Understand Your Rights. Solve Your Legal Problems
Congratulations, you have survived the interview and been offered a job – now is the time to kick-start your legal career. Moving into the world of work may seem daunting; this might be your first ‘proper’ job since you graduated. Here are six top tips to ensure you are workplace ready, courtesy of Francine Ryan, senior lecturer in law and member of the Open Justice Centre at The Open University.
Will Rogers said, "You never get a second chance to make a first impression." So in the first few weeks of your new job, it is important to make a good impression. You need to present yourself as professional, dress appropriately, smile and have a positive attitude. Treat everyone with courtesy and politeness, remember and use people’s names. You will be given lots of different tasks to do, no matter how big or small the task is, make sure you do it to the best of your ability the rest of your team will be relying on you to be conscientious and diligent.
It is important to demonstrate you are reliable – be organised, be on time and meet deadlines. If you are someone who struggles with organisation, make sure you write everything down or make the most of free apps like Evernote or Post-it. Keep your diary up to date, check it each morning so you know if there are meetings planned for that day. Your time will not always be your own; you need to be flexible and be prepared to respond quickly if you are asked to work on a new matter.
If you are not sure about anything ask for clarification. Sometimes people feel nervous about asking questions, but it is much better to ask than to make assumptions and it will save you a lot of time in the long run. It is also important to listen! You need to concentrate on what is being said rather than passively hearing the message. Make notes to help you remember, as this will help you avoid any miscommunication and the need to ask unnecessary follow-up questions.
All through your professional life you will be learning, but never more so than in your first job. You have to learn how to manage your time, work with new colleagues, understand the IT system and the culture of the organisation. There may also be opportunities to further your education make sure you take advantage of any additional training. Sometimes it can feel overwhelming when you start a new job, but don’t worry, as you get used to the job you will start to feel more comfortable and the feeling will pass.
It is very likely that your work is going to be corrected and you are going to receive both positive and negative feedback. It is part of the learning process you are not going to get it right every time. It is never easy to take criticism, but don’t be defensive and try not to take it personally. Remember that the purpose of constructive feedback is to help you improve. Listen, take notes and respond positively.
COVID-19 has led to many people working remotely and in the future more of us could be working from home on a permanent basis. Technology is driving communication and work processes – employees are often contributing to projects from different locations and across different time zones, meaning there is a need to collaborate virtually. Working as part of a virtual team can create challenges, especially when you are new to an organisation. If you are not seeing your work colleagues in person, your ability to communicate effectively virtually is critical. Think carefully about what you write in emails, in conversations on platforms such as Microsoft Teams. What you write can be open to interpretation and you don’t want to create the wrong impression. If you are attending online meetings from home, think about what your colleagues will see in the background if you have your camera on. You want to be projecting a professional image, so even if you are working at home you should think about what you are wearing and the impression that will be create.
There is a lot to take in when you start a new job, so it is understandable if you feel a bit apprehensive, but embrace the opportunities, learn from others and enjoy the challenge. This is just the start of what hopefully will be a rewarding legal career.
The Divorce, Dissolution and Separation Bill cleared its first hurdle in the House of Commons by 231 votes to 16 against.
The Bill proposes significant changes to UK divorce law, most notably the removal of any need for a partner to prove that “adultery, unreasonable behaviour or desertion” has taken place to secure a divorce. Under current UK law, the only other way a person can obtain a divorce without a spouse’s consent is to have lived apart for five years.
The ability of a spouse to contest a divorce – which is invoked in only 2% of cases – would also be scrapped under this new legislation.
This potential shake-up of divorce law follows a high-profile case in 2018, wherein Tini Owens lost a legal battle to divorce her husband of 40 years because they had not lived apart for the required five year period.
In spite of the small rebellion from Tory lawmakers, with one decrying the “effective abolition of the marriage vow”, the Bill has generally been well-received. Sarah Kelly, partner in the family law department of Thomas Snell & Passmore, commented: “It is already best practice for family lawyers to try and keep the divorce process as amicable and non-confrontational as possible. It is hoped that the proposed bill will make it much easier for that to happen.”
