Warwick legal RSS Feed of the newsItems on Warwick legal http://warwicklegal.com Thu, 28 Mar 2024 20:11:28 +0100 http://warwicklegal.com/news/742/germany-artificial-intelligence-in-the-company <![CDATA[ Germany: Artificial intelligence in the company ]]> Thu, 28 Mar 2024 20:11:28 +0100 Array http://warwicklegal.com/news/742/germany-artificial-intelligence-in-the-company  

Artificial intelligence (AI) already plays a major role and will shape our lives even more in the future. This development will revolutionize the way companies work. In order to survive in the competition, it is crucial to recognize and use the available options for action at an early stage.


The use of generative AI and large language models such as ChatGPT, Heygen, Runway and Co. raises many questions: 

  • What is allowed?
  • What is mandatory?
  • What is forbidden?

--> Companies need clear guidelines, both for internal use and in the customer context. The legal requirements for the use of AI are complex and require special attention.


The future AI Regulation (KI-VO) will have a significant impact on the dissemination and use of AI systems. It is recommended to take these into account when planning and implementing AI projects.

A clear AI roadmap for businesses should include:

  • Protection of trade secrets
  • Compliance with data protection law
  • Guidelines for the use of AI results
  • Compliance with applicable laws
  • Avoidance of infringement by third parties


AI and Copyright:

Copyright protects media such as texts, images, music and computer programs from unauthorized use. When it comes to AI training and generative AI, the UrhG contains numerous pitfalls. There is a risk of infringement of third-party intellectual property rights and that one's own AI model or its output may not be used. We provide advice in the areas of intellectual property, in particular with regard to AI training and generative AI, in order to avoid infringements of third-party intellectual property rights.


AI and Privacy:

We help companies with the data protection analysis of the integration of AI systems. This includes the examination of relevant data protection aspects such as data processing agreements and more. In addition, we take over the review, supplementation and preparation of data protection information for you and, if necessary, support you in carrying out data protection impact assessments.


AI and the design of terms and conditions of use:

Companies that offer AI-based products and services, whether in the field of AI SaaS, B2B or B2C, should clearly define the legal framework in their general terms and conditions (GTC) or terms of use. If necessary, you can deviate from legal requirements, if this is permissible. We are at your side to create understandable and fair conditions and to minimize the legal risks for your company.


AI and Liability:

We advise you on liability issues in connection with AI products, in compliance with the German Civil Code (BGB), the Product Liability Act and special legal regulations. We will also inform you about developments at EU level, such as the AI Act.


AI and Trade Secrets:

The GeschGehG, which came into force in 2019, sets out clear requirements for the handling of data. If these requirements are not met, confidential data loses its protection as a trade secret. Our support ensures the protection of your valuable company information When dealing with AI.

 

For further information, please contact:

Diane Frank, Partner

SCHMID FRANK, Augsburg

e: diane.frank@schmid-frank.de

t: +49 (0)1578 90 333 60

 

#WLNadvocate #Germany #ITlaw #techlaw #technologylaw #legal #lawfirm #network #companylaw #dataprotection #dataprivacy #data #liability #legalrisk #AI #artificialintelligence

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http://warwicklegal.com/news/741/turkey-akt-law-firm-recognized-in-the2024-edition-of-legal500-emea-in-the-fields-of-transport-and-dispute-resolution <![CDATA[ Turkey: AKT Law Firm recognized in the2024 edition of Legal500 EMEA in the fields of Transport and Dispute Resolution ]]> Wed, 27 Mar 2024 17:22:06 +0100 Array http://warwicklegal.com/news/741/turkey-akt-law-firm-recognized-in-the2024-edition-of-legal500-emea-in-the-fields-of-transport-and-dispute-resolution  

We are proud to share the following recognition for our member firm in Istanbul:

We are proud to announce that AKT Law Firm has been recognized by Legal500 (Legalease) EMEA as one of the top law firms in Transport and firms to watch in Dispute Resolution this year! This success is a testament to our team's hard work and continuous commitment to provide our clients services above and beyond.

