Doesn’t time fly? On 1 January 2021, Israel became the first country to vaccinate at least 10 per cent of its population against covid-19; and into effect came the African Continental Free Trade Area, the EU–UK Trade and Cooperation Agreement, key provisions of the California Privacy Rights Act of 2020 and the PRC Civil Code – arguably the most extensive legislative document in China to date. While some of these events may seem a distant memory, covid-19, trade, global cooperation, data privacy and personal rights have all remained major topics of interest throughout the year. Here we highlight some of the issues most frequently debated on Lexology in 2021.
- Crisis management: the EU Whistleblower Directive – covering all companies with 250 or more employees – has been transposed into local law in some but not all 27 EU member states. We expect it to remain a hot topic into 2022 as employers decide what topics to cover and how consistently across their EU and global operations, with whistleblower protection reform also being contemplated or conducted from New York to Hong Kong.
- Corporate and merger control: the SPAC craze has generated much debate this year, with hundreds of SPACs still looking for an acquisition target, related litigation on the rise, increasing interest in non-US targets, possible liberalisation of listing regimes across Asia and Europe, and competition for incorporation work between onshore and offshore jurisdictions. Meanwhile, the Biden administration has intensified its merger scrutiny, as the FTC resumes its practice of requiring parties subject to an FTC order to obtain prior approval for transactions affecting relevant markets for which violations have been alleged.
- Data protection: major data protection legislation has continued to proliferate globally, from China to Saudi Arabia, while legislative proposals in this area remain under discussion elsewhere (eg, India). The EU has declared the UK data protection framework adequate and agreed a new regime for cross-border data transfers, albeit while proposing a new set of standard contractual clauses to cover non-EU processing. Six-figure settlements and penalties continue to arise in jurisdictions from Illinois to Luxembourg.
- Supply chains: stress on global supply chains has brought a sharper focus onto questions involving many areas of law, including trade and competition (eg, in the context of national reviews of critical supply chains and state support for struggling energy companies), supply chain financing (in contexts ranging from the collapse of Greensill Capital to Australia’s new Payment Times Reporting Scheme) and other contractual arrangements intended to hedge against supply chain risk.
- Employment: covid-19 has generated multiple new normals, sometimes within the same jurisdiction – as with Brazil’s Supreme Court declaring vaccination compulsory in March and its Ministry of Labour and Welfare restricting employers’ use of vaccination mandates in November. Ireland has announced legislative plans to give employees the right to request remote working, most likely with a right of appeal. Broader diversity and inclusion (D&I) reporting requirements are being enacted, such as Nasdaq-listed companies needing to publish the self-identified gender, racial and LGBTQ+ status of their boards and, if necessary, explain their lack of diversity.
- ESG: legislative and regulatory developments have been rapid in this area, even before one considers the much-anticipated after-effects of COP26. The EU Sustainable Finance Disclosure Regulation came into force in March, while the UK FCA has proposed to implement a bespoke ESG disclosure regime. Increased environmental and human rights due diligence requirements have found expression worldwide, including in Germany’s Supply Chain Due Diligence Act. On top of money laundering and terrorism financing concerns, serious questions have been raised around the energy costs of certain cryptocurrency mining models; some authorities have banned cryptocurrency mining in a bid to achieve carbon-reduction targets, while there are also increasing calls for more efficient cryptocurrency network protocols alongside cleaner energy production and more intelligent control of energy networks by consumers.
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