The Bill has already been passed by the House of Lords, and it is possible that it will receive Royal assent within the week.
Legal education and training can sometimes seem to be focused on absorbing legal knowledge and developing specific legal skills, for example, advocacy or legal research. While such knowledge and skills are important, it is vital not to overlook other wider skills, such as empathy, which are valuable both in legal practice and in life generally. Emma Jones, Senior Lecturer in Law at the University of Sheffield, explains what makes empathy an invaluable skill for legal professionals.
Empathy is commonly understood as putting yourself in someone else’s shoes. In other words, imagining what another person is thinking and feeling. In fact, there appears to be two types of empathy. First, there is a cognitive form of empathy, where you use your thoughts to think from the perspective of someone else. Second, there an affective or emotional form of empathy, where you feel something of what you imagine that person is experiencing. The strongest forms of empathy are likely to combine the two – you have an emotional sensation but also remain aware that those emotions are not based on your own experience.
Having empathy is very helpful as a law student. For example, imagine you are working on a project in a group and starting to feel frustrated that one group-member isn’t contributing fully. Using empathy to think about why that individual is behaving in that way can help you to take a constructive approach to resolving the issue. It could lead to you having a positive conversation with that person and setting in place practical strategies to enable them to contribute more. Even if these don’t work, it can help you to manage your frustration and appreciate the circumstances that have led to that person’s behaviour.
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More widely, it can help you when studying law, particularly case law, to connect with the human elements involved. It reminds you that behind every case report there are people whose lives may be affected financially, emotionally or in myriad other ways.
If you are thinking of going on to work in the legal profession, or undertaking any clinical legal education, empathy is also important. In fact, the Bar Standards Board’s Professional Statement for Barristers refers to the need to know how and where to demonstrate empathy (3.4). All legal professionals need to understand the role of empathy. This is partly because it is a valuable tool to assist in developing a strong relationship and rapport with your clients. It is also to ensure you are aware of when your feelings of affective or emotional empathy could start to contribute to a danger of over-stepping professional boundaries. In other words, when empathy changes to sympathy.
When selecting a new Supreme Court Justice, former US President Barack Obama also argued that empathy is an important quality for judges, because it enables them to understand the impact of justice upon individuals’ circumstances.
More broadly, throughout life, empathy is vital. It can equip you to deal with a wide range of people, such as work colleagues. It can also enhance your relationships with family and friends by helping you to understand and respect their viewpoint more.
All legal professionals need to understand the role of empathy.
In addition, some researchers on empathy have argued that it is necessary to act as the spark which motivates people into performing kind and compassionate acts for others. For law students and legal professionals, this could include volunteering to become involved in pro bono work (‘for the public good’) or campaigning on issues relating to social justice and fairness.
Even if you don’t feel like you’re a naturally empathetic person, there is evidence that empathy is a form of skill that can be taught and developed. A good starting point is to practice becoming more aware of your own and other people’s emotions. This can involve observing physical cues (a smile, a frown, hand movements) and also listening to their tone of voice. Building time into your schedule to reflect on your interactions with others, to think about the situation from the other person’s point of view and to consider how they experienced the situation, can also be helpful.
Overall, empathy is a vital skill and one which can be learnt and developed. Starting when studying law will not only help in the short term, but also be valuable after graduation, whether in your work as a legal professional, or in whatever other path you chose.
While a new conciliation platform has been created before the Paris Commercial Court, in order to deal with the very high number of claims filed by businesses against each other on the ground of non-performance due to COVID-19, the British Cabinet Office published on 7 May 2020 a guidance in which it encourages "responsible and fair behaviour is strongly encouraged in relation to (…) making, and responding to, force majeure, frustration, change in law, relief event, delay event, compensation event and excusing cause claims". Sylvie Gallage-Alwis and Gaëtan de Robillard, respective Partner and Associate at Signature Litigation, explore the implications of this new guidance.
