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Online safety reforms: Under the Online Safety Act 2021 (Cth), which takes effect from January 2022, online service providers will be under more stringent obligations to take down image-based abuse, cyber abuse, cyber bullying and seriously harmful online content, while the eSafety Commissioner will have new powers to ensure enforcement and create industry standards.
Privacy reform: Broad privacy law reform is expected in 2022. The Government previously flagged a review, including stricter requirements for when and how consent is obtained, an updated definition of 'personal information' and enhanced enforcement powers for the Office of the Australian Information Commissioner (OAIC). Any changes in this area will be heavily scrutinised in light of COVID-19 and personal privacy being at the forefront of Australians' minds.
Climate change litigation continuing to increase: Litigation is increasingly being used to seek to compel government and business to act on climate change and climate-related risks, with this trend expected to continue. Claimants are testing numerous litigation pathways, including claims based in human rights, tort law, consumer laws and corporate disclosure laws.
Implementation of the EU Collective Redress Directive: After highly controversial discussions, the EU Collective Redress Directive was approved by the European Parliament on 24 November 2020. It aims to ensure that consumers in Belgium have access to at least one effective and efficient representative action for obtaining injunctions and remedies for violations of general consumer protection rules, such as the rules on unfair terms in consumer contracts, unfair B2C practices and misleading advertising, as well as sector-specific consumer rules. Belgium will have to transpose the Directive by 25 December 2022 and it will be effective on 25 June 2023.
Reform of Belgian insolvency law:The Act of 21 March 2021 made several changes to the Belgian insolvency laws rules. The Act introduces a “pre-pack procedure” that offers a legal framework for the negotiation of amicable or collective agreements between the debtor and its creditors under the supervision of a judicial trustee, followed by accelerated judicial reorganisation proceedings. The changes aim at facilitating access of enterprises to judicial reorganisation proceedings and anticipate a more fundamental reform of Belgian insolvency law following the implementation of the EU Restructuring Directive, which is due by the summer of 2022.
New law implements cooperation between EPPO and criminal justice system: A law of 17 February 2021 has implemented the cooperation with the European Public Prosecutor’s Office (EPPO) into the Belgian criminal justice system. The Belgian legislator has opted for a stand-alone prosecution office, meaning that the EP and the EDPs are not integrated in the national prosecution office. Specialised investigating judges (intervening at the pre-trial stage in the investigation) will be appointed across the country to handle EPPO matters in cooperation with the Belgian EP and EDPs. The Belgian EP and EDPs have the same powers as the Procureur du Roi/Procureur des Konings (national public prosecutor).
Reform of the Civil Code – Book 5 (Obligations): The law on obligations is set to change extensively. The reform aims at: (i) codifying existing concepts developed by the case law and the legal authors; (ii) restructuring the various regimes (sources, contracts, obligations); (iii) introducing new concepts such as hardship theory, anticipatory breach of contract, price reduction as a sanction for a (quantitative) partial execution of a contract; and (iv) increasing the creditor’s unilateral activism to declare the contract null, to replace the debtor or to terminate the contract. The reform should be adopted during the first semester of 2022 and will come into force six months after its publication in the Official Gazette.
Economic Crime Levy to be introduced: HMRC has published details on the new Economic Crime (Anti-Money Laundering) Levy. As anticipated, entities that are regulated for anti-money laundering purposes (as defined by The Money Laundering, Terrorist Financing and Transfer of Funds Regulations 2017) will be in scope, provided their UK revenue (as defined) for the relevant accounting year is at least £10.2m. The levy will be established by the Finance Bill 2021-22 and come into operation for the financial year 1 April - 31 March 2023, with the first payments due in the financial year 1 April 2023 - 31 March 2024. It will be reviewed by the end of 2027.
Law Commission to report back on review of corporate criminal liability: The Law Commission is expected to report back in 2022 following its consultation on the review of corporate criminal liability. Proposals for reform may include the extension of the ”failure to prevent” concept of corporate liability to offences such as fraud, money laundering and market abuse.
Compulsory ADR coming to court?: The Civil Justice Council (CJC) has concluded that the introduction of compulsory alternative dispute resolution (ADR) into the English civil justice system would be lawful and may also be desirable.
