A Guide to the Modern Slavery Act – Your Business could be affected

The question that many supporters of anti-trafficking movements are asking – does the new Modern Slavery Act (2015) go far enough and ensure that corporates do enough to maintain a transparent supply chain?
The new Modern Slavery Act (2015) will apply to all commercial organisations who carry on business or part of a business in the UK.
Regulations under the Act expected to be implemented in October 2015 will require those with turnover above a yet to be determined threshold to produce an annual statement for each financial year under the so-called ‘Transparency in supply chain provisions’.
Organisations are likely to have only until the end of the current financial year to produce their first statement. Current reports suggest that a threshold of around £36 – 40 million is likely.
The Government has indicated it will publish compliance guidance in the next few months.
The Act introduces two main offences
• servitude or forced labour
• arranging or facilitating the travel of another person with a view that a person is being exploited.
Section 54
• Section 54 of the Act will require every large business to publish an annual statement setting out the steps the business has taken during the year to ensure that slavery and human trafficking are not taking place in the business itself or in its supply chain. The statement must be published on the business’s website.

• The obligation to publish a statement applies to businesses which carry on any part of their business in the UK and which “supply goods or services” (essentially all trading companies and partnerships).

• The statement must be approved by the board of directors and signed by a director (in the case of companies), approved by the LLP members and signed by a designated member (in the case of LLPs), and signed by a general partner (in the
case of limited partnerships).

• Overseas conduct will be included and will be deemed as if the offence had
taken place in the UK.
Preparing the Statement
If a company is caught within threshold, the basic requirement is to produce a statement confirming:
• the steps taken to ensure that slavery and human trafficking are not taking place in your business or in any supply chain or
• that you have taken no steps to confirm the existence of slavery or trafficking. This approach may place a company’s ethical position into question and would probably not be perceived to be the popular stance.
The Act does not specify the exact steps that a business must take in relation to supply chain transparency, and there is no prescribed form of transparency statement. However, the Act suggests that the statement “may” include the following:
• brief description of your organisations business model and supply chain relationships
• your organisation’s policies relating to modern slavery including due diligence processes and the training available/provided for those in supply change management and the rest of the organisation
• the parts of the business and supply chain most at risk in the organisation and how the organisation evaluates and manages those risks
• relevant key performance indicators which would allow a reader to assess the effectiveness of the activity described in the statement.
Publication
The homepage of your website must contain:
1. a prominent link to the statement
2. the statement must be approved by the board and signed by a director
3. homepages of both the parent company and any subsidiaries websites
4. if the company does not have a website it must provide a copy of the statement within 30 days to anyone who requests it.
Application / Jurisdiction
• a company/partnership over a certain size
• supplies goods or services
• carries on a business or part of a business in the UK
Implications
The Act itself imposes no legally binding requirements to conduct due diligence on its supply chains. At present there is some flexibility surrounding the content of the statement as companies may find it difficult to compile all information and the Government has framed Section 54 in such a way as to leave it open to businesses to determine how best to comply
with its requirements, and how far they should go in identifying where any risks may lie (and how to tackle them). The Government has also made it clear that it expects each business to take a appropriate and proportionate approach based on the nature of its business and the industry sector.
What should companies be doing now?
Companies should assess whether you are caught by these requirements, for some this will be straight forward, however for others they will need to decide on an entity by entity basis once the turnover threshold is published. Companies may want to consider the following:
• start assessing current levels of information on your supply chains. The company will need to start engaging with your direct and indirect suppliers and set up due diligence systems to obtain reliable information
• draft and implement a policy on slavery and trafficking
• assess the need for training within the organisation and your supply chains on human rights compliance
• incorporate anti-slavery and trafficking obligations (and related policies) into procurement agreements, and require similar obligations to be incorporated into any sub-contracting arrangements
• consider the company’s supplier due diligence processes to incorporate procedures designed to identify modern slavery and trafficking risks.

Does this impose enough obligations on companies? At this time, it seems that any process that seeks to address trafficking and forced labour issues are to be welcomed.

However there are no criminal or financial penalties for non-compliance and that is an area that should be reconsidered. In order to safeguard and ensure that companies comply with the Act and comply properly and ethically, there should be some element of financial penalty. Notwithstanding the lack of penalty, any company that is deemed not to be adhering to the Act may suffer detriment from a reputation perspective and this in itself may be enough of an incentive for both companies that fall within the threshold and those that don’t to comply with Section 54 properly.

Employment Law Update

The latest employment law news from Moore Blatch covers changes to zero hours contracts, minimum wage rules, and policy plans from the new Conservative government, plus recent employment case law decisions and other news.