Force majeure and COVID-19 are indeed two concepts that have often been seen together these past weeks, businesses being stuck when it came to manufacturing, delivering or paying for instance. Yet case law was not there yet, and the only decisions in France where COVID-19 was recognised as being a force majeure event were rendered in very specific contexts, such as immigration proceedings. Up until now, businesses were therefore notifying force majeure and enforcing their force majeure clauses without any concrete decision handed down in a commercial scope in France.
The order handed down in summary proceedings by the Presiding Judge of the Paris Commercial Court on 20 May 2020 in a dispute between Total Direct Energie ("TDE") and Electricité de France ("EDF") alongside Réseau de Transport d'Electricité ("RTE"), in the presence of the French Independent Electricity and Gas Association ("AFIEG") has now changed this.
Up until now, businesses were therefore notifying force majeure and enforcing their force majeure clauses without any concrete decision handed down in a commercial scope in France.
While the order of 20 May 2020 is particularly interesting as it relates to the system consisting of the Regulated Access to Historic Nuclear Electricity, it provides an interesting example of the recognition of COVID-19 as a case of force majeure. It also illustrates the attention that the courts give to the wording of contractual force majeure clauses and the discussions that would have taken place had the ground of the action been hardship (imprévision), a concept which was introduced into French Law in 2016.
The dispute concerns the terms of Article 10 of the framework agreement binding EDF to TDE, according to which force majeure refers to "an extraneous, irresistible and unforeseeable event making it impossible to perform the parties' obligations in reasonable economic conditions".
There is somewhat of a similarity between the words "in reasonable economic conditions" and hardship, which is defined as a change in unforeseeable circumstances rendering "the performance of the agreement excessively costly for one of the parties".
Based on the definition of force majeure of Article 10, the Judge considered that "the spread of the virus is obviously extraneous to the parties, is irresistible and was unforeseeable, as proven by the sudden nature and extent of its appearance". This "obvious" nature was not being discussed, which explains the brevity of the reasoning compared to the case law relating to the H1N1, Dengue Fever and other epidemics, which have not been recognised as force majeure cases by French Courts.
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Here, it is the spread of the virus that is deemed a case of force majeure, not the governmental measures. This will probably trigger discussions in other cases, in particular when the question of knowing when the spread started and stopped.
TDE notably argued that the "governmental measures applied" would have triggered a "sudden decrease in consumption", creating a situation where it had to accept the delivery of ordered volumes of electricity and resell most of them at a loss due to the impossibility to store electricity.
As for EDF, it notably argued that the pandemic and the resulting decrease in energy consumption did not prevent TDE from performing its obligations regarding, in particular, the acceptance of the ordered volumes of electricity and the payment thereof.
Here, the Judge carried out a factual analysis to rule that "this results in [TDE] observing significant, immediate and permanent losses over a period of time beyond its control", further considering that the occurrence of a case of force majeure enables to "assume a disruption affecting prior economic conditions resulting in the occurrence of significant losses arising from the performance of the agreement".
Here, the Judge carried out a factual analysis to rule that "this results in [TDE] observing significant, immediate and permanent losses over a period of time beyond its control"
This reasoning can be interpreted as the implementation of a presumption according to which a case of force majeure necessarily leads to a more costly performance, the parties having to discuss the extent of the acceptable risk.
This case law shows that case-by-case analysis will be the norm when it comes to the interpretation of the contract. The review of the clauses is, therefore, a must do before relying on the now fashionable concept of force majeure. If no such clause is in the contract, businesses will have to refer to statutes and case law. This may change the whole outcome of the matter. Indeed, what if the EDF/TDE contract did not make any mention to the concept of "unreasonable economic circumstance"?
