We have created and will continue to develop a number of new products and also offer technology solutions to help companies deal more efficiently and quickly with high volumes of data subject access requests, for example.
Is there anything you would like to add?
Going forward, we anticipate further regulatory guidance, enforcement action to occur, but also commercial practices to evolve and stabilise. This will provide some much needed certainty for companies in both the US and in Europe who continue to face compliance challenges in this area. To find out more and to read our latest insights, readers can visit our GDPR hub.
Emily Jones is a Partner at Osborne Clarke LLP and head of their Silicon Valley offices. Emily and her team also provide international legal expertise in time-zone and connect our clients with specialists around the world to advise on a full range of legal issues.
Osborne Clarke is an international legal practice with 25 offices, 740+ lawyers and 250+ partners across Europe, Asia and US.
Since the current disclosure process was first introduced in the courts of England and Wales over 18 years ago, there have been huge increases in the amount and volume of data used by businesses. With this in mind, the Disclosure Working Group has been given the go-ahead, subject to Ministerial consent, to implement a pilot scheme with the aim of bringing the disclosure process in line with today’s digital world, promoting engagement and refocusing disclosure on the issues in a case.
Currently, standard disclosure is the go-to approach in courts, meaning that parties are required to disclose all documents on which they rely, or which adversely affect or support its or another party’s case. This can be an invasive, expensive and long-winded process, which was not designed for the abundance of electronic communications which we deal with today. While other options for disclosure are available, the lack of across-the-aisle discussion around the topic means that they are rarely used.
The pilot scheme will last for two years starting on 1 January 2019 and is expected to affect business and property courts in the Rolls Building (London), as well as in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle. During this time, ‘standard’ disclosure will be replaced with the new procedures, ‘basic’ and if deemed necessary, ‘extended’ disclosure.
For both parties, basic disclosure will be the first port of call, where they will be required to disclose a limited number of key documents that they rely on at the point they serve their statements of case, in order for the other party to understand the case. After this, and ahead of the case management conference, the claimant will produce, and parties will seek to agree, a list of disclosure issues. From this, the parties will produce a Disclosure Review Document, in order to help the court decide which form of extended disclosure is necessary and the issues it should cover. Legal advisers should also note that they will be required to certify to the court that they have explained the obligations, options and costs of disclosure to their client.
The revised options will comprise of five models: model A is for “No Order for Disclosure”, model B is defined as “Limited Disclosure”, referring to known adverse documents and model C is a “Request-led search-based disclosure”, which comprises of documents requested by another party and initially set out in the Disclosure Review Document.
Additionally, model D will be comparable to the previous model of “Standard Disclosure” in which a party shares all documents to support or oppose their own case or that of another party, following a reasonable and proportionate search. This will normally exclude “Narrative Documents” (background or contextual documents). Lastly, model E will be reserved for exceptional circumstances and defined as “Wide search-based disclosure”. In these instances, all standard disclosure documents will be included, along with “train of enquiry” documents that may lead to the identification of further documents for disclosure. This will include Narrative Documents and if this option is selected, separate cost orders may arise for undertaking this exercise rather than simply “costs in the case”.
These changes make for a very positive starting point when it comes to shaking up the systems of disclosure throughout England and Wales. Their effectiveness and practicality will only truly be determined once we see them in practice, and there will undoubtedly be some challenges to overcome in the early stages of the pilot.
However, the changes should mean that processes are not only simplified but are also tailored to be more effective. With the emphasis now being placed upon engagement across the aisle, both parties will need to operate with greater transparency. Furthermore, the change will require clients to be more involved in the process and discuss matters in greater detail from the initial stages, something which has previously been left to the legal counsel.
The revisions to the system will also aid the practicality of disclosure processes. Use of technology is being promoted and, similarly, the costs associated with this process will be diminished by controlling the level of disclosure. Previously, adhering to standard disclosure has been a labour-intensive exercise, often requiring thousands of documents to be studied. The new variations of extended disclosure models will mean that both parties will be able to keep a firmer handle on expenditure.
As an aside, the original proposal for the pilot had also required a party seeking to withhold documents, for example when claiming privilege, to describe the grounds with “reasonable precision” rather than casting a general net over privileged classes of documents. Fortunately, this has not made its way into the most up to date proposal.
Shakespeare Martineau is a firm with big ambitions for its clients. We’re passionate about providing the right solutions and driven to make a positive difference in everything we do.
It’s our business to understand yours, bringing creative ways of thinking to complex challenges. We provide an extensive range of services that have been designed firmly around the needs of our clients. With dedicated teams of sector specialists, we have an enviable reputation and expertise in many industries, such as: Advanced Manufacturing, Banking & Financial Services, Education, Energy and Investment Funds.
James advises on resolving claims through the Courts, through alternative dispute resolution, including international arbitration, or where settlement is a commercially desirable for his clients, mediation.
His range of work includes contractual and shareholder disputes, professional negligence claims and also ones involving injunctive relief, including the recovery of company databases and enforcing restrictive covenants.
James is driven by a strong desire to secure the best result for his clients and has been commended for providing robust and clear advice and for his innovative approach.
50 years ago, it was normal for a lawyer to be the go-to trusted adviser to businesses and families on multiple issues. However, with increased specialisation, lawyers lost the ability to be the ear on all their clients’ issues.
Accountancy firms capitalised on this gap in the market developing their consulting expertise and became firmly entrenched as business advisers.
The scope for lawyers to increase their value add as business advisers is extensive. The key is for them to position themselves with their clients as a resource to create value. The role of General Counsel has to some degree done this, but private practice lawyers can do more to position themselves as business advisers and, in the words of a litigator I once trained with: “save your clients a fortune and be the good guy”.
The points below focus on making sure that through the use of mediation skills, lawyers can be “back on top” in their position as trusted adviser.
Although this might sound counter intuitive, withholding advice can be crucial to getting clients what they want.
Listen Like a Mediator
During a private party session or “caucus” with a client, the mediator effectively becomes the client’s conflict coach. They may do this to a greater or lesser degree with the representing lawyer depending on how engaged the lawyer is in this part of the process.
