Author: Spanish Chamber

BLOG POST BY OUR PATRON DEL CANTO CHAMBERS

Continuing with the saga of “what will happen with”, today we will analyse the issues regarding insolvency proceedings established in the European Commission updated “Notice to Stakeholders on the Withdrawal of the United Kindgom and EU Rules in the Field of Civil Justice and Private International Law” (the “Notice”).

Regulation (EU) 2015/848 will apply when main proceedings opened before the end of the transition period. After that, the UK will not be able to open insolvency proceedings on the basis of Regulation (EU) 2015/848. The EU Member States will treat UK as a third country and insolvency proceedings initiated will not be recognised under Regulation (EU) 2015/848. Also, this will affect the automatic recognition of insolvency decisions issued in UK across EU Member States.

We need to bear in mind the importance of certainty on insolvency proceedings, especially for the finance sector. An expedite procedure may turn into a time-consuming and complex litigation one if not agreement is reached before the 31 December 2020.

Find the Notice on the following link: https://n9.cl/ars4

 

 

BLOG POST BY OUR MEMBER FULCRUM

As a result of COVID-19, more that ever businesses need to ensure that their compliance programmes are robust, resilient, and adaptable to new and/or heightened risks resulting from new market conditions. This includes taking into consideration not only legal and regulatory requirements, but also ethical demands in an increasingly scrutinised climate, where stakeholders and the general public expect businesses to act ethically and responsibly according to what is considered ‘adequate behavior’.

In parallel, new challenges posed during current and future lockdown periods (for example, budgetary and travel restrictions) may present additional hurdles to the implementation of compliance initiatives, making it harder for businesses to mitigate new risks by adequate internal processes, policies and controls in the context of increasing pressures and scrutiny by governments, regulators and the public alike.

 

How can businesses ensure that ethics underscores their corporate governance?

 

It is important that businesses are aware of the importance of ethics and integrity as they navigate a changing regulatory landscape and are fully committed to continuing with their compliance agendas, despite current and future challenges (for example, lockdown constraints and travel restrictions).

Whilst company values that underscore a well-developed compliance programme are an important starting point for businesses, it is crucial that due attention is paid to what employees, customers, stakeholders, and the general public consider to be ‘appropriate corporate behaviour’.

We have seen the public critical of companies reported to be adopting unethical business practices during the pandemic (for example, requiring employees to work in environments without adequate social distancing or PPE; and furloughing staff whilst paying out executive bonuses). In contrast, favourable comments have been posted in regard to companies that have demonstrated ethical conduct during the crisis (for example, providing time and resources to support community projects; and repurposing their businesses to manufacture products to support the emergency services).

The public’s scrutiny of companies’ behaviour has increased throughout the crisis and companies must be mindful that they act with integrity and ethically to enhance their business reputation (both internally and externally). In doing so, it is advisable that companies pay close attention to what is considered ‘appropriate corporate behaviour’ and how the company’s conduct will be viewed by employees, customers, investors, stakeholders, and the general public. This may also have a positive impact in attracting responsible or ethical investment towards companies that adopt high ethical standards.

Whilst the importance of compliance has not shifted as a result of the pandemic, the attention and priorities of employees may well have done.  Management teams and compliance officers must ensure that they maintain commitment to advancing their compliance initiatives, particularly whilst physically ‘out of sight’ owing to lockdown restrictions. In this challenging environment, underscoring compliance initiatives within the business will be imperative to business success. Companies should therefore be mindful of the following:

 

• Communication – It may be necessary to adjust communications so that instead of focusing upon the specifics of policies, communications underscore the general importance of conducting business with integrity at all times. This will enable companies to ensure that compliance initiatives stay relevant and at the top of the business practices, whilst avoiding accusations that they are pushing an out-of-date, pre-coronavirus agenda, which does not accord with the challenges currently faced by the business.
• Training – A key way of communicating these messages is through training.  The successful use of video-conferencing technology as individuals work remotely, means that training can continue, albeit in a digital format, and can now reach a much larger audience than ‘in person’ training methods.
• Senior management – The involvement of senior management, both in terms of communicating business messages, and as part of company training, will help reinforce the importance of compliance messaging, and demonstrate a clear and supportive tone from the top.

 

Conclusion

A robust, resilient and adaptable compliance programme which underscores the company’s ethical principles will support business survival through the crisis.  It will demonstrate to the public, stakeholders, potential investors and competitors, the company’s preparedness to respond to potential new risks and regulatory changes, giving firm assurance that the business is operating safely, whilst maintaining business ethics and corporate integrity throughout business operations.