This decision also shows that there will be a case-by-case analysis when it comes to the impossibility to perform and on the economic impact of a performance, if the latter is possible. In this respect, interestingly, the parties have decided not to put forward the fact that their financial health was not endangered with the performance or non-performance of this contract. This encouraged the Judge to only focus on the contract itself and on its economic viability independently from any other consideration. One could question whether such approach is aligned with the guidance provided by both the French and British Governments which have asked businesses to act fairly, in a general way, and not just, contract per contract.
During a preliminary settlement approval hearing held on Thursday via video call, US District Judge James Donato refused to sign off on Facebook’s $550 million data privacy settlement with a class of Illinois users, saying that lawyers must first explain why the deal only provides 1.25% of the compensation to which class members could be entitled under the state’s biometric privacy law.
Nimesh Patel, the lead plaintiff, sued Facebook in 2015, claiming that the social media company mapped users’ faces for its “Photo Tag Suggest” function in 2011 without those users consent, while also failing to inform them about how long their data would be stored, breaching the 2008 Illinois Biometric Information Privacy Act (BIPA).
BIPA specifies a $1,000 penalty for each negligent violation of this statute and $5,000 for each knowing violation. As the class comprises around seven million Illinois Facebook users, the penalty could been as much as $35 billion.
Judge Donado remarked on this during the hearing, asking why the greater damages amount of $5,000 was not pushed for in the settlement. As Facebook paid a $5 billion fine to the Federal Trade Commission last year to settle a claim that it had deliberately deceived its users about their ability to control their private information, Donado argued that this could be counted as sufficient evidence that they knowingly violated BIPA in this case.
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“It looks to me that what Facebook did to violate the BIPA may also have been a violation of that prior FTC consent decree, in which case you have a pretty good argument that this is an intentional or reckless violation of BIPA that would warrant $5,000,” he said. “They’re taking what is essentially a 98.75% discount off what the IL said should be the damages.”
Donato ordered lawyers on both sides to address his concerns within the next few weeks.
Dorsey & Whitney announced this week that it will end its Minneapolis City Attorney’s programme in response to the death of George Floyd in MPD custody.
The programme, which has been in place since 1978, saw the 500-lawyer firm lending its staff to assist the Minneapolis City Attorney’s office in the prosecution of misdemeanour cases.
Citing studies demonstrating that misdemeanours disproportionately affect African Americans, the firm said that it came to the decision to end its involvement with City prosecutors. “We must be part of the solution, and that means concrete action to assist the community and a re-examining of our own programs and practices,” managing partner Bill Stoeri said in a statement.
“Dorsey & Whitney shares the sadness and the outrage expressed throughout Minnesota and the world over George Floyd’s killing, as well as over the long history of such injustice.”
The firm also announced its intention to refocus on pro bono work, looking to provide legal services to communities affected by the current civil unrest in the US. Dorsey & Whitney will also make steps towards ending issues of diversity and inclusivity in the legal industry.
Responding to the news that Dorsey & Whitney was terminating the partnership, Minneapolis City Attorney Erik Nillson said that the firm’s move was “an unfortunate decision, but one that I respect.”
“The partnership proved beneficial to both the Dorsey law firm and the Minneapolis City Attorney’s Office for more than 40 years,” he said.
Simon Fisher, Partner in the family law team at Gardner Leader LLP solicitors, offers his thoughts to Lawyer Monthly on the changes he expects COVID-19 to bring to family law.
Law firms like Gardner Leader LLP have had to swiftly adapt to a new normal way of working, operating remotely to support clients using progressive technology like video conferencing. Gardner Leader also introduced a secure and confidential app where clients can communication with solicitors remotely.
Despite firms having to close their offices to visitors in line with the government guidance, divorce solicitors up and down the country – including Baroness Shackleton of Belgravia – predicted a surge in divorce enquiries caused by the pressures of self-imposed confinement.
This surge appears to have occurred sooner than imagined. Searches for 'I want a divorce' remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.