Listening like a mediator means listening listen deeply to aspects of the case that are important to the client. This means listening to and not disregarding the issues that seem “irrelevant”. Further it means reflecting back what you have heard from the client. This serves three purposes:
Withhold Advice
Although this might sound counter-intuitive, withholding advice can be crucial to getting clients what they want. Most mediators operate from the basis that clients know more about their situation, their business and their goals and aspirations. It is the reason why so many mediators are not specialists in a subject but rather in the process. It is also the reason why most agreements reached at mediation are sustainable. The mediator enables the client to work through the commercial realities as opposed to having them forced on them. The result is that the client is more bought into the agreement and more pragmatic about it.
Where a lawyer can act as a sounding board, they enable their client to focus on and develop commercial solutions. In turn this avoids jumping in on litigation strategy or point scoring. This means that when legal advice is finally given, it can truly support the commercial decision-making process as opposed to driving it. It also helps the client to see the lawyer as a truly commercial partner as opposed to an inconvenience.
Agreeing when best to negotiate is the first step in a negotiation strategy.
Focus on the Business Case
Focussing on the business case for mediation and reviewing that business case from the get-go places the choices about litigation firmly on a commercial footing. It also gives the lawyer insight into the commercial and other priorities of the client before the litigation gains momentum.
Lawyers have an obligation to inform the client about the legal costs which can not only be frightening for the client, but also the lawyer, particularly if they feel under pressure to win the work and hit targets. That said, by considering mediation at an early stage, it demonstrates that the lawyer is cognisant of his/her professional obligation, appreciates the commercial realities of litigation and has a desire to save a client considerable costs. A firm focus on the business case can also identify risk both with respect to the litigation but, more importantly, other aspects of the business on which the client may well seek support. This, in turn, provides opportunities to refer the client to other departments throughout the firm and add value to the client.
Lawyers often need to adapt perceptions or behaviours by realising that by moving to mediation, they will not necessarily relinquish control of a case.
Plan the Negotiation Strategy
Agreeing when best to negotiate is the first step in a negotiation strategy. No-one wants to negotiate from a position of weakness, so positioning the client well before starting to look at concessions is vital. In addition to this, planning negotiation styles with the client can create clarity in the negotiations and avoid the board table equivalent of a “random punch up”. It can also help align commercial negotiations or conversations that are happening in the background to legal conversations and render client and lawyer a true team.
A negotiation strategy should generally be more in depth than may seem necessary in the first instance. It is not just about top and bottom lines. It may involve non-aggressive strategies to understand the more hidden aspects of the other party’s motivations and drivers better. It may involve thinking about principles on which the negotiation is to be focused. Working with the client on this has the advantage that the client will often understand the other sides’ preferred negotiation style (collaborative, competitive, compromising, accommodating, avoidant etc.) and enable the adviser to adapt their approach to get the most favourable results.
Mediation is essentially a commercial solution. It includes negotiation, conflict coaching and working with the law to achieve the client’s optimum objectives.
Incentivise Associates and Consultants Appropriately
Whilst lawyers want to achieve the best results for their clients and act with integrity, they may be tempted to delay mediation which, if proposed at an early stage, could save their clients considerable sums of money. It is quite normal, to be subconsciously motivated by billing targets which can encourage this delay.
Lawyers often need to adapt perceptions or behaviours by realising that by moving to mediation, they will not necessarily relinquish control of a case. Instead, they will be working with the client (and possibly the other side) to crystallise the issues and achieve a workable deal. At worst, if mediation fails to resolve the issues (and a large majority of cases settle as a consequence of the mediation process), then the client will know that their legal team has done everything possible to resolve the claim, with litigation and associated costs being a last resort. This builds the trust relationship with the client and encourages them to come back to seek advice on other issues.
Where solicitors are appropriately incentivised for referring the client to other appropriate members of the firm or even externally, a better result can be achieved for all involved. In most firms, this will involve a review performance targets and remuneration, which can be challenging. However, it has the potential to transform the firm’s brand identity and message focusses towards achieving the best result for the client no matter what.
Mediation is essentially a commercial solution. It includes negotiation, conflict coaching and working with the law to achieve the client’s optimum objectives. Drawing on mediation and the skills mediators use, lawyers do not have to do much to add immense value to their clients and return to the role of trusted adviser. The alternative is an increasingly specialised competitive market in which the lawyer is much more likely to become the villain of the story.
Louisa Weinstein is an experienced meditator and the author of 7 Principles of Conflict Resolution, out now, priced £21.99.
She has carried out extensive mediations covering property, construction, corporate-commercial, shareholder disputes, media with a range of corporate, public sector and high-profile clients. She is also a regular contributor to the Civil Mediation Council having also spoken at the Annual Conference in the past.
The field of insurance in Germany is subject to constant change. An example, explained by Jens Rodel: “The targeted rates of return have markedly decreased, something mainly caused by the financial crisis. This becomes more and more of a problem, especially for the assurance companies, because partially contractually agreed to guarantee-interest rates can no longer be generated on the capital market.”
He speaks more below about German’s unique insurance system.
What kind of work have you recently completed or are currently dealing with and what are the greatest challenges therein?
Currently in the area of personal insurance, two complex problems keep arising. The first of these is the rescission of an insurance contract by the insurance company due to fraud. Here, the insurance companies refer to the fact that false or inapplicable information was provided by the insurance holder at the time of closing the contract. Generally, this only becomes known to the insurance company years after closing the contract, with the occurrence of an event covered by the insurance. An enquiry to the treating doctor is then begun on the basis of a submitted declaration of release from confidentiality, however, the question remains, with regard to the reforms in legislation concerning data protection, whether this is even permissible.
In this context, there is a relatively new verdict from the Federal Supreme Court, which decided that the insurance holder must be presented with several alternatives with regard to the declaration of release from confidentiality and it must be considered what would happen if no declaration of release from confidentiality is given. Very often there are already mistakes present here.
The declarations are also sometimes too extensive in terms of time. This then leads to the information being unlawfully brought to court, according to the jurisdiction of the Federal Supreme Court. Thus, the insurance company cannot rely on its rescission, which leads to the consequence that it is still, under these circumstances, bound to a duty to perform.