We would like to extend our gratitude to our esteemed clients for trusting us, and we look forward to achieving even greater success together.

 

Congratulations to the whole team!

 

#WLNadvocate #Turkey #Istanbul #law #lawfirm #lawyer #transport #disputeresolution #litigation #maritimelaw #achievement #recognition #welldone #congratulations 

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http://warwicklegal.com/news/740/uk-changes-to-company-law <![CDATA[ UK: Changes to company law ]]> Fri, 22 Mar 2024 12:47:22 +0100 Array http://warwicklegal.com/news/740/uk-changes-to-company-law  

The UK has implemented changes to company law on 4 March 2024 as a result of the Economic Crime and Corporate Transparency Act.

The main changes that have been rolled out are:

1. Registered office address

All companies are now required to have an ‘appropriate address’. This is an address where any documents sent to it should (a) be expected to come to the attention of a person acting on behalf of the company (usually a director), and (b) be able to be recorded by an acknowledgment of delivery.

A company can therefore no longer use a PO Box as its registered office address. Companies that do not have an appropriate address face the risk of being struck off the register.

2. Registered email address

On incorporation, or on filing the next confirmation statement in the case of existing companies, all companies must provide an email address. Companies House may use this to correspond with the company, but it will not be made publicly available.

3. Statement of lawful purpose

When incorporating a company, the subscribers will now need to confirm that they are forming the company for a lawful purpose, and that the company’s intended future activities are lawful.

Existing companies will be required to make a lawful purpose statement when filing their next confirmation statement.

Companies (and anyone considering setting up a company) will therefore need to ensure that they are ready to take the necessary action.

Additionally, Companies House are increasing their fees for some services with effect from 1 May 2024.

 

For further information, please contact:

Steen Rosenfalck, Partner

ebl miller rosenfalck, London

e: steen.rosenfalck@ebl-mr.com

t: +44 77 3663 4727

 

#WLNadvocate #UK #London #eblmillerrosenfalck #lawyer  #lawfirm #solicitors #law #legal #corporatelaw #companylaw 

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http://warwicklegal.com/news/739/india-citizenship-amendment-act-2024 <![CDATA[ India: Citizenship Amendment Act 2024 ]]> Wed, 20 Mar 2024 12:17:45 +0100 Array http://warwicklegal.com/news/739/india-citizenship-amendment-act-2024  

Background

The Citizenship Amendment Act (CAA) 2019 was passed in December 2019 and officially enforced on January 10, 2020. However, its implementation was delayed due to the absence of notified rules. This legislation faced significant criticism from certain quarters, labeling it as discriminatory and demanding its repeal.

The enactment of the law triggered widespread protests nationwide, leading to its suspension for over four years. On March 11, 2024, the Union Government finally notified the rules for the Citizenship Amendment Act (CAA) 2019. This development, marked by the unveiling of the Citizenship (Amendment) Rules, 2024, enables eligible individuals under the CAA-2019 to apply for Indian citizenship, representing a significant step in providing sanctuary to those persecuted.

Eligibility

The eligibility criteria outlined in the Citizenship Amendment Act (CAA) encompass individuals who migrated to India prior to December 31, 2014, originating from Pakistan, Afghanistan, and Bangladesh due to religious persecution or related fears. These individuals must belong to one of six specified religious minorities: Hindu, Sikh, Buddhist, Jain, Parsi, or Christian. Moreover, applicants are required to have resided in the country for a minimum of five years, with a compulsory continuous stay of 12 months before initiating their citizenship application. Specific exemptions are also applicable in accordance with Section 3(2)(c) of the Passport (Entry into India) Act, 1920, and the provisions of the Foreigners Act, 1946.

Where does CAA not apply?