Communication initiatives, training, and a clear tone from the top will be key to ensuring that the right messages are passed on to employees at all business levels, underscoring the importance to act ethically and responsibly at all times.

 

About Fulcrum

Fulcrum is a highly specialised legal advisory and consultancy business comprising barristers, solicitors, investigators, and other high calibre professionals.

We have established ourselves as a market leading firm providing strategic legal advice, consultancy, and representation for governments, public bodies, corporates, and private individuals in the fields of financial crime, corporate governance, and risk and reputation protection.

Our work ranges from assisting with structural compliance tools, such as policies, procedures, training, compliance audit, through to conducting internal investigations, where there is a particular concern.

We have been involved in, and continue to be involved in, the most significant and high-profile international corporate criminal investigations and prosecutions of the past decade, whilst acting as the trusted advisers to many corporates and other organisations in related areas.

 

Follow Fulcrum‘s LinkedIn page 

If you wish to download this article, please click here.

 

 

BLOG POST BY OUR MEMBER DOCUTEN INTERNATIONAL LTD

How companies do business has had to adapt to the changing times, and technologies that enable digitalisation have become essential to this new landscape. Digitising business processes has helped companies stay connected, cost-effective and operating smoothly. The trouble is that this usually means depending on a variety of different providers to meet different digitalisation needs.

Docuten, headquartered in A Coruña, is making waves with its innovative product suite Bundle Cloud, designed to address this exact problem. Docuten is a platform that handles core business processes from start to finish through digital signature, e-invoicing and payment collections. With satellite offices in Madrid and London, and a fast-growing portfolio of industry-leading clients, the company has footholds in several major international industries including fashion retail, construction, and most recently, the world of sports. A number of the companies that rely on Docuten’s services are listed on IBEX35, MAB and Mercado Continuo.

What sets Docuten apart

Companies often need several providers to digitise administrative processes, which means multiple contracts to juggle, several different projects to manage and various API integrations to implement. This is inefficient and time-consuming, more expensive, and riskier from a business standpoint. That said, digitalisation of any kind, even with different providers, allows companies to improve efficiency and operations. In a landscape saturated with providers, however, Docuten offers something better: the complete package.

Geared towards mid- and large-sized companies, Docuten’s Bundle Cloud digitises these three essential processes through one provider. For the first time, as companies grow and their needs expand, complete digitisation of administrative operations can be handled comfortably without the hassle of going through various providers. Docuten integrates with company management tools to automate the sending and signing of documents, the issuing and receiving of e-invoices, and the management of recurring collections.

With Docuten’s Bundle Cloud, companies are able to:

– Save 50% more as opposed to digitising with several different providers.

– Implementation and onboarding is 2.5 times faster.

– Handling updates and compliance is 2.5 times faster.

Why companies should digitise

There are a number of benefits to digitising processes, but the standouts are:

• Efficiency – Doing away with time-consuming, manual administrative work streamlines employee workflows, increases productivity and helps avoid mistakes.

• Cost savings – Digitisation saves companies time and money—no more paperwork means no more printing, mailing and storage expenses.

• Environmentally friendly – Going digital significantly reduces paper consumption and makes companies more sustainable.

• Secure and compliant – Digital transactions with Docuten provide more security and are compliant with legal regulations in the EU and globally.

To find out more about Docuten and the services they offer, you can visit their website at https://docuten.com/en/

 

 

 

BLOG POST BY OUR PATRON DEL CANTO CHAMBERS

Continuing with the saga of “what will happen with”, today we will analyse the issues regarding special European procedures and judicial cooperation established in the European Commission updated “Notice to Stakeholders on the Withdrawal of the United Kindgom and EU Rules in the Field of Civil Justice and Private International Law” (the “Notice”).

In relation with specific European procedures and judicial cooperation, EU sets an end.  Before the end of the transition period, EU law applies. However, after the end of the transition period the EU Member States can no longer launch new judicial cooperation procedures involving the United Kingdom based on EU law. Parties will need to rely on international conventions, if apply.

Until Brexit, EU presented a set of instruments that allowed a very flexible system of judicial cooperation, that was based on the principle of mutual trust between judicial authorities. Brexit has broken this important and useful direct judicial cooperation. Now parties will need to seek cooperation through other legal instruments, which certainly will not be as practical as the EU one.

Find the Notice on the following link: https://n9.cl/ars4

 

 

BLOG POST BY OUR MEMBER FULCRUM

The impact of COVID-19 and the economic uncertainty that has also resulted, has forced businesses worldwide to adapt to new market conditions as they seek to ensure ongoing business survival.