The second issue is particularly relevant in the area of life insurance. Here, the contrary instructions for several existing agreements are erroneous, which leads to the insurance holder still being able to ‘get out of’ the contract even after years. This is of interest to many insurance holders because of the already above mentioned difficulties, with the possible guaranteed-interest rate not being observed by the insurance company. For the lawyers, the problem is that the jurisdiction is not yet very fully differentiated, so that different courts come to different solutions for the same problems. Lawyers must therefore very closely observe the developments and trends in the case law and determine a strategy in the interests of their clients according to these.
Currently in the area of personal insurance, two complex problems keep arising.
There is a classic German saying: “There’s probably an insurance for this.” Why do you think this is?
In Germany, insurance is mandatory in many different fields. Of course, the most important of these are firstly, social insurances (for example, health insurance, pension insurance etc.) and secondly, for example, third party vehicle insurance. Here, protection against certain risks is already stipulated by law. Moreover, there exists the possibility and the offer of insuring oneself against a wide variety of risks (one could even say, against nearly all risks).
Historically, a significant part of the population is more conservative and of a security-orientated mindset. There is, of course, also the fact that widespread opportunities for getting advice and information are available through insurers, insurance brokers and even internet offers, all of which are used. As a result, many different insurance contracts are made, in order to also be insured in case the worst should come to the worst.
Can you explain Germany’s two-tier insurance and why it’s so complex for many?
Health insurance in Germany is made up of two parts - there is state (statutory) insurance as well as private health insurance. It is fundamental to note that there is an obligation to obtain insurance. It is the statutory rule that, for most insurance holders, there is a duty to obtain health insurance in the state health insurance system. For those to whom this does not apply, the German Insurance Contract Act rules principally that there is a duty to obtain private health insurance. There is, therefore, in Germany a co-existence between private insurance companies, which are financed by insurance premiums and state social insurance carriers, which are financed by a contributions-based system. The contributions of employees are as a rule paid directly by the employer. This represents a fundamental difference to health systems in other countries. The state health system in Sweden, for example, is financed by means of taxation. In the USA, on the other hand, citizens must pay for health costs themselves or insure themselves privately.
Many would like to have private health insurance because this way, by paying the corresponding premiums, there are more and better services on offer than with state health insurance. However, this only generally works if there is no duty to obtain insurance from the state health insurance system, especially if their income is more than that set by the so-called compulsory insurance limit. If the required income is reached, then there is the possibility to insure oneself privately.
The whole thing is then made more complicated by the fact that those who have state insurance can also obtain extra private health insurance. This then steps in for costs and services which are not covered by the state health insurance. A popular example of this is the costs for dentures.
How do you help clients best overcome barriers within this system?
Many people want to obtain private health insurance at an early age due to better services and the relatively low contributions. With increasing age, one notices a reverse trend. The costs for private health insurance are increasing, in parts even significantly above the level of state health insurance. As a result, many want to go back to state health insurance because they can’t afford to be privately insured any longer. Indeed, one should bear in mind certain age limits. Over the age of 55, being able to change back to state insurance is as good as impossible and only in a very few exceptional cases can this still happen.
The task of lawyers in this field is to examine the question, whether the legal requirements for such a change already exist or if these can still be met. Alternatively, in order to sink the costs of private health insurance, it can also be considered whether the scope of the insurance can be reduced, or the co-payment raised.
Firstly, the persistent changes in the economy and environment constantly require new insurance products.
What have you found to be the most important thing to consider in dealing with insurance litigation in Germany?
The most important thing in the insurance process is the groundwork. At this stage it must be determined exactly how wide the scope of the insurance is and whether there have been any changes made to it. Therefore, it is essential to examine the application for insurance, the insurance policy, and all available insurance conditions and notices of changes in order to be able to ascertain exactly what the scope of the insurance is and whether an event covered by the insurance has occurred.
The principle of production of evidence applies in German civil procedure law. This means that the parties must produce all essential circumstances of the legal dispute. The court does not officially investigate here.
The groundwork mentioned above ensures that an account which corresponds to the civil-procedural requirements can already be made starting from the first legal document. Therefore, one must be careful to ensure accuracy. For example, if, in the context of a lawsuit, a lawsuit cannot be sufficiently and comprehensibly submitted, German civil procedure law provides for the lawsuit being dismissed on the grounds of indetermination.
In your extensive experience at FELS, what have you experienced to be the driving strengths of the business in the field of insurance?
Firstly, the persistent changes in the economy and environment constantly require new insurance products. In the future, the demand for products, which, for example, cover damages made by severe weather due to global warming or which insure against cyber-crime attacks, will probably increase enormously. Secondly, insurance companies of course also strive towards placing innovations for types of insurance which already exist on the market in order to win new clients (even from other insurance companies) or to try to get already existing clients to agree to new contracts. Currently, as a result of the relatively good economic situation in Germany, many are also considering how the currently reached standard of living can be permanently ensured for the future. As an example of this, one can mention accident insurance and disability insurance. As relatively good incomes are currently being earned on average, the preparedness to invest a part of these earnings in insurance products, which represent an extra security to the insurance which is compulsory anyway, is also naturally on the rise.
Jens Rödel is a lawyer who works at law firm F.E.L.S Bayreuth GbR and is qualified there in the areas of Insurance Law, Medicinal Law as well as Transport- and Conveyance Law. There is, particularly in the area of Personal Insurance and injuries to persons, an emphasis on being active as well as an extensive and renowned expertise.
The law firm F.E.L.S was founded in 1924 as an individual law firm and grew in the 1950’s into a joint practice with 4 collegial lawyers. Since then, a consistent specialization has ensued, in keeping with its constant growth. All relevant areas of law can be covered. F.E.L.S has not only private persons as clients, but also smaller and mid-sized companies as well as major corporations.
Martin Beames, Solicitor and Partner at ODT Solicitors, stresses the importance of preparing a living will. He says: “My advice would always be to seek professional legal help with drafting something as important as an advance decision. It is your decision, very personal to you. Don’t take a chance and try to draft it yourself. It’s too important to leave to chance – speak to an expert.”