Unified Patent Court: Amongst others, Germany has to ratify the Agreement on the Unified Patent Court and deposit the ratification instrument for the unified patent system to enter into force. In 2021, Germany’s Federal Constitutional Court has dismissed the request for interim measures against the ratification of the UPC Agreement. The dismissal enabled Germany to continue the ratification process and the ratification instrument is expected to be deposited soon. The UPC Preparatory Committee estimates that the UPC will commence its operations around mid-2022.
Implementation of the Collective Redress Directive: Until the end of 2022, Germany must implement the EU Directive on representative actions for the protection of the collective interests of consumers, which goes far beyond existing collective redress mechanisms in Germany.
The insolvency regime in Hong Kong: Cross-border insolvency co-operation between Hong Kong and mainland China took a major step forward in 2021 with the two jurisdictions announcing an arrangement concerning mutual recognition of and assistance to insolvency proceedings between their respective courts (the Arrangement). From the perspective of Hong Kong‘s insolvency practitioners, the Arrangement applies where the debtor’s centre of main interests is in Hong Kong and have principal assets, or a place of business or a representative office in Shanghai, Xiamen or Shenzhen. The Hong Kong Court issued its first letter of request to the Shenzhen Intermediate People’s Court shortly afterwards. It has also granted a recognition and assistance order to a Mainland administrator under the Arrangement. In 2022, all eyes will be on the draft Companies (Corporate Rescue) Bill (the Bill), which may be put to the Legislative Council soon.
Postponement of the transposition of Directive 2019/1023: The European Delegation Law 2019-2020 has mandated the Government to transpose Directive 2019/1023 (“Restructuring Directive”) into Italian law; after the Government asked for a one-year extension of the transposition period, the deadline is now 17 July 2022.
Implementation of the Collective Redress Directive According the draft European Delegation Law 2021, by 25 December 2022 the Italian Government shall transpose Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC.
Reform of on several provisions of the Criminal procedure code: the following amendments are notably contemplated:
New legislation will enhance the freezing and confiscation of proceeds of crime: the complete transposition of directive no 2014/42/EU of the European Parliament and of the Council dated 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union should be achieved. In addition, deficiencies in the Luxembourg Criminal Code should also be addressed to improve its effectiveness, by enabling the better detection and tracing of property to be frozen and confiscated. Following strong criticism of the status of the authority first contemplated to be in charge of managing and recovering criminal assets, the government has filed several substantial amendments recently following which two different authorities should be created under the respective direction of the direction of magistrates of the public prosecutor's office and the authority of the Minister of Justice.
New PRC Arbitration law to be introduced: In July 2021, the Chinese mainland’s Ministry of Justice proposed amendments to the Arbitration Law of the People’s Republic of China. The key proposals include broadening the scope of disputes for which parties may choose arbitration and allowing the tribunal to rule on its own jurisdiction, which should effectively facilitate the resolution of new types of dispute as well as jurisdiction-related disputes. In addition, foreign arbitral institutions will be allowed to establish “business organisations” in Mainland China to conduct “foreign-related arbitral business” and ad hoc arbitrations will be allowed in foreign-related arbitration, two measures which should make mainland Chinese arbitration more attractive to overseas parties. Lastly, under the proposals, interim relief may be sought from the mainland Chinese courts or the tribunal, moving the Chinese mainland’s system closer to global arbitration centres. The market expects the amended law to be released soon.
Implementation of the EU Collective Redress Directive: The directive must be transposed by 25 December 2022 and come into force on 25 June 2023. The draft legislation consultation closed on 31 May 2021. The Government believes that the Act on collective damages claims, that came into force on 1 January 2020, covers most of the directive's requirements and minor changes are required. A draft bill is expected early 2022.
Implementation of EU Preventive Restructuring Directive: Legislative proposal no. 115/XIV/3, that aims to implement the Directive (EU) 2019/1023, was recently approved by the Parliament.