It's important to emphasize that the Citizenship Amendment Act (CAA) does not apply to regions governed by the Constitution's sixth schedule, which includes autonomous tribal-dominated areas in Assam, Meghalaya, Tripura, and Mizoram. Likewise, states in North-East India with an inner-line permit (ILP) regime, such as Arunachal Pradesh, Mizoram, Nagaland, Manipur, Lakshadweep, and Himachal Pradesh, are also exempt from the provisions of the CAA.

What changes with CAA?

The CAA seeks to expedite the citizenship process for minorities from Afghanistan, Bangladesh, and Pakistan who fled religious persecution and arrived in India before 2015. It aims to legalize their stay and grant them equal rights as Indian citizens, portraying it as a humanitarian initiative rather than a means of providing refuge solely to minority religions. Additionally, the CAA offers immunity to eligible migrants from legal repercussions for illegal entry or overstaying in India, reducing the residency requirement for citizenship from "not less than 11 years" to "not less than five years" for persecuted minorities.

Application Procedure

  • To begin the registration process unde, applicants must electronically submit their forms to the Empowered Committee via the designated District Level Committee.
  • An acknowledgment in Form IX is automatically generated upon submission.
  • The District Level Committee, led by the Designated Officer, verifies all accompanying documents.
  • After verification, the Designated Officer administers the oath of allegiance and forwards it electronically to the Empowered Committee.
  • If an applicant fails to appear in person despite opportunities, the District Level Committee forwards the application for potential refusal.
  • The Empowered Committee meticulously examines the application to ensure compliance with all conditions.
  • Upon thorough inquiry, the Empowered Committee may grant Indian citizenship if satisfied with the applicant's eligibility.

 

Requirement of special documents:

In addition to the documents outlined in Section 6B of the Citizenship Amendment Act (CAA) rules, two more documents are mandated:

  1. An affidavit confirming the accuracy of the information provided in the application, accompanied by an affidavit from an Indian citizen affirming the applicant's character.
  2. A statement from the applicant declaring their proficiency in one of the languages listed in the Eighth Schedule to the Constitution.

 

Misconceptions attached with CAA :

There have been discussions about the implementation of the CAA, and a narrative has been spread throughout the nation claiming that the law will strip Indian Muslims of their citizenship and that it is unconstitutional and discriminatory in nature because it excludes the Muslims of these three countries from its purview . The Indian government has defended its position by emphasizing that the CAA is a law passed to grant citizenship and not take it away, and the Muslims in these countries are neither a minority group nor subject to religious discrimination in their already Islamic-majority nations.

Although CAA seems to be a step to legalize the status of refugees already living in the country, the country is divided in its opinion and only the time will decide whether it was a positive step as claimed by the current Govt.

 

For further information, please contact:

Gautam Khurana, Managing Partner

India Law Offices, New Delhi

e: g.khurana@indialawoffices.com

t: +91 11 24622216

 

#WLNadvocate #India #indiangovernment #law #ilo #lawfirm #legal #legalnews #lawyers #network #immigration #citizenship #travel #opportunity 

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http://warwicklegal.com/news/738/nl-preliminary-questions-on-unfair-rent-increase-clauses <![CDATA[ NL: Preliminary questions on unfair rent increase clauses ]]> Mon, 18 Mar 2024 10:48:19 +0100 Array http://warwicklegal.com/news/738/nl-preliminary-questions-on-unfair-rent-increase-clauses  

In our newsletter of September last year, we wrote about a recent ruling by the Amsterdam District Court in which it was ruled that the agreed rent increase clause (in the case of renting out residential accommodation) is unfair on the basis of the European Unfair Terms Directive. This statement is not an isolated one. Since 2023, the Amsterdam District Court has a new policy regarding the assessment of rent increase clauses in residential rental agreements against the European Unfair Contract Terms Directive. According to the court, this review must be carried out ex officio, so also if the tenant does not invoke the directive or if the tenant does not appear in the proceedings. The clause is also annulled in its entirety if it is an "unfair" term. The clause is therefore also annulled if the term is only partially unfair.