He speaks more with us on drafting living wills and who to appoint as a Power of Attorney.
Martin Beames, Solicitor and Partner at ODT Solicitors, stresses the importance of preparing a living will. He says: “My advice would always be to seek professional legal help with drafting something as important as an advance decision. It is your decision, very personal to you. Don’t take a chance and try to draft it yourself. It’s too important to leave to chance – speak to an expert.”
He speaks more with us on drafting living wills and who to appoint as a Power of Attorney.
When preparing a living will, what three things should people consider?
When considering setting up a living will you should always think about:
When do complications arise and what can be done to avoid this?
The most obvious complication will be where a person has not told their family. The medical professionals may well be doing their jobs and following your advance decision, but when the family then turn up at the hospital, the arguments that can develop are not to be underestimated. Even if the family agree, they will still be left with a horrible feeling that their loved one could not trust them with such a decision.
What should clients consider when appointing Powers of Attorney? In your opinion, what are the advantages and disadvantages of this?
Generally, when setting up a Power of Attorney, people should appoint their close family. These are the people who will generally know them best and accept their duty to act in the best interests of the person for whom they are acting. Problems arise when family do not agree with what is acting in a person’s best interests. If you have two children and appoint both, then you need to be sure that they will both follow your wishes and agree what is in your best interests. If you cannot find a way through such disagreements, then consider appointing someone completely independent. A family friend may be the answer, but it can be a significant imposition. Appointing a lawyer may be the solution to the question of independence, but such an appointment means a lengthy discussion and paying the legal fees of the lawyer for being involved in your affairs. Many lawyers will not accept instructions to act on a personal welfare basis, and will only agree to act on financial affairs matters
As Thought Leader in your field, are there any changes you would advocate for that would benefit your clients?
The whole law surrounding advance decisions needs to be made clearer. There is no specific form to be used and no standard wording. The internet is a place full of dangers and contradictory advice as to how to set up such a document and who to tell. The whole status of an advance decision needs to be codified, to ensure that those who want to set them up can do so easily. By the nature of such a document, it is only going to be relevant when you are no longer in a position to communicate your wishes yourself. It is important that if you are going to prepare such a document, you can be confident that what you have drafted will work.
Martin is a Solicitor with 20 years’ experience across the legal profession working for law firms and for a large High Street bank. He specializes in Inheritance Tax planning and the preparation of Wills, the setting up and administration of trusts, the creation and operation of Powers of Attorney, the administration of estates after people have died and the obtaining and dealing with Probate, and related matters.
As insurance lawyers sitting at the heart of the London Insurance Market which itself is at the heart of the global specialist insurance market, life is never dull for the EC3 Legal Coverage team. They get stuck in to really interesting insurance programme review work and (re)insurance claims all over the world. Paul Wordley, Head of the International Insurance and Reinsurance Recoveries Practice says: “Increasingly, clients recognise that their insurance procurement activity has been under lawyered in the past and that they need to invest in a contract legal review before they have a claim.” Below, we speak more with Paul about the insurance world.
What three things must companies consider when looking to seek recovery with insurance?
We would take the approach to ask:
What are common insurance issues you find companies deal with, and how do you go about tackling such issues?
The most common problems are based on the issues referred to above which is why the team recommend a proactive approach to the procurement of insurance based on a full understanding of what is sought to be achieved and by obtaining legal comfort that the insurance contract works before there is a loss.
Legacy wordings inevitably will have built-in problems that have often been considered too difficult or political to deal with, for example, after a series of mergers. There are still too many cut-and-paste wordings in circulation where the policy is a patchwork of clauses and conditions that don’t always sit together well. Exclusions that are meant to be confined to a particular issue, but with resultant cover for other impacted areas, can often be written in a way to make them absolute exclusions.
How do you tackle litigation when claims are brought to you? What are your initial steps?
This can happen when the insured has decided that a specialist legal team is required or where insurers have already commenced proceedings. In all cases we always review what has been done before our involvement and inevitably, the parties will already be polarised on various material issues for there to be proceedings. Depolarisation is the objective, not litigation, unless there is no alternative. We will check that what is being claimed and litigated over, is actually recoverable under the policy. Whilst we will of course deal with the proceedings, we also look to identify the issues and values involved that have led to this situation and seek commercially to depolarise where at all possible.
Paul Wordley is Head of the International Insurance and Reinsurance Recoveries Practice at EC3 Legal based in London but with clients all over the world. His particular areas of expertise are in the oil, gas, mining, marine, construction and TMT sectors. Paul has been involved in a number of high-profile international insurance and reinsurance claims in recent years and has also advised on a number of recent major oil, gas and mining claims. He also has significant mediation experience, having represented clients in several successful multi-million-dollar mediations.
EC3 Legal’s insurance and reinsurance recoveries team proudly and resolutely represents clients from all market sectors, including policyholders, brokers, captives, insurers and reinsurers, based nationally and internationally. Its lawyers leverage their hands-on experience of many years in the London Market and knowledge of in-house and global firm culture and imperatives, in seeking cost-effective solutions for clients, whether by negotiation, mediation or arbitration/litigation. Assignments include a broad spectrum of property, liability, specialty, cyber and emerging risks.
As we are often told, breakfast is the most important meal of the day. The right fuel will keep you going so it seems, but what about the team working hard to provide you your favourite first meal of the day? To be the centre of the UK’s number 1 healthy breakfast cereal is no easy job and as the Head of Legal at Weetabix Food Company, Helen Wilson knows. Helen leads the Weetabix Food Company legal team and takes responsibility for overseeing the legal function of the Weetabix Food Company business, both in the UK and overseas.
“Protecting our brand is key to Weetabix, as is data security and we are currently looking at process efficiencies to drive improvement and the provision of legal support services.
“Within the legal team we have a two-year strategy to make sure we have effective processes for getting things done. We are also looking at innovation and ways that we can approach the volume of legal support a business this size requires and to add value to the relationships that our teams are building.
“These processes will also allow us to feel more connected with our teams globally, which gives us the foundations to react quickly to any situation that arises”, shares Helen.