Wealthy individuals using the opportunity of a lowered asset base to get a more advantageous divorce before the economy bounces back, and the pressure of quarantine and financial uncertainty, are among the reasons given by solicitors for enquiries increasing during this period.
Searches for 'I want a divorce' remain popular, with some firms claiming to see a 154% increase in Google searches and a 40% increase in divorce enquiries immediately after lockdown.
These figures suggest that for those in a struggling relationship – where there’s no way back – lockdown has not restricted couples from taking the first steps in the divorce process. Furthermore, as lockdown restrictions begin to ease, we too have seen enquiries at Gardner Leader increase by 48% as the UK follows suit with other parts of the world such as Shenzhen, China. With the pandemic ebbing, in April around 3,500 divorces were reported in Shenzhen, accounting for around 84% of marriage registrations, compared to a previously yearly average of around 30%.
As the UK continues to ease out of lockdown, UK law firms are bracing for another wave in divorce enquiries.
Where lockdown has had its most damaging impact is to those in abusive relationships. According to the WHO, reports of domestic violence in Europe rose by 60% in April compared to the same month last year, some attributed to the stress and anxiety of lockdown.
There are mechanisms to break lockdown restrictions for victims. The courts are open for urgent non molestation and occupation order applications (albeit via video or telephone) but as the data from the WHO shows, COVID-19 is sadly still causing incidents to increase.
Individuals can often find themselves trapped in struggling relationships but without an ability to move on. In such a difficult time, associated problems such as mental health can often come to the forefront. However, being confined with limited prospect of a resolution at this stage could have a deep effect on parties both now and in the future. The full effect is unknown but the warning signs are there.
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One positive outcome from lockdown is that it has forced parties to consider alternative options to the traditional court process to resolve their dispute. Rather than waiting for a hearing that might not take place, parties can use ADR methods such as Arbitration, Collaborative Law or private FDRs; options that were available before COVID-19 but were often wrongly treated as secondary options by lawyers and clients alike. This can no longer be the case and the inevitable use of these options is only a positive to keep disputes out of the courts and to reduce costs.
Meanwhile, court hearings have also been modernised, with the courts and judges providing guidance as to the digital filing of bundles, and the provision for future remote hearings including some precedent orders by High Court Judge of England and Wales, Mr Justice Mostyn. In fact, during the initial weeks of lockdown, video and telephone hearings including Family Dispute Resolution hearings were still taking place.
The trouble is, the swift move by some courts to commendably adapt to a new remote way of life has left a slight confused and inconsistent family court system, with various family court locations around the UK adopting contrasting approaches. Some hearings are taking place on paper, some by telephone or video and some proceedings are just generally being adjourned. This depends on the location, staffing and availability of the Judiciary, among other factors.
Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means. This causes uncertainty for family law practitioners and clients alike, particularly as family lawyers cannot give a clear answer if the hearing will proceed or not. This likely won't get any better in the future once lockdown is lifted; the courts will likely be backlogged with hearings, with lawyers wondering how or when these matters will be listed.
Often, hearings taking place are organised by the court the day before or morning of the hearing by different remote means.
Then there’s the digitalisation of courts. While recent steps were underway with digitalisation of online divorce and financial orders, the family courts have often been reluctant to use remote hearings – despite being used successfully in civil hearings for many years.
The COVID-19 lockdown has bought the use of remote hearings to the forefront. Not all hearings have taken place as scheduled, and some like final hearings need parties in attendance. However, there have been a number of successful video and remote hearings showing that this is something that could be implemented to save legal and court costs and time.
Let’s hope this is the case, so at least we can say one key positive change has emerged from the disruption and turmoil inflicted on the family legal system by COVID-19.
These injuries include occupational sickness, broken bones, psychological injuries, and worsening of pre-existing illnesses.