A new compliance landscape with new regulatory changes poses numerous challenges for businesses worldwide and across all sectors. These businesses need to operate under significant obligations and additional pressures, at a time of increased scrutiny from government, regulators, and the general public as they consider whether businesses are responding ethically and responsibly to the current changing environment.

These challenges further add to the growing pressure upon businesses that are already trying to grapple with the consequences of how they will be affected by the UK’s Brexit deal and what this will mean for both business relations between the UK and the European Union, but also in respect of the UK’s bilateral relations with individual European countries.

In this current uncertain climate, it is therefore crucial for businesses to ensure that their compliance programmes are robust, resilient, and adaptable so that new and/or heightened risks resulting from new market conditions can be adequately mitigated by internal processes, policies, and controls. This will support business survival, reassuring investors that the business is operating ‘safely’ and is well prepared to respond to potential new risks, changing market conditions, and regulatory changes.

 

How can businesses navigate the new compliance landscape?

 

It is important that businesses monitor regularly the changing regulatory landscape and fully understand the risks to which they are exposed, and respond in a timely and comprehensive manner.

a.   Identifying the key compliance risk areas to which they are exposed

As new guidance and legislation is implemented in response to the pandemic, companies must react in real time to a changing risk landscape. It is crucial that companies have a thorough understanding of the new risks posed in their business sector and respond accordingly. Some key risks are:

• Budgetary constraints and a reduced workforce– As businesses face economic pressure, they may find that their risk and compliance functions are operating with reduced budgets and resources, impacting upon their ability to conduct adequate compliance checks, monitoring, and screening across all business operations.  It is important that companies guard against such risks and adapt practices to ensure that compliance is maintained at all times.  This may mean, for example, using technology more to ensure effective communications and messaging, and considering whether responsibility for certain compliance matters can be shared with the business.
• Reduced mobility and travel restrictions– With government lockdowns and travel restrictions, businesses are less likely to be able to conduct on-site visits and maintain face-to-face contact with employees and third parties. So far as possible these practices will need to be undertaken remotely, presenting additional hurdles for businesses as they seek to monitor operations and investigate any allegations of potential misconduct.
• Supply chains– Supply chains have been, and are likely to continue to be, adversely affected by future lockdowns and travel restrictions, leaving businesses with little alternative but to on board new suppliers to ensure business operations and to safeguard business continuity. It may be that the urgency and pressures upon teams to ensure ongoing business continuity may lead individuals to bypass company processes and procedures when conducting due diligence, prioritising financial gain over compliance, and potentially exposing a business to new risks. It is important that companies guard against such risks, and continue to undertake risk assessments and remind employees of the importance of due diligence in all cases.
• Adjusted risk appetites– Companies in financial distress may become less risk averse so as to ensure business survival, however, they must continue to stay alert to how their risk appetites are evolving and the implications that such changes will have upon their business. Any adjustments must be communicated to staff to ensure that they are familiar with company practices and continue to adopt a compliance culture across business operations.
• Increased interaction with public bodies/officials– In response to the pandemic, governments and public bodies have provided, and continue to provide, emergency financial packages to support companies and individuals during the crisis. In such circumstances, companies must ensure that the funds are used appropriately and in accordance with government guidance to avoid any future allegation over the misuse of public funds.
• Corporate social responsibility (CSR) initiatives– With the increased social and ethical demand for companies to assist those in need in times of crisis, and to act urgently, there is a potential risk that company funds could be diverted for illegal and/or unethical purposes. Companies should continue to adopt appropriate due diligence on potential CSR initiatives to ensure that all CSR programmes and charitable donations comply with company policies, and to reinforce such policies and procedures with employees where necessary.
• Regulatory changes following Brexit – In addition to the above risks, businesses must consider further regulatory changes resulting from the UK’s exit from the European Union, as this may impact upon Spanish businesses operating in the UK and vice versa. This will require close attention to, and compliance with, both UK and EU regulations, particularly after 31 December 2020 which marks the end of the transition period. Businesses will need to adapt swiftly to a new regulatory framework and ensure that their compliance policies and procedures encompass any new requirements and obligations so as to avoid regulatory breaches and reputational damage.