This month she shares with Lawyer Monthly more about her role. From her morning routine to ensuring ecommerce does see us waving goodbye to traditional retail, Helen speaks on how her legal team works to the best of their ability.
As a lawyer providing a support service, you need to get under the skin of the business and so we are spending more time in the plant to really understand and appreciate how we make tasty and nutritious cereals and breakfast drinks.
What took you most by surprise when you first began working as Head of Legal at Weetabix Food Company?
When I joined the team, I was surprised that for such as iconic and established, well-known brand, there is such a family feel to the business. When you think of Weetabix you think of the famous yellow box, but everyone here is very down to earth and we all work together to ensure we are doing the right thing.
What are your plans for the company in the next year? What are you hoping to achieve and how will you go about it?
With the change in leadership and the pace of recent legislative change, we have the opportunity within the legal team to re-engage with the business to ensure that we continue to operate in a safe, legal and complaint way but as an approachable and accessible legal support service. It’s vital that the legal team are here to help the business develop and can work closely with brand teams to offer commercial and pragmatic advice, not acting as a barrier to success. We will also work to support our teams worldwide and improve that accessibility on an international scale, so we are connected as a business.
With it now so easy for consumers to shop for groceries online using their ‘favourite’ shopping lists, it’s vital we continue to educate shoppers on new products that they might have previously been introduced to via campaigns on the supermarket aisles.
What challenges do you face when trying to entwine a family-focused brand to be a commercial product which leads the market?
This comes naturally to Weetabix as it’s a product that people want. Eating a healthy nutritious cereal is a great start to any family’s day and it is the reason Weetabix was created more than 85 years ago - and why we’re still the nation’s favourite cereal today.
We constantly review safety standards to ensure we’re ahead of the game. There is new legislation introduced all the time, such as the recent GDPR changes, so we have to monitor these and be ready for any challenges.
Our marketing team are very creative, so we have to be ready to offer commercial advice that can help ideas get off the ground rather than acting as a block for creativity. We are there to help the team continue to produce leading brands in the market and to create good value for Weetabix Food Company.
How does your legal expertise guide you and your team through these challenges?
I have over 21 years’ experience as a practising solicitor in private practice and in house. It is important that we remain on top of the game, both in terms of legislation on the horizon but also the strategy for the business. We need to imbed legal services within that strategy as trusted advisers, so that we are there at the beginning and help to get the business over the line. That means we need to raise the profile of the legal team and contribute to operational effectiveness by working closely with our experienced technical team who look after the quality aspects of Weetabix Food Company products. My previous experience has taught me that as a lawyer providing a support service, you need to get under the skin of the business and so we are spending more time in the plant to really understand and appreciate how we make tasty and nutritious cereals and breakfast drinks. That means our advice is commercial and relevant. My youngest daughter thinks I make Weetabix anyway!
Having passion and enthusiasm for the brands is central to this role. It’s also important to offer a commercial and pragmatic approach to help brands reach their full potential.
With e-commerce taking over retail, what do you think is vital in ensuring Weetabix, or other food brands do in order to remain ahead of the game?
With it now so easy for consumers to shop for groceries online using their ‘favourite’ shopping lists, it’s vital we continue to educate shoppers on new products that they might have previously been introduced to via campaigns on the supermarket aisles.
Health, obesity and sugar levels in foods are three current issues for manufacturers and are big talking points for consumers. Weetabix original is categorised with all green on-pack traffic lights for low sugar, salt and fat, so it’s important we are prominent in the market place in showcasing Weetabix as one of the most nutritious breakfast cereal options available for a breakfast occasion.
Are there any specific regulations or legal areas which can cause problems in the food industry, especially when wanting to expand internationally?
I do a lot of Intellectual Property work for our brands, while food safety and competition laws are also key areas for us. We also spend time looking at legislation in new territories to ensure we have considered everything before launching in a new market.
Aside from working tremendously hard and have refined knowledge in your area of expertise, what do you think was an important factor behind becoming Head of Legal at such a renowned company? What would you advise those aspiring to be in your position in the future to do?
Having passion and enthusiasm for the brands is central to this role. It’s also important to offer a commercial and pragmatic approach to help brands reach their full potential.
I’ve wanted to work for Weetabix Food Company for a long time, I love the British feel of the business, as well as the fact that all the wheat for Weetabix original is sourced within 50 miles of the plant in Burton Latimer.
My advice for anyone aspiring to be in an in-house role, is that it’s about being a general contributor to the business, understanding the pressures that management and your peers are experiencing and adapting your advice to give an appropriately commercial solution (or at least identifying the level of risk). It is not just application of the law, but about having lateral commercial thinking to support the business.
What different things do you have to take into account when working overseas than solely in the UK?
It’s important to take account for the local jurisdictions and customs that will come into play on an international level. We operate in markets around the world that all operate very differently. It’s about maintaining good communications with the team on the ground and understanding their challenges so that you can move quickly when issues arise.
Why did you pick law?
I chose to be a lawyer as I wanted a career when I left university. As a female growing up in the 1990s I wanted to be an independent working woman and thought that law would be good sector to do that. My dad worked for a building society and we ended up moving around a lot as a result of his work, so I wanted a career where I could dictate my location and my next move.
Aside from a big bowl of Weetabix, of course, how do you start your day as Head of Legal? What is a good morning routine for a legal expert to have?
Firstly, I drop my two kids off at their school’s breakfast club (Weetabix Food Company products only!), before my 13-minute drive to work where I’ll either call my parents or listen to Radio 2. I arrive at work around 8.30am, make a black coffee, check my diary and crack on with the day’s work. I’ll have an Alpen bar mid-morning to keep me going until lunch.
Weetabix Food Company invests a lot in their people and there are often courses and support to ensure I’m happy and maximising my energies to ensure top performance for the business, whilst being efficient with my time.
Helen Wilson is a qualified commercial finance lawyer with extensive transactional and advisory experience gained in international and national law firm practices. She advices in house and combining legal and commercial skills at Weetabix. Here Helen works closely with the Board and senior leadership team to help manage a wide spectrum of legal matters that impact the FMCG business, from where they make Weetabix and their products to procurement of ingredients and supply of services - like warehousing and distribution - as well as supporting our commercial customers and retailer teams.