The (financial) consequences of this ruling and this policy can be enormous for landlords. In the judgment we discussed, the rent increase clause consisted of two parts, an increase based on the consumer price index (the CPI) and, on top of that, the landlord had the option of increasing the rent by 5%. The Subdistrict Court ruled that the rent change clause is "unfair", which means that the clause is completely disapplied. The whole clause was therefore defeated. Whereas, in principle, a clause that explains how the adjustment of the rent is calculated and is based on the CPI is considered 'fair'. The consequence of this ruling is that the landlord has never been able to invoke the clause, the rent has been unjustly increased for years, the tenant has paid too much rent and the landlord cannot increase the rent in the future.

The Amsterdam District Court seems to be aware of the consequences of its ruling and its policy. Apparently, the court is also not entirely sure whether the approach is legally correct and has asked the Supreme Court preliminary questions (question about an interpretation of a rule of law).

The following questions have been put to the Supreme Court:

Question 1A: Can a rent increase clause in a lease agreement that provides for an annual surcharge on the rent of a maximum of 3% above the indexation under the consumer price index be regarded as an unfair term and what are the criteria to be applied in the assessment of this, or at least which points of view are important in this regard?

Question 1B: If a rent increase clause provides partly for an increase on the basis of the statutory scheme or for an increase on an objective ground such as a price index figure and partly for an additional rent increase that can be regarded as unfair, must the clause be annulled in its entirety, or is only the unfair part voidable?

Question 2: In the event of an unfair rent increase clause, does the liability for any increase lapse from the start of the lease and for the future?

Question 3: In such a case, even if the tenant has not reported to the proceedings, does the court itself have to check what has been overpaid from the start of the tenancy agreement and deduct that amount from the claimed rent arrears?

Question 4: Can the landlord invoke prescription if the tenant reclaims the overpaid rent increases?

Question 5: or is there another ground for limiting the period during which the tenant can reclaim the wrongly paid rent increases?

It is still unknown when the Supreme Court will answer these questions. We will keep you informed. Would you like more information about what may and may not be agreed (with consumers) or a check of your current contracts and (general terms and conditions)? We are happy to help you.

 

For further information, please contact:

Tim Boer, Partner

Labré advocaten, Amsterdam

e: tim.boer@labre.nl

t: +31 20 3052030

 

#WLNadvocate #TheNetherlands #law #legal #lawyer #lawfirm #landlords #realestatelaw #realestate #property #residential #SupremeCourt #rentincrease #EU

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http://warwicklegal.com/news/737/usa-hot-in-the-shade-inside-durham-s-new-tree-preservation-rules-for-developers <![CDATA[ USA: Hot in the Shade: Inside Durham’s New Tree Preservation Rules for Developers ]]> Thu, 14 Mar 2024 17:45:38 +0100 Array http://warwicklegal.com/news/737/usa-hot-in-the-shade-inside-durham-s-new-tree-preservation-rules-for-developers  

On September 5, 2023, the City of Durham adopted a text change to its Unified Development Ordinance (“UDO”), which sets new rules for phased development and tree preservation for new developments. These changes, which were in part modeled on the Town of Cary’s grading ordinance, will significantly affect future projects in Durham.

It is not unusual for a multi-phase development to have all its grading done at once. Durham’s UDO defines “mass grading” as grading of four acres of more at one time to prepare for development of one or more lots. With grading and site development comes the clearing of trees. Since 1999, the UDO has had minimum requirements for tree coverage during development. Since 2019, it has required that some trees be preserved, rather than replaced, wherever possible. During this time, projects that mass grade, depending on the zoning, have been required to use additional buffers, however there has been no specific requirement related to phased development.

Now, in response to concerns related to erosion that may result from mass grading multiphase developments, the City has adopted new mass grading and phasing rules.

New Mass Grading and Development Phasing Rules

The text amendment creates several restrictions to discourage mass grading.