Several amendments to the Portuguese Insolvency and Company Recovery Code (Código da Insolvência e da Recuperação de Empresas) are expected, including in the legal framework of special revitalization (PER) and insolvency proceedings. Besides the obvious impact that this proposal will have in restructuring and insolvency matters, this proposal will also carry out relevant changes in the Portuguese Companies Code (Código das Sociedades Comerciais), concerning the inapplicability of certain frameworks during any corporate restructuring proceedings provided in the Portuguese Insolvency and Company Recovery Code. According to the proposal, the following provisions shall not apply in the context of such corporate restructuring proceedings: (i) the regime applicable to the subcapitalisation scenario, (ii) the requirements for the share capital increase, and in particular, (iii) for the share capital increase by incorporation of reserves, as well as some provisions regarding the reduction of share capital, mainly the requirements for (iv) the calling of the general assembly, (v) the resolution, and (vi) the protection of creditors regime.
We may expect this new framework to be fully in force in 2022.
Implementation of the EU Collective Redress Directive: Directive (EU) 2020/1828 will represent a significant milestone for the further development of representative actions to protect the collective interests of consumers. This Directive aims to ensure that consumers have access in all Member States to, at least, injunctive and redress measures, and establishes rules to guarantee that the respective proceedings mechanism is efficient and effective, including on cross-border situations. Member States will have to implement the Directive into their national laws by December 2022.
Conditional fee agreements in arbitration and selected court proceedings: The Ministry of Law has proposed a bill to legalise the use of conditional fee agreements between lawyers and clients in arbitration and proceedings before the Singapore International Commercial Court (SICC). Such arrangements are currently prohibited under Singapore law. The bill is expected to be passed in early 2022.
Amendments to the Rules of Court: The amendments, which will come into force in April 2022, aim to streamline the civil justice process significantly. Key changes will include the consolidation of the majority of interlocutory applications into a single application, the narrowing of the scope of document production, and active case management by the courts through case management conferences throughout the life cycle of the case.
Changes to insolvency law: Insolvency law is expected to be amended during 2022 to adapt the Spanish legal system to the EU Restructuring and Second Chance Directive. The amendment, aimed at making it easier to restructure viable businesses and improve insolvency procedures, will bring major changes to pre-insolvency and insolvency rules in the country.
Justice. More efficient procedures: The Spanish government has announced a draft bill aimed at addressing structural weaknesses in the Spanish judicial system, to make it more efficient. Among other aspects, the legislation adds and promotes the use of out of court methods for resolving civil and business disputes, and takes steps to speed up judicial procedures and toward digital transformation of Spain’s justice system. A root-and-branch overhaul of the appeal process to the Supreme Court in civil cases is planned, as well as the introduction of a pilot judgment procedure to deal with mass litigation. We expect this legislation to come into effect in 2022.
Mortgage costs: The CJEU is expected to issue a decision in the next few months on when limitation periods start to run for consumers to demand reimbursement of payments made under invalid terms on mortgage costs. In the case referred for a preliminary ruling, Spain’s Supreme Court considers two options for when time limits start to run: (i) the date of the court judgment finding the term to be invalid, or (ii) the date of the Spanish Supreme Court judgment that set the case-law principle of reimbursement as the effect of invalidity (23 January 2019) or the date of the CJEU judgment in which it held that action for reimbursement could be subject to a time limit (16 July 2020).
Consumer law: Revised consumer legislation has begun its passage through Spain’s parliament, to adapt to Directive 2019/2161. The law applies to new forms of e-commerce and bars certain practices (such as stealth advertising) that are detrimental to consumers. Enforcement powers are also beefed up for Spain’s Ministry for Consumer Affairs.
Collective redress: The Spanish government has launched a public consultation on the implementation of Directive 2020/1828 on representative actions for the protection of the collective interests of consumers. The new law is expected to correct some of the shortcomings in the current rules on collective actions in Spain.
More greenwashing actions expected: 2022 will likely bring more greenwashing claims, both by the government and private plaintiffs, against corporates and investment funds. The SEC is also expected to issue a proposal targeting funds that market themselves as “green” or “sustainable," and could require fund managers to disclose the criteria and underlying data used. The SEC may also take a holistic look at the “Names Rule,” which requires funds to invest at least 80% of their assets in the investment type their names suggest.