Weetabix Food Company makes Weetabix, the UK’s number one selling, most trusted and most recommended cereals. It is home to some of Britain’s most famous and iconic brands including Weetabix, Weetabix Minis, Alpen, Weetabix On The Go Breakfast Drink, Ready brek, Weetos and the popular Alpen bars.
The way global companies handle data changed dramatically on 25 May 2018, when the European Union’s (EU) General Data Protection Regulation (GDPR) came into force. Designed to address concerns over the security and use of personal data, GDPR applies to data processing activities regarding personal data within Europe as well as data transfers within the EU and between the EU and non-EU countries. It is likely to become the global benchmark for protecting personal data.
A recent global study called The GC’s Guide to GDPR conducted by The Legal 500, in association with KPMG International, of General Counsels (GCs) across 448 institutions, showed interesting information around the confidence of GCs in implementing GDPR, with a majority of businesses revealing that they weren’t ready for GDPR, which came into force 25 May.
Throughout the process, legal teams have been made responsible for preparing compliance measures for GDPR and the stakes are high. Those that do not perform compliance tasks correctly may face fines of up to 4% of global turnover. The question is, are legal teams and GCs working efficiently to prepare their organisations for the challenges of the new regime?
Over a fifth (21%) of respondents said implementing policies across all divisions of their organisation or group was the biggest challenge they faced.
Surprisingly, the research demonstrates a varied level of compliance and confidence in compliance of businesses, across the EU and other markets.
GDPR is EU legislation, but applies to all businesses internationally that manage or handle data of persons in the EU. Respondents in non-EU jurisdictions, such as Brazil (52%) Russia (44%), Australia (51%) and the USA (51%) were, on average, more likely than EU respondents, to feel prepared for GDPR.
The survey shows that, even those organisations located within the EU, have a high degree of misplaced confidence when it comes to assessing their GDPR preparedness.
Lawyers leading on GDPR compliance
Legal teams are in the driving seat when it comes to GDPR compliance and GCs are at the heart of the process. In fact, GCs are more likely to be responsible for setting data protection compliance policies than any other function leaders across the organisations surveyed.
A mere 13% of GCs also believed they were prepared for the implementation of GDPR, when the topic of data security and cyber risk is not the concern, or priority, of senior-management.
GCs were also responsible for setting data protection compliance policies at over a third (34%) of organisations surveyed, compared to the role of chief compliance officer at only a quarter of the organisations. This can be challenging at times as GCs lack wider support from the business to ensure that their companies remain GDPR compliant. A GC of a consumer goods company noted, that:
“A lot of GCs are almost victimised by their organisations over this. If your IT teams won’t talk to you and show you the systems – either because they don’t see it as their job or they are not properly incentivised – then you can’t really do much.”
For those appointed to the role of data protection officer (DPO), getting an overview of the various data collection and processing systems across their organisation has been and will continue to be a challenge. This challenge is particularly pronounced at multinationals where staff operate in many different jurisdictions, each with its own data protection regulations.
Establishing global data protection standards will be challenging for many organisations. The study found that just under half (47%) of organisations said data privacy was managed by a single, centralised function, while over half (55%) said they had put in place a single, global data protection standard.
Different jurisdictions for multinationals will have varying priorities and challenges. Over a fifth (21%) of respondents said implementing policies across all divisions of their organisation or group was the biggest challenge they faced.
The study also showed that a number of GCs believed the best solution to the challenge of GDPR is to make the most of it and focus on the solutions it presents.
KPMG is a multinational organisation, so we appreciate the challenge this brings. For example, GCs from the UK and Ireland responded that updating systems and changing the way in which the organisation stores data, so that new rights such as the right to be forgotten can be implemented effectively, is seen as the biggest challenge, while ensuring ongoing compliance with GDPR was the top priority for businesses in Germany.
Board Responsibility in Cyber
Above all, the research made it apparent that the topic of data security, specifically the concern regarding data security from board members of businesses, is of utmost importance. GCs have shown that in order to avoid risks, data security must remain at the top of the agenda for businesses.
A mere 13% of GCs also believed they were prepared for the implementation of GDPR, when the topic of data security and cyber risk is not the concern, or priority, of senior-management. In order to mitigate risks and ensure success, board engagement is beneficial at every stage to ensure GDPR compliance. This is evident through the comparison made between the organisations where board members are giving GDPR the necessary attention, as supposed to those who do not. For example, in the more attentive organisations, 69% have appointed at least one DPO, versus a mere 27% in those less concerned with GDPR.
Businesses both within and outside the EU, have seemingly overlooked the risk that third-parties, such as commercial suppliers pose to GDPR compliance. This is another major risk to large businesses, as only 10% have surveyed whether these third-parties are even in compliance with GDPR, before transmitting personal data to them. These are just a few examples of the potential risks at hand and why they must be given attention.
GDPR is a good opportunity to win trust
For all the risk, GDPR is a good opportunity to win consumer trust, examine closely how personal data is collected and stored, and prepare for a world where this data will become increasingly valuable. The study also showed that a number of GCs believed the best solution to the challenge of GDPR is to make the most of it and focus on the solutions it presents. In an age where data is king, storing and managing customer data appropriately is a business advantage. This can be an opportunity for GCs and businesses to differentiate themselves too, if done correctly – and many organizations are reaping rewards from managing their data effectively.
Jürg Birri joined KPMG in Switzerland as a Partner in 2011 and heads the Legal Practice in Switzerland. He is in charge of a large team of lawyers and professionals who specialize in business law, private clients and financial market law. In addition, Jürg holds the role of Global Head of Legal for KPMG International since October 2016. As such he is responsible for the development, networking and market positioning of KPMG Legal services at global level. KPMG member firms may render legal services where authorized by law, with full observance of relevant local regulations. Legal services may not be offered to SEC registrant audit clients and/or affiliates or where otherwise prohibited by law.