Minimum Wage Breach Penalty: Per Worker, not Per Employer

The maximum penalty of £20,000 for employers who fail to pay their workers the National Minimum Wage will now be calculated on a per worker rather than per employer basis. This could make a huge difference to employers in breach.

Exclusivity Clauses Banned from Zero-Hour Contracts

Employers are no longer able to prevent staff who work for them under zero-hour contracts from working for another employer or require them to get employer’s consent before working for another employer, as exclusivity clauses are now banned from zero-hour contracts.

EU Data Protection Law Updates Expected to be Restrictive

The European Commission have stated that they intend to finalise new Data Protection Regulation laws by the end of 2015. Current predictions indicate the regulations will be more onerous and restrictive in  comparison to the Data Protection Act of 1998.

It may be that the employment of a Data Protection officer is at least advised, and at most mandatory. The financial consequences of a breach could be colossal, with fines possibly being up to either 5% of global turnover, or €100,000,000.It is strongly advised to be compliant with any changes, and at least ensure that the HR department is aware of these proposals. Starting to train or appoint a Data Protection officer might also be advised to ensure smooth implementation of policies when these changes come into effect in 2017.

Read the full update at the Moore Blatch website

Principal Designer Appointment

The new role of ‘Principal Designer’ was created by the CDM Regulations 2015 to replace that of the CDM Coordinator.

Appointment of a Principal Designer for the new CDM Regulations

‘Appointment of a Principal Designer’ is designed to work with the new CDM Regulations

Under the 2015 Construction Design and Management Regulations, which came into effect in April, every new UK construction project will need a ‘principal designer’.

However, JCT, NEC and other publishers of construction contract forms have not yet produced a template.

So we thought a Principal Designer Appointment would be useful – and it’s now available as a template to download from our website.

The form has been drafted by specialist construction lawyer  Giles Dixon, who is also co-author of the JCT Constructing Excellence Contract.

Detailed Duties

The regulations contain numerous detailed requirements as to the duties of the principal designer as well as the client, and these are reflected in ContractStore’s form of appointment.

The principal designer’s role will be to plan, manage, monitor and coordinate health and safety in the preconstruction phase of a project. The regulations require the principal designer to be a designer who prepares or modifies the design or who arranges for the design to be prepared.

Thus, a health and safety expert who could be qualified to act as a CDM coordinator under the 2007 regulations, would not be qualified to take on this new role. Instead, the architectural and engineering professions are most likely to provide the principal designer on construction projects as CDM Co-ordinators are phased out over the next few months.

The new form of appointment is available to download from our website: http://www.contractstore.com/B163-principal-designer-appointment

And there are some very useful guidance documents on the CIBT website: http://www.citb.co.uk/health-safety-and-other-topics/health-safety/construction-design-and-management-regulations/cdm-guidance-documents/

How to Find and Motivate Great Agents and Distributors

How to get started with exporting

Ebook available to download from ContractStore

Simon Bedford, author of Exporting Made Easy, gives guidance on working with agents and distributors, ahead of the upcoming UKTI Export Week, 18-22 May

Why use an agent or distributor?
The appointment of an overseas agent or distributor can be a quick and low cost way to open up a new international market. However, there are many questions about the timing, how to find the right person, their role and responsibilities and how to motivate them to perform consistently well over the medium and longer term.

Our man in…
Companies can start exporting directly without using a “middleman”. They can simply travel to the market, having carried out some research, and try to book the orders. However, after a short time there is a realisation that a local man on the ground in the form of an agent or distributor can bring results more quickly and this is a continuous point of contact for you and your customers.

Companies usually know whether they require a purely commission agent or need a distributor who can stock products locally in the market. As the export of services from the UK has expanded rapidly in recent years and there is no tangible product to stock so an agent is all that is required.

Ensuring good relationships
If an agent is performing well, there should be a good relationship and communication between the customer, the agent and of course, the exporter.
The agent is simply identifying and ‘warming’ up the customer in return for an agreed commission.

The alternative, is for an exporter of products to supply and invoice the distributor who will hold stock, add his mark-up and in turn sell to the end customer. The distributor may well regard the customer as their client and therefore not be keen to allow the exporter to build any relationship.

Finding the right agent and distributor
There are many ways to identify good agents and distributors. This can be via other companies operating in the sector, exhibitions, trade associations, the internet and social media or via UK Trade & Investment, as this is a service we regularly offer from the British Embassy network worldwide.

What to look out for
Agent and distributors usual immediately ask for exclusivity. Be cautious, consider a trial period, and do not offer too large a territory. In a vast country such as the USA, China or India one agent is unlikely to have the capacity to cover more than a part of the country or region. If offering a region covering several countries again be careful; even if he has the ability, start with a limited area and see how it develops – much easier to expand than contract the territory; and always be specific – don’t, for example, refer to the Middle East but instead specify which countries are covered.