 

b.   Ensuring that internal policies, processes and controls are adequate to the risks identified

As new risks are identified, and new guidance and legislation is introduced, businesses need to ensure that they monitor and review internal policies, processes and controls to ensure that they are comprehensive, responsive to new market circumstances and regulatory changes, and reflect the changing risk landscape.  This may require consideration of the following:

• Tone from the top – Senior management should be active in promoting a culture in which corruption and unethical conduct is not accepted, and that they continue to communicate their company’s commitment to carry out business fairly, honestly and openly.
• Communication – Companies must communicate any risk adjustments to employees promptly, ensuring that they have an appropriate understanding of their obligations and act accordingly. Companies must encourage employees to report any suspected or actual misconduct and have in place appropriate whistleblowing procedures that protect the whistle blower from repercussions, whilst ensuring that any suspicious or actual wrongdoing is addressed promptly and effectively.
• Due diligence–At a time when companies may need to use alternative business partners owing to travel restrictions or reduced budgets, companies must ensure that counterparty due diligence and other on-boarding procedures are not overlooked. This will involve: (i) conducting new risk assessments on third parties and partners; (ii) adjusting internal policies and controls to account for new or heightened risks; (iii) reminding employees of the importance of conducting thorough due diligence throughout business relationships; and (iv) monitoring the results of the due diligence.
• Monitoring and review– Companies must continue to monitor and review their policies, procedures and practices throughout the pandemic to ensure that they accord with all regulations and guidance and adapt to forthcoming changes in a prompt and timely manner.

 

Conclusion

COVID-19 has brought about new challenges, economic uncertainty, and regulatory changes for businesses, adding pressure to the existent concerns that have emerged from Brexit. Whilst COVID-19 restrictions and the current climate of uncertainty have a direct impact on business relationships between Spain and the UK, posing additional hurdles to business continuity for companies, businesses must adapt to these new market conditions in a way that ensures good compliance practices.

There is no COVID-19 defence for non-compliance so it is important that management and compliance teams continue to keep on top of their compliance agendas, regularly review and monitor the risks that their business face, and ensure that their business practices, policies and procedures respond appropriately to these risks.

 

About Fulcrum

Fulcrum is a highly specialised legal advisory and consultancy business comprising barristers, solicitors, investigators, and other high calibre professionals.

We have established ourselves as a market leading firm providing strategic legal advice, consultancy, and representation for governments, public bodies, corporates, and private individuals in the fields of financial crime, corporate governance, and risk and reputation protection.

Our work ranges from assisting with structural compliance tools, such as policies, procedures, training, compliance audit, through to conducting internal investigations, where there is a particular concern.

We have been involved in, and continue to be involved in, the most significant and high-profile international corporate criminal investigations and prosecutions of the past decade, whilst acting as the trusted advisers to many corporates and other organisations in related areas.

 

Follow Fulcrum‘s LinkedIn page 

If you wish to download this article, please click here.

 

 

BLOG POST BY OUR PATRON DEL CANTO CHAMBERS

Continuing with the saga of “what will happen with”, today we will analyse the issues regarding recognition and enforcement of judicial decisions established in the European Commission updated “Notice to Stakeholders on the Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law” (the “Notice”).

The Notice differentiates two main circumstances:

• Proceedings instituted before the end of the transition period. Eu rules will provide the framework which allows the enforcement of a judgment in an EU Member State.

 

• Proceedings instituted after the end of the transition period. Eu rules on enforcement will not apply. If no international convention applies, “the recognition and enforcement of UK judgments will be governed by the national rules of the Member State in which recognition/enforcement is sought”.

It is important to bear in mind that UK has not reach an agreement with the EU in relation with recognition and enforcement of judgments. Nor has been accepted yet as a party of the Lugano or Hague Convention. If none of this Conventions apply and no agreement is met the enforcement of UK judgments will depend on each domestic law and common law rules of private international law. This will create uncertainty and an increase of costs and time.

Find the Notice on the following link: https://n9.cl/ars4

 

BLOG POST BY OUR PATRON DEL CANTO CHAMBERS

Continuing with the saga of “what will happen with”, today we will analyse the issues regarding applicable law in contractual and non-contractual matter established in the European Commission updated “Notice to Stakeholders on the Withdrawal of the United Kindgom and EU Rules in the Field of Civil Justice and Private International Law” (the “Notice”).

• Contractual obligations.
  • Rules on applicable law applicable in the UK. Rome I Regulation will apply in the United Kingdom in respect of contracts concluded before the end of the transition period (Article 66(a) of the Withdrawal Agreement).
  • Rules on applicable law applicable in the EU. Rome II Regulation applies. This regulation provides for universal application.

 

• Non-contractual obligations.
  • Rules on applicable law applicable in the UK. Rome II Regulation is to apply in the UK in matters that give rise to damage when such events occurred before the end of the transition period.
  • Rules on applicable law applicable in the EU. Rome II Regulation applies.

When negotiating a contract parties should carefully think the governing law clauses. Even though EU is establishing some rules regarding the applicable law, we must bear in mind that UK courts are independent and may decide differently. Parties must be aware of the existence of uncertainties in relation with the applicable law at the moment they choose English law and/or jurisdiction in their contract or fail to choose it.