As Partner for KPMG in Switzerland, a strong focus of Jürg’s work is on private clients. This includes in particular the analysis of financial products from tax and legal aspects as well as the tax-efficient structuring of assets, succession and estate planning. Furthermore, Jürg is engaged in the international regularization of undeclared assets in Swiss bank accounts. Due to his experience in the private banking sector he advises the banks management and the bank’s customers in the transformation process from an offshore to an onshore banking model.
Lawyer Monthly got back in touch with the team at Phillips & Associates, and this month we speak with Gregory W. Kirschenbaum who is an experienced litigator who advocates zealously on behalf of his clients’ civil rights in their places of employment. He touches on disability discrimination and what rights employees have in New York when they request accommodation for their wellbeing.
In general, what is disability discrimination? Why is it so prevalent in the workplace?
Disability discrimination can be slightly more complex in definition than other forms of discrimination. We have found that navigating the maze of different definitions can cause confusion among employees and employers about who is a protected individual.
Generally, in the workplace context, disability discrimination occurs when, because of his/her disability or perceived disability, an employee is (i) treated worse by his/her employer, (ii) subjected to a hostile work environment, and/or (iii) not provided with a reasonable accommodation.
For the Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL), an employee must have a disability, or be perceived as having a disability, and be subjected to “severe or pervasive” comments that adversely impacts the work environment. However, under the New York City Human Rights Law (NYCHRL), as long as the employee is subjected to more than a “petty slight or trivial inconvenience,” a viable claim of a hostile work environment claim may exist.
The short answer is no, an employee cannot be directly fired for having a disability or requesting a reasonable accommodation.
To make a prima facie case of disability discrimination (separate from a hostile work environment) an employee must show a number of things. First, the employer must be subject to the statute (15 or more employees under the ADA, four or more employees under the NYSHRL and NYCHRL). Next, the employee must have, or be perceived as having, a disability which is recognized under the relevant statute. Third, the employee must be qualified to perform the essential functions of their job with or without a reasonable accommodation. Lastly, the employee must suffer an adverse employment action due to their disability.[1]
Even so, there are hurdles along the way to make out a viable claim of disability discrimination. For instance, each statue defines a disability differently. By way of example, under the ADA, a disability is defined as “a physical or mental impairment that substantially limits one of more of an individual’s major life activities.”[2] Although that definition seems daunting, a major life activity has been further defined as “functions such as caring for oneself, performing manual tasks … and working.”[3] In contrast, mostly anything can be a disability under the NYSHRL and NYCHRL. In fact, under both statutes, an employee need not show that a major life activity is affected by their disability.[4]
Moreover, reasonable accommodations must be provided to employees unless the accommodation renders an “undue hardship” on the employer. Undue hardships are typically unreasonable disruptions to an employer’s business or high cost. Yet, if an employer denies a reasonable accommodation without an undue hardship, a violation may have occurred. Similarly, employers have to engage in an interactive process and cannot simply deny a reasonable accommodation while not providing a reason or allow the employee to alter his/her request.[5]
Nevertheless, employers cannot plead ignorance of the law. If they are aware of an employee’s disability, or perceive an employee as disabled, and treats him or her differently, there may be a violation.
Following on from the above, do you think there are common disabilities that employers often disregard?
We have not found any particular type of disability that is disregarded by employers more than others. Likewise, disability discrimination occurs across the spectrum of size and types of employers. Both Fortune 500 companies and small businesses can fail to abide by their responsibilities to their employees.
However, the longer answer is a bit more complex due the vagaries of disability law.
What types of accommodations are available to employees in the workplace? What is the procedure for getting an accommodation?
The type of accommodation available to an employee really depends on what the employee’s disability is, the nature of the job, and position held. For example, if someone has a back injury and they have been told to not lift more than 15 pounds, that could be a reasonable accommodation, unless that person’s job is to lift nothing but 15-pound or heavier boxes each day. Likewise, a modified keyboard or desk may be reasonable for someone with carpal tunnel syndrome. Of course, if an employee suffers from depression, a modified keyboard or desk may not be a reasonable accommodation. Whether or not an accommodation is reasonable is a very fact specific inquiry.
The first step in getting an accommodation is usually informing the company of one’s disability. We always encourage people to do this in writing. After that, the company may ask for medical documentation to corroborate the extent of the disability. This is fairly standard and if a doctor has diagnosed an employee with a medical condition, they should have that doctor write a note. However, it is important to understand that just because someone has a disability, and their doctor says they cannot do something, that does not necessarily mean the employer has to agree or provide the precise accommodation requested.
Nevertheless, as mentioned, an employer must engage in an interactive process with an employee concerning their disability and reasonable accommodation request. Finally, beginning 15 October 2018, the NYCHRL requires an employer to engage in a “cooperative dialogue” and provide a written final determination granting or denying one’s reasonable accommodation request.[6]
Lastly, as shown, disability discrimination cases can be very complex so the best thing to do is to consult with an attorney if you believe your rights are being violated.
Can you be fired for having a disability or asking for a reasonable accommodation? What if the condition prevents the employee from doing their job to the capacity they once were able to?
The short answer is no, an employee cannot be directly fired for having a disability or requesting a reasonable accommodation. An employer who directly terminates an employee for either of those reasons has likely discriminated or retaliated against the employee. However, the longer answer is a bit more complex due the vagaries of disability law.
As noted, an employer does not need to provide a reasonable accommodation if the requested accommodation presents an “undue hardship” on the employer. Again, this is a very fact specific inquiry. However, under the ADA, NYSHRL, and NYCHRL factors generally looked at include the nature and cost of the requested accommodation, the impact the accommodation would have on the employer, the size and finances of the business, and the type of work done by the company.[7]
However, there is good news for New York City employees. Under the NYCHRL “there is no accommodation (whether it be indefinite leave time or any other need created by a disability) that is categorically excluded from the universe of reasonable accommodation.”[8]
Nevertheless, if an employee suffers from a disability or requests an accommodation which makes it impossible for them to perform the essential functions of their job, he/she may be at risk of termination. For instance, if an employee is a professional wrestler, it is most likely not a reasonable accommodation to grant a 15-pound weight lifting restriction. That is because it is an essential function of their job to lift more than 15 pounds. In that scenario, the requested accommodation may not be reasonable and the employee may be at risk of termination.