Developments that utilize mass grading will now be required to provide a 10’ no-grading setback from all development site boundaries. For projects that utilize grading but grade less than 4 acres at once, a 5’ no grading setback will be required. Additionally, all residential developments in Durham that utilize mass grading will be required to utilize natural vegetation to provide opacity levels of 60% or more along the project boundary buffers.

These changes are intended to address issues with erosion control and the visual impact of mass graded parcels prior to the commencement of vertical construction. However, these changes also limit the construction envelope of new projects and add complexity to site planning.

While these changes alone have the potential to increase development costs in Durham, the most significant change is the new phasing rules. Under the new rules, no individual development phase shall be allowed to exceed 50 acres. Further, each phase of a development will be required to meet the required minimum tree coverage percentages as well as provide the utilities, fire protection, right of-way infrastructure, and stormwater management necessary to serve that phase.

In effect, Durham is reducing the maximum effective size of developments by setting a phase size cap and forcing each phase to stand alone.

The new phasing rules may significantly impact the construction timelines for future projects. While a multi-phase project still will be able to be approved through a single site plan approval process, a water and sewer extension permit will need to be sought for each phase of the project. Moreover, no land disturbing activity on a future phase shall commence until after the first asphalt layer of the street of the previous phase has been laid and inspected and the lot(s) in the previous phase have been stabilized, inspected, and approved per the county and state sedimentation and erosion control standards.

New Tree Preservation Rules

The new text amendment also sets new rules for tree preservation in an attempt by the City to encourage tree preservation over tree replacement and increase overall tree canopy coverage percentages for new developments.

New projects that exceed 35 acres for a single phase will soon be required to provide 30% tree preservation, meaning that 30% of the site will need to be covered by preserved trees. Projects with phases that are less than 35 acres in size and projects with phases greater than 35 acres but include varied housing types, affordable housing, or additional environmental protection measures will be required to provide 20% tree preservation. Developments will still have the ability to utilize tree replacement if preservation is not possible, but the required tree replacement percentage will be larger than the applicable tree preservation percentage.

These measures will succeed in incentivizing the preservation of existing mature trees, but they also will have a cost. These new measures will require development site planners to get more creative to maximize the use of developable land and project yields may drop as more developable land will need to be covered by existing or replacement trees. While these changes may produce more verdant development, developers may need to utilize more diverse housing types in order to maintain project yields or resort to building fewer but larger and more expensive homes.

 

For further information, please contact:

Nil Ghosh, Partner

Morningstar Law Group, Durham

e: nghosh@morningstarlawgroup.com

t:  +1 919 590 0362

 

#WLNadvovcate #USA #NorthCarolina #NC #Durham #Raleigh #MorningstarLaw Group #realestate #realestatelaw #law #legal #lawfirm #lawyers #attorneys #treepreservation

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http://warwicklegal.com/news/736/austria-12-new-municipalities-restricting-second-homes-in-the-province-of-salzburg-since-1-3-2024 <![CDATA[ Austria: 12 new municipalities restricting second homes in the province of Salzburg since 1.3.2024 ]]> Thu, 14 Mar 2024 10:25:14 +0100 Array http://warwicklegal.com/news/736/austria-12-new-municipalities-restricting-second-homes-in-the-province-of-salzburg-since-1-3-2024  

The Salzburg Spatial Planning Act stipulates that the use of a dwelling as a second home is restricted in those municipalities in which the proportion of dwellings that are not used as a main residence exceeds 16% of the total housing stock in the municipality.

Every 5 years, the state government must determine whether the above-mentioned conditions are met and then designate the municipalities restricting second homes by ordinance. The last regulation was in force between 1 January 2019 and the end of February 2024. The data of the last 5 years have now been evaluated.

The new ordinance of the Salzburg provincial government, promulgated on 29.2.2024, which determined the municipalities restricting second homes in the province of Salzburg, came into force on 1.3.2024. Of the total of 119 municipalities in the province of Salzburg, 91 have now been designated as municipalities restricting second homes.