Find the Notice on the following link: https://n9.cl/ars4

 

BLOG POST BY OUR MEMBER MTSpain

The aim of this article is to give advice on how to solve the obstacles we might face when choosing a city to live or another country to spend periods of time, like in this case Spain.

It is a path, a dream, a goal that many people think about and that will lead to a new stage in live once the objective is reached.

In the first place the most import thing is the “profile”, are you a family with children of school or university age, or are you looking for a city that offers job opportunities, are you looking for a cosmopolitan city or for a small town or for a place with tax benefits, like the example of the Canary Islands or just for cities where you can retire by the sea as the best alternative having all the health, cultural and leisure services.

Once the profile of the person or of the family unit has been determined the focus will be on other factors related with the preferences like climate, sea, mountain, big or small city, connections with the country of origin.

After choosing the candidate cities we should evaluate the living cost in them as we can find important differences in the shopping basket and services (water, electricity, transport, fuel…).

Now that we have selected a city, we will select the property, we do always recommend choosing a quality home, if possible, a brand-new home.  There is a lot of difference between investing in quality and new or investing in a second hand property,  it is worth mentioning that in a new property we can create our home from the very beginning with our own energy, it´s like starting to write a book again.

The atmosphere that will surround our home is very important, with whom we are going to live, a study of the environment of coexistence can be made. There might be young marriages with small children that would be ideal if we do also have small children or retired couples that likewise would be ideal if this would be also our case. This all would help to face the day to day life and feel more embraced by people in similar coexistence conditions.

The services that we will need like mortgage with the best conditions, private health insurance and nearby hospitals, home insurance that covers all claims for our peace of mind, telecommunications that will make it easier to stay in touch with our country of origin (wifi, tv, telephony with competitive rates) and design with which we will enjoy the comfort of our new home.

MTSpain, as new member of the Chamber of Commerce, offers all the mentioned support and advice free of charge to help you to find the home you need. We have more than 80 property developments in Spain and are able to offer support in dealing with the mortgage, insurance, telecommunications, and design.

 

Contact

Milagros.granizo@mtspain.es

 

 

BLOG POST BY OUR PATRON DEL CANTO CHAMBERS

Last 27 August 2020, the European Commission published an updated “Notice to Stakeholders on the Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law” (the “Notice”). It presents a useful summary of the rules that will apply after the transition period ends, 31 December 2020, in relation with international jurisdiction, applicable law, recognition and enforcement of judgments, insolvency, judicial cooperation, and other related issues.

Even though the EU and the UK are negotiating a free trade area, it is improbable that such an agreement will be concluded before the transition period. If this happens, the UK will become a third party before the EU Member States and the application of EU law. This is profoundly important for parties of the economic and commercial sector, who engage transactions with UK nationals. Stakeholders who are going to subscribe to a contract containing a choice of UK courts, or have already subscribed it, need to bear in mind the consequences in the event of a dispute. If they wish to correct the direction of their relationship, it should be done before the end of the transition period to avoid unwanted legal situations.

In this series of articles, we will examine the expected scenario within the international jurisdiction. The EU private international law will apply in areas of civil and commercial matters, including insolvency and family law, when the defendant is domiciled or habitually resident in an EU Member State. Additionally, it is essential to focus on the moment when the legal proceedings start before or after the end of the transition period.

• Proceedings started before the end of the transition period. The EU rules on international jurisdiction continue to apply in the UK and EU Member States, in situations involving the UK. Also, the EU rules on jurisdiction will continue to apply to “proceedings or actions that are related to such legal proceedings” even when such related proceedings or actions start after the end of the transition period (Article 67(1) of the Withdrawal Agreement).

 

• Proceedings started after the end of the transition period. Courts in the EU Member States will need to analyse if the matter falls within the scope of EU instruments -or not- to determine their international jurisdiction. (i) When the case falls within the range of EU instruments in civil, commercial, and family matters, the courts will base its decision on EU instruments. National rules on international jurisdiction may be applied by the court of a Member State when the instrument in question provides so. (ii) If the matter falls outside the scope of EU instruments, “international jurisdiction will be governed by the national rules of the Member State in which a court has been seized”. International conventions may apply in some instances.

 

• Find the Notice on the following link: https://n9.cl/ars4

Branding is an essential part of any business, but it can be difficult to strike the right tone. For our October TradeTip we are joined by Marc Guitart from Brandlond, an expert in Strategic Brand Management, who will explain how to fulfil your company’s branding potential.

If you’d like to find out more please get in touch with our team at info@spanishchamber.co.uk with the subject “TradeTip October 2020”.