Disability cases, in particular, are extremely fact specific and employees should always consult with an attorney if they believe they are being harassed, discriminated against, or not being provided with an accommodation.
Is there anything else that employees should be aware of?
In addition to being protected by the ADA and relevant local statutes, individuals that (i) worked for an employer for more than 1 year, (ii) worked more than 1,250 hours in the past calendar year for the employer, and (iii) work for an employer with more than 50 employees in a 75-mile radius of their worksite, may be covered by the Family Medical Leave Act (FMLA). The FMLA provides an employee who suffers from a “serious medical condition” with 12 weeks of unpaid leave, which can be taken all at once or intermittently. At the end of such leave, an employer must restore the employee to their previous position or an equivalent position with equivalent pay and benefits.[9]
Moreover, New York State provides for paid family leave, which also covers leaves of absence from work due to one’s disability. The law passed in New York is one of the most progressive to date and is still fairly new. Similar to the FMLA, the New York State law provides a qualified employee with a right to return to the same or comparable job at the end of their paid leave.[10]
Lastly, as shown, disability discrimination cases can be very complex so the best thing to do is to consult with an attorney if you believe your rights are being violated.
Mr. Kirschenbaum was recognized as a “Rising Star” in 2017 and 2018 by New York Super Lawyers for his contributions in employment discrimination law. Mr. Kirschenbaum has also been awarded the “Lead Counsel” rating in Labor & Employment Law for 2018. Along with his trial experience, he has litigated numerous cases in both State and Federal courts handling all types of discrimination cases, as well as wage and hour claims. In 2015, he was co-trial counsel that won a $2.2M jury verdict in a race discrimination case in the Southern District of New York.
[1] Dooley v. JetBlue Airways Corp., 636 Fed. Appx. 16, 21 (2d Cir. 2015)
[2] 42 U.S.C. §12102(1) (2018)
[3] 42 U.S.C. §12102(2) (2018)
[4] Marquez v. Starrett City Assocs., 2017 U.S. Dist LEXIS 161800, *13 (E.D.N.Y. Sep. 30, 2017)
[5] Miloscia v. B.R. Guest Holdings LLC, 928 N.Y.S.2d 905, 913 (N.Y. 1st App. Div. 2011)
[6] N.Y. Admin. Code §§8-102, 8-107(28) (2018)
[7] 42 U.S.C. §12111(10)(B) (2018); N.Y. Exec. Law §296(3)(b) (N.Y. Consol. 2018); N.Y. Admin. Code 8-102(18) (2018)
[8] Haight v. NYU Langone Med. Ctr., 2014 U.S. Dist. LEXIS 88117, *47 (S.D.N.Y. June 27, 2014)
[9] 29 U.S.C. §2614(a)(1)(2018)
[10] https://www.ny.gov/sites/ny.gov/files/atoms/files/PaidFamilyLeave_EmployeeFactSheet.pdf
Airbnb is one of the largest online marketplace and hospitality services but what happens if you’re injured whilst renting one of its properties? Rob Dempsey, personal injury lawyer at Roythornes Solicitors, questions the legal issues surrounding the holiday phenomenon.
Last week Airbnb – the rental model which has inarguably transformed travel - celebrated its tenth anniversary and held a big birthday bash where the founders announced their vision for the next ten years: to hit the target of one billion guest nights.
If you’re unfamiliar with the Airbnb business model, the simplest explanation is that the company owns no real estate but instead acts as a broker between the holidaymaker and the owner of the property. However, this arrangement and the ever-increasing number of guest nights each year begs the question of what happens if someone is injured whilst staying in Airbnb accommodation?
The growing attraction of Airbnb is that it allows holidaymakers to travel across the world obtaining an authentic experience of various cultures rather than staying at a hotel. However, if you are injured whilst staying in Airbnb accommodation there are four main factors to consider.
One would expect there to be a contractual relationship between the holidaymaker and Airbnb as your money is directly transferred to them. However, within the Terms of Service – which customers rarely read – Airbnb states that the contractual relationship exists solely between the holidaymaker and the owner of the property.
The Terms of Service also restrict Airbnb’s liability for injuries to the extent that Airbnb could avoid all responsibility. Given that the contact between the holidaymaker and the owner of the property is often limited or non-existent it can be challenging to seek a remedy against the property owner.
In the UK, Airbnb guests would be classed as ‘lawful visitors’ as defined in the Occupiers Liability Act, and therefore be owed a duty of care. The responsibility is therefore on the ‘occupier’ to do what is realistic to make the premises reasonably safe.
Consequently, if the holiday was booked through a third party, such as Airbnb, it may be difficult to identify who has control of the premises and is therefore liable if injury occurs.
Arguably both Airbnb and the owner of the property would owe the holidaymaker a duty of care. However, the key test here would be one of foreseeability. Airbnb could feasibly argue it was not foreseeable that injury would occur as they would not have knowledge of the condition of the property. Again, the onus would be put on the owner of the property rather than Airbnb.
If a claim were pursued against an occupier of a property - either in contract, in negligence or under the Occupiers Liability Act - any claimant would want to be assured that the potential defendant has insurance in place.
In normal circumstances, properties would have home insurance which would indemnify the owner against a claim for injury. However, business insurance may be required as by allowing a property to be used by Airbnb, a business relationship is created. This may invalidate any policy, again leaving the injured holidaymaker potentially without a remedy.
Potential claims get even more complicated when staying in a foreign Airbnb rental as there are added complications as to which jurisdiction would apply if a claim was pursued. For example, the purchase could be made in the UK, with payment being made to a US-based company, for a holiday in Italy.
We have already established that any claim would be against the owner of the accommodation itself rather than Airbnb and therefore in these circumstances local law would apply. However the standard of care will vary from country to country and the costs of pursuing a claim may be so prohibitive to the extent that a holidaymaker may not have a remedy at all.
As Airbnb looks forwards to another ten years it’s clear that its popularity will continue to soar and provide a generally very positive experience for thousands of holidaymakers every year. However, the above risks should not be discounted completely and hopefully highlight the importance of checking the Terms of Service and taking out insurance prior to travel.