The 12 new municipalities are as follows:

  • In the Flachgau region, Ebenau, Elixhausen, Elsbethen, Hallwang, Henndorf am Wallersee and Schleedorf are added.
  • In Tennengau Bad Vigaun,
  • In Pongau Bischofshofen and Eben im Pongau, as well as
  • In the Lungau Lessach, St. Margarethen im Lungau and Zederhaus.
  • The city of Salzburg, as well as Mittersill and Neukirchen am Großvenediger in Pinzgau, no longer fall below the 16% limit.

 

The ordinance does not change the previous use of a property in these municipalities. However, in the case of a transfer from 1.3.2024, it should be noted that in these 91 municipalities of the ordinance, the purchaser must make a declaration to the land transfer officer when acquiring the right to building land that the object of the legal transaction will only be used as the main residence or other permanent residence. However, if a second home has been approved under building law or if an apartment was already used for leisure purposes before 1.3.1993, this declaration obligation does not apply and the property can be used as before.

Now, 28 municipalities remain in the province of Salzburg that are not covered by this ordinance. However, these municipalities are free to declare themselves in the zoning plan as a second home restriction area, which Hallein, for example, has announced in its ordinance of 12.12.2019.

For the first time, the city of Salzburg is now also just below the threshold of 16%, but has also declared itself a second home restriction area in the zoning plan as of 7.2.2024.

 

For further information, please contact:

Petra Walkner, Lawyer

Zumtobel & Kronberger, Salburg

e: walkner@eulaw.at

t: +43 662 624500

 

#WLNadvocate #Austria #Salzburg #law #legal #lawfirm #laywer #property #propertylaw #realestatelaw #international #network #news #secondhomes

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http://warwicklegal.com/news/735/uk-to-share-or-not-to-share-parental-leave-edition <![CDATA[ UK: To share, or not to share? Parental leave edition ]]> Mon, 11 Mar 2024 15:34:53 +0100 Array http://warwicklegal.com/news/735/uk-to-share-or-not-to-share-parental-leave-edition  

This International Women’s Day, we want to highlight your right to choose how you and your partner share your childcare.

In April 2015, Shared Parental Leave was introduced in the UK to give parents greater flexibility on how they share statutory leave between them following the birth or adoption of a child.

The ability and financial support for parents to share childcare between them on a more equal basis is crucial for furthering gender equality and closing the gender pay gap in our workplaces. However, despite an estimated 300,000 couples being eligible for the scheme, there has only been about a 2% uptake. This is likely due, at least in part, to the wide difference in the cultural norms and expectations of men and women when it comes to childcare responsibilities that we still see in many workplaces.

Shared Parental Leave and Pay was introduced some time ago as a promising tool to further gender equality. Unfortunately, the scheme has not had the desired effect of encouraging men to take more leave after the birth of a child, which of course is crucial if we are to normalise shared childcare responsibilities more widely and enable a culture shift in our workplaces. Embracing Shared Parental Leave and Pay is a key part of this journey, but it is clear that many employers have found it difficult to understand and explain the rules of the scheme. The lack of awareness of the scheme amongst employees and overcomplicated rules, means that parents are missing out on not only a great opportunity of making the most of their statutory entitlement but also on making a difference in the long term. On International Women’s Day this year we want to put the spotlight back on to Shared Parental Leave and Pay.

So, what is the scheme all about, and how could it help you?

Shared Parental Leave and Pay

The Shared Parental Leave (SPL) scheme enables eligible parents to share up to 50 weeks of leave and 37 weeks of pay after birthing or adopting a baby. Leave can be taken at the same time as your co-parent, or separately whilst the other works.

To qualify, you and your co-parent will need to meet the eligibility criteria and give notice to your employers.

The main caveat of the leave and pay scheme, however, is a requirement that you or your co-parent has to end (‘curtail’) Statutory Maternity Pay (SMP) and Leave (or Maternity Allowance), in order to replace this with Shared Parental Pay and Leave.