As a result of these injuries, you are required to adjust your lifestyle, which can be quite overwhelming. Furthermore, you have to deal with the enormous medical expenses that threaten to throw your life into disarray. If you find yourself in such a situation, here are five reasons to hire a personal injury lawyer to help you get suitable compensation for the injuries sustained at the workplace.
A personal injury lawyer will be your advocate as you negotiate with insurance companies and your employer. During these negotiations, employers will be trying to rid themselves of any liability, whereas the insurance company tries to pay as little compensation possible to protect their profit margins. Fortunately, an experienced injury lawyer will make sure to best represent your interest and get the best deal possible.
Furthermore, their knowledge of the current laws on employee compensation helps them make sure your rights are not violated.
Injury attorneys have specialised in injury cases and boast immense experience handling cases that are identical to yours. They are knowledgeable about the law, and have the most useful information, and ways of building a strong case. They also know what the procedures to follow, paperwork filing procedures, as well as legal matters such as the statute of limitations. Therefore, with their help, you can ensure you are not denied your entitled compensation due to any technicality or paperwork mistakes.
Injury attorneys have specialised in injury cases and boast immense experience handling cases that are identical to yours.
Plaintiffs who hire injury attorneys to represent them get higher injury compensation compared to those who opted to represent themselves. Therefore, it would be best if you hired an injury lawyer to negotiate a suitable compensation offer on your behalf. This is especially important because the employers usually present an offer lower than what they would pay if they made ongoing payments.
However, this is not the case if a personal injury lawyer represents you. This is because they weigh your case and establish your medical bills plus the associated wage losses. In addition to this, they also help establish the right payment for less quantifiable things such as general damages, pain and suffering, stress, physical discomfort, and the injury’s impact on your life. They then use this total cost when at the negotiation table to determine the best compensation for all your troubles.
Employers are notorious for not offering worthy compensation for an injury sustained at the workplace. This is something you need not worry about if you hire a skilled attorney.
Getting an injury can be very traumatic since you have to deal not only with the physical pain but also mental and emotional distress. It may be due to the mounting medical expenses and loss of wage as your employer deems you unproductive. This might be worse, especially if you suffered a permanent disability.
In such cases, you are eligible for a single lump-sum payment or weekly payments as compensation for lost wages. Nevertheless, this is not always the case since insurance firms deem this to be very costly. They thus do anything possible to make sure you do not get a fair compensation offer.
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In such scenarios, you should hire an injury lawyer who will act on your behalf during these negotiation settlements. Therefore, you get to focus on the most important thing, which is getting better and try living a normal life.
If you sustain an injury in the workplace, this is not your fault but that of your employer for not ensuring a safe and healthy working environment for the workers. However, some employees do not take it kindly when you decide to file for workers’ compensation claims. They instead retaliate by demoting you, lowering your salary, reducing your hours, or firing you altogether.
This unlawful and unfair treatment should never be allowed in the workplace, and if you find yourself in this position, then hiring a lawyer is the way forward. The attorney will use his expertise and experience practicing law in making sure you get fair and just compensation. This will not only be for the injury but also for the harassment suffered for filing for the workers’ compensation claim.
Getting an injury is unfortunate, and gets worse, especially if it happens while in your workplace. If this happens to you, then it is the best to hire an attorney if the employer’s actions or hired insurance company prove to be unjust and uncooperative. The lawyer will make sure your complaint is not taken for granted, and you get paid a fair amount for all the pain and suffering endured.
Jérôme Herbet, Partner at Winston & Strawn, explores the history of EU rulings on crypto-assets and what these might portend for the future.
In the midst of the global COVID-19 pandemic and world lockdown, the Libra Association published a new version of the white paper supporting its Libra crypto-currency. Initially founded and supported by Facebook, Inc., and then endorsed by a number of large companies (which since inception seem to have backed away from the project), the Geneva-based Libra Association is home of a new “stable coin,” i.e., a cryptocurrency designed to be backed by a reserve of hard currencies (fiat) in an effort to stabilise the price of the “coin” by linking its value to that of its reserve.