Shared Parental Pay is paid at the rate of £172.48 per week, or 90% of your average weekly earnings, whichever is lower. This is the same as the rate for SMP after six weeks.

In the first six weeks after birth, SMP is paid at 90% of earnings with no maximum cap. This often means that it is more financially efficient for the birthing parent (who would qualify for SMP or Maternity Allowance) to only consider using the Shared Parental Leave and Pay scheme after the first six weeks of birth.

Why use Shared Parental Leave and Pay?

Using Shared Parental Leave and Pay will enable you and your co-parent to decide how to share childcare in a more flexible manner than the Maternity and Paternity Leave schemes currently allow. You can choose to spend time caring for your child together, sharing the childcare whilst your co-parent works, periodically stagger childcare responsibilities between you and most significantly, it gives you as the birthparent greater opportunity to return to work.

We believe that empowering mothers to effectively share their maternity leave with their partner and encouraging men to make use of their parental leave entitlement is a key component for increasing equality, keeping more skilled women in employment and in turn, reduce the gender pay gap and gender inequality in the workplace.

How we can help?

At ebl miller rosenfalck, we can determine eligibility for Shared Parental Leave and Pay of you and your co-parent, assist you with notifying your employer and help you to understand how and when you can take the leave and pay. We will ensure that the advice we give is tailored to your priorities, whether this be to maximise finances, to share the childcaring responsibilities, or to get you back into work as soon as possible.

For employers, we can assist in providing guidance on the scheme rules, your obligations as an employer and how to recover your costs in paying Statutory Shared Parental Pay.

 

For further information, please contact:

Laura Smith, Associate

ebl miller rosenfalck, London

e: laura.smith@ebl-mr.com

t: +44 (0) 7384 237 985

 

#WLNadvocate #UK #London #employmentlaw #parentalleave #sharedparentalleave #childcare #law #lawyers #lawfirm #maternityleave #paternityleave

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http://warwicklegal.com/news/733/happy-international-womens-day-2024 <![CDATA[ Happy International Women's Day 2024! ]]> Fri, 08 Mar 2024 11:00:43 +0100 Array http://warwicklegal.com/news/733/happy-international-womens-day-2024  

Brilliant women in our network have a message for you this International Women's Day - head to WLN's LinkedIn page to see our IWD Video 2024!

 

What words would you like to impart on your younger self if given the opportunity?

We invite you to reflect on this question on this International Women's Day and hopefully you can share your wisdom, experience, and courage with the younger generations of women in your life.

WLN women met today to share our thoughts and the guidance we wish all budding or young lawyers could understand; as well as reflecting on how our individuality and hard work has shaped us into the lawyers we are today.

The importance of trusting our own paths - and not being afraid to make mistakes - cannot be an understated contributor toward our success and fulfillment in our professional and personal lives.

Take some time to celebrate yourself and the women around you this International Women's Day, and every day.

Your uniqueness is a strength.

 

#WLNadvocate #InternationalWomensDay2024 #IWD #women #womeninlaw #younglawyers #lawyers #lawfirms #international #network #family #team #inspiration #celebration 

 

 

 

 

 

 

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http://warwicklegal.com/news/734/nl-the-end-of-the-non-compete-clause <![CDATA[ NL: The end of the non-compete clause? ]]> Fri, 08 Mar 2024 11:34:15 +0100 Array http://warwicklegal.com/news/734/nl-the-end-of-the-non-compete-clause  

It has been a topic of discussion for years that there is improper use of the non-competition clause. Reason enough for the government to investigate the effect of the clause in practice in its entirety. The study was completed in 2021 and identified a clear problem: the use of the non-competition clause is so broad that it can lead to an unjustified restriction of employees. This affects the proper functioning of the labour market, as it restricts employees from changing jobs and remaining active within their expertise and specialism. It is more difficult for employers to hire new staff. This issue has led the government to submit a bill to tighten the rules for non-competition clauses.