Although the Libra Association had asked the Swiss Financial Market Supervisory Authority (FINMA) for an assessment on how the authority would classify the project (including the issuance of a “stable coin”) and guidelines were issued on 11 September 2019, other regulators and governments around the world voiced out a number of concerns about the project. The revised version of the Libra white paper contains a number of changes made to address such regulatory concerns.
Stable coins that include a reference to one or several existing legal currencies, such as Libra, pose specific issues, which were summarised in detail in the G7 Working Group report on stable coins published in October 2019 and resulted in a ban in the EU. On December 5, 2010, the EU Council and Commission jointly stated that no global "stablecoin" arrangement should begin operation in the European Union until the legal, regulatory and oversight challenges and risks have been adequately identified and addressed.
The revised version of the Libra white paper contains a number of changes made to address such regulatory concerns.
Until recently, the regulation of crypto-assets was primarily left to national initiatives, with States adopting diverging approaches. However, a fundamental distinction seemed to emerge between crypto currencies on the one hand and tokens on the other hand. As summarised by the EU Parliament in its April 2020 study on crypto-assets:
“Cryptocurrencies (or coins), such as Bitcoin and Litecoin, are those crypto-assets that are designed or intended to perform the roles of currency, i.e.to function as a general-purpose medium of exchange, a store of value and a unit of account. They are intended to constitute a peer-to-peer alternative to government-issued legal tender. Tokens, on the other hand, are those crypto-assets that offer their holders certain economic and/or governance and/or utility/consumption rights. Broadly speaking, they are digital representations of interests, or rights to (access) certain assets, products or services. Tokens are typically issued on an existing platform or blockchain to raise capital for new entrepreneurial projects, or to fund start-ups or the development of new (technologically) innovative services.”
In a number of jurisdictions around the world, the emergence of crypto-assets gave rise to specific legislative and regulatory responses aimed at addressing the most urgent issues raised by their development, albeit sometimes only partially given the difficulty to proceed with their legal qualification. In fact, all crypto-assets have different functionalities, and their inclusion within the existing regulatory framework requires a case-by-case analysis. This approach is clearly the one retained, for example, by the Swiss FINMA in its ICO guidelines published in February 2018 or the UK FSA, for whom “whether an ICO falls within the FCA’s regulatory boundaries or not can only be decided case by case. Many ICOs will fall outside the regulated space. However, depending on how they are structured, some ICOs may involve regulated investments and firms involved in an ICO may be conducting regulated activities”.
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Most of the legislative and regulatory work so far thus focused on investor protection in the context of ICOs and, to a lesser extent, money-laundering issues. For example, in France, the PACTE (Action Plan for Business Growth and Transformation) law was adopted in April 2019 and established a legal framework for fundraising via the issuance of virtual tokens (ICOs) and digital asset service providers (“DASPs”). In the United States, the approach was rather to focus on substance over form with the consequence that US securities laws will be applicable for most ICOs. As stated by the SEC Chairman in a December 2017 statement, “replacing a traditional corporate interest recorded in a central ledger with an enterprise interest recorded through a blockchain entry on a distributed ledger may change the form of the transaction, but it does not change the substance”. Based on this approach, the SEC initiated several enforcement actions against ICO issuers that had failed to register their offering in accordance with US securities laws.
To address the more general issues raised by crypto-assets in the EU, on 19 December 2019, the European Commission launched a public consultation into a Directive/Regulation establishing a European framework for markets in crypto-assets.
The introduction to the consultation notes that crypto-assets have “the potential to bring significant benefits to both market participants and consumers” but also acknowledges the potential difficulties presented, including the challenge to financial stability that arises from the emergence of “stablecoins” as a new subset of crypto-assets.
The consultation builds on advice obtained from the European Banking Authority and the European Securities and Markets Authority on the applicability and suitability of the existing financial services regulatory framework to crypto-assets and will inform the Commission services’ ongoing work on crypto-assets. The consultation document notes that this includes a possible common regulatory approach at EU-level for crypto-assets that are not currently covered by EU legislation.
The consultation document is a working document and does not constitute a formal proposal by the European Commission. However, the consultation document provides a useful indication of the main areas of focus for the Commission and areas identified for potential regulatory reform:
The consultation document is a working document and does not constitute a formal proposal by the European Commission.
Concurrently, the implementation in the EU in the Anti-Money Laundering Directive (“AMLD”) contains a number of changes which will further impact crypto-asset professionals. The amendments to the previous iteration of the AMLD include:
The prospect of forthcoming changes to money laundering rules has caused a number of crypto firms to reconsider their operations. For example, crypto payments start-up Bottle Pay shut down its operations in December 2019, in anticipation of the entry into force of the revised version of the AMLD. Similarly, crypto mining pool Simplecoin and bitcoin gaming platform Chopcoin were reported to have closed their operations in December 2019, citing the new rules as the catalyst for closure.
On 24 March, a day after lockdown came into force, The President of the Family Division, Sir Andrew McFarlane, issued fresh guidance to provide clarity and certainty on contact arrangements for separated families during the lockdown period. Lindsay Yateman and Naomi Lelliott, specialist divorce and family lawyers at Excello Law, analyse this guidance and how it has impacted families.
The key point in the guidance states: “Where parents do not live in the same household, children under 18 can be moved between their parents’ homes.” This is an exception to the government’s previous “Stay at Home” requirement in relation to the coronavirus (COVID-19) pandemic. The Stay at Home Rules stated that: it is no longer permitted for a person (include children) to be outside their home for any purpose other than essential shopping, daily exercise, medical need or attending essential work.
Although the government’s headline message has since been revised to a more nuanced “Stay Alert”, and there is now greater freedom to leave the house for work or some leisure activities, the accompanying Public Health advice remains largely unchanged in terms of social distancing.
Sir Andrew McFarlane’s guidance still remains valid: children can move between homes where it is safe to do so, having consideration for the latest Public Health rules and guidance. The decision of whether or not a child can move rests with that child’s parents, having sensible regard to the circumstances, including the child’s health, the risk of infection and whether any recognised vulnerable individuals live in either household.
Sir Andrew McFarlane’s guidance still remains valid: children can move between homes where it is safe to do so, having consideration for the latest Public Health rules and guidance.
The guidance makes it clear that responsibility for deciding where a child should be, and for how long, lies with the parents and not the court. Ideally, what is in the child’s best interest should always be the overriding consideration. But in practical terms, it is inevitable that problems may arise in some situations, particularly where there is a history of pre-existing parental conflict.
In circumstances where a parent is concerned about their child being moved so that it threatens to contravene current Public Health advice, the parent can exercise parental responsibility and vary any arrangement to one that is considered safe.
This may bring into question the validity and appropriateness of a Child Arrangement Order that has been decided by a court determining where a child will live, who that child can spend time with and for how long.
In the current context, if a parent is prevented from seeing a child for an unreasonable period of time and feel that this is unjustified, they may consider making a Child Arrangements Application to the court in order to regulate the time.
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Self-isolation periods are also covered by the guidelines. Should the parent with whom the child lives say that the child is exhibiting symptoms of COVID-19, the self-isolation period should be observed, but following that the child would then be free to see the other parent. During the self-isolation period, the parent with whom the child lives with should allow other forms of indirect contact: regular Facetime, telephone calls or Skype.
As the lockdown gradually begins to ease, it remains an extremely difficult time for everyone. In this context, the paramount concern for both parents must be the safety and welfare of the child and those around them. In the words of Sr Andrew Macfarlane is his guidance: “The country is in the middle of a Public Health crisis on an unprecedented scale. The expectation must be that parents will care for children by acting sensibly and safely when making decisions regarding the arrangements for their child and deciding where and with whom their child spends time.”