Protection of company flow vs. constitutional freedom of choice of employment

Many employers include a non-competition clause in the employment contract. The non-competition clause prohibits an employee from performing similar work for another company or as an entrepreneur after the end of his employment contract. The employer's purpose is to protect its business interests, such as trade secrets, knowledge about tariffs, customer data and files and goodwill, also collectively referred to as the "business flow".

The downside of the non-competition clause is the restriction of the constitutional freedom of employees to free choice of employment. The government is of the opinion that a non-competition clause should only be included and invoked if it is really important for the protection of the business flow. If there is no need to protect the flow of the company, then the free choice of work and labour mobility of the employee should be paramount.

Precisely because many employers include the non-competition clause as a standard clause in the employment contract, without there being any real reason to do so, there is no reason to unnecessarily hinder employees in their search for the labor market. Research has shown that the non-competition clause is used so often that it can lead to an unjustified restriction of employees. This hinders the proper functioning of the labour market, as it restricts employees from changing jobs and remaining within their expertise and specialism. But this is not desirable for employers either: after all, it is more difficult to hire new staff if they are hindered by a non-competition clause.

The government therefore wants to reduce the number of non-competition clauses and restore the balance between employers and employees. At the same time, the government wants to ensure that companies that have an interest in a non-competition clause can continue to make use of it.

 

Current legislation   Bill
The non-competition clause can be unlimited in duration – there are no limits set by law.   A non-competition clause can have effect for a maximum of one year after the end of the employment contract. Clauses with a longer duration or in which no duration is stated are null and void.
The inclusion of an area in which the non-competition clause applies, also known as geographical scope, is not mandatory.                                                          The geographical scope in which the employee is not allowed to work because of the non-compete clause must be stated. Despite the fact that it is not mandatory, it is wise to give good reasons why the geographical scope in question has been chosen.
In the case of fixed-term contracts, a non-competition clause is not permitted, unless this clause contains a written justification that the clause is necessary due to compelling business or service interests.   The compelling business or service interest for a non-competition clause must be justified for all employment contracts (i.e. not just for fixed-term employment contracts).
In principle, no compensation has to be paid to the employee if the employer invokes the non-competition clause, but the court may determine that the employer must pay compensation to the employee for the duration of the restriction if the clause significantly hinders the employee from working other than in the service of the employer. The amount of the compensation is determined by the court in accordance with fairness.   The employer must pay compensation to the employee when the non-competition clause is invoked. The compensation amounts to 50% of the last earned monthly salary for each month that the non-competition clause is invoked.

It follows from the proposed changes that the employer must explicitly indicate whether the clause will be applied upon the employee's departure. If this does not happen, the employee is in principle free to go wherever he/she wants, but no compensation has to be paid to the employee.

Non-solicitation clause also restricted

The non-solicitation clause is a special form of non-competition clause. The proposed changes and reforms will therefore apply not only to a non-competition clause, which prevents employees from entering into employment with competitors, but also to a non-solicitation clause, which prevents employees from working for or with relations of employers, such as customers (and also to the anti-solicitation clause).

Consequences for current clauses

The non-competition and non-solicitation clauses that were validly agreed before the entry into force of this bill will in principle remain legally valid. The formal requirements introduced in this bill will not apply to these existing clauses. After the entry into force of this bill, the provisions relating to invoking a clause and paying compensation will apply to existing clauses.

Expectations and internet consultation

The government expects these measures to strengthen the position of the employee, but also to make it easier for employers to hire new staff, because fewer clauses will be agreed and invoked. The labour market will function better, according to the government.

The bill is currently under internet consultation and stakeholders have six weeks to respond. It is not yet known when the bill will enter into force.

 

For further information, please contact:

Ron Andriessen, Partner

Labré advocaten, Amsterdam

e: ron.andriessen@labre.nl

t: +31 20 3052030

 

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