What motivates them?
Finally motivation. If we put ourselves in the shoes of an agent or distributor we can understand the factors that they would find motivational. Sales and profit, of course, but support particularly in the first year to establish the product or service in the market, and regular communication to ensure there is an understanding of how the business is developing.

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About the Author

Simon Bedford of SGB Associates (UK) Ltd, provides export training workshops,  consultancy, and international marketing through UK Trade & Investment (UKTI) since 2004. He has supported over 500 businesses to get started with exporting and is the author of Exporting Made Easy, a straightforward guide that is available in print at a new discounted price (£5.99 + P&P) or as an ebook (£4.99) from ExportingMadeEasy.com

Employment Law Update

Moore Blatch Employment Law Update April 2015A number of changes in Employment law take effect in April, including increases in the statutory pay rate for maternity, paternity and adoption leave as well as statutory sick pay.

Also, from 6th April there are increases in the limits that apply to certain awards given by Employment Tribunals.  For example the maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or an award which includes the basic or additional award of compensation for unfair dismissal will increase as will the minimum amount of basic award for compensation where a dismissal is unfair.

More details, such as a review of the draft regulations recently issued on zero-hours contracts, that will effectively make exclusivity clauses unenforceable where a worker’s income and hours fall below a certain threshold, can be found in the solicitors Moore Blatch monthly update PDF newsletter. You can also read articles on a range of other employment-related topics on their blog.

Doing Business in Russia

Companies regularly consider their plans for growth of their business and one of the main possibilities for growth is expansion to new markets.  Interviews of management of different foreign companies and recent global surveys show that the overwhelming majority of such companies are considering entering the Russian market as one of their top priorities.  In general, Russia is an attractive market for foreign investors.

However, the high profit expectations which Russia offers are often coupled with suspicious attitudes towards the Russian partners and Russian legal system, which, together with political factors, often outweigh the perceived benefits of investing in Russia’s rapidly developing economy.  This article is intended to briefly address some of the concerns related to Russian business partners and the Russian legal system.  We will attempt to take inside knowledge and experience of Russian legal and business reality and analyze it from the standpoint of a foreign businessman, providing you a myth-free picture of the legal perspectives of doing business in Russia.

Trading with Russia. Image from Wikipedia

There are plenty of good trade opportunities with Russia despite many foreigners’ concerns

The Legal System

The current Russian legal system still in its infancy.  For over 70 years, until the collapse of the Soviet Union in 1991, Russia had a command economy, state controlled commerce and recognized no private ownership.  What did business look like at that time?  The State prepared a plan, which was obligatory and which already prescribed what goods could be produced, whom they could be sold to and at what price.  There was actually no place for negotiations and, consequently, no established market practice and space for development of the legal system although, even in those days, civil relations were regulated by the Civil Code of the USSR.

In 1994 the current Civil Code of the Russian Federation was adopted.  It is the main source of civil and corporate law in Russia.  There are also a number of other normative acts (Federal Laws are the main part of them) which regulate different business issues. There are many articles on the internet on the differences between the Russian legal system and common law (hence no need to name them in this short article) and probably the main one is that Russian law does not recognize precedent when interpreting provisions of the Civil Code and other Federal Laws.  However, recent developments in the Russian legal system show that more and more features of common law are being adopted.  Moreover, within the last few years Russian law has taken a big, but as yet informal, step in the direction of common law – the significance of previous court decisions and especially decisions of the higher courts has increased, so that such decisions are usually treated as binding for other Russian courts dealing with similar disputes. We believe that if this tendency continues (and we do not see any obstacles for it to happen), it will help to build confidence in the Russian system among foreign investors and Russian businessmen.

Entering the Market

The other source of problems faced by foreign investors and a lot of Russian business people which often causes misunderstandings is miscommunication.   Even today a number of Russian companies are managed by people who started their professional career in Soviet times.  Lack of background experience, education in the command economy, suspicion of their partners are some of the characteristics which make some Russian partners behave in an unpredictable manner.  Thus, if a foreign investor is planning to enter the Russian market, it can be a good idea to have someone (a manager, lawyer, whoever) who is capable of building a bridge of mutual understanding between the Russian partner and the foreign investor. And once this bridge is built, you can have confidence in your partner.

We also believe it may be useful to focus on some legal aspects of doing business in Russia: establishment of a legal presence, regulatory framework, taxation, repatriation of profits (exchange controls) and consideration of potential dispute.

Establishing a Legal Presence in Russia

Your legal presence in Russia can be established in the form of an entity  – LLC (limited liability company) or  JSC (joint stock company) or in the form of the branch or representative office.  Each form has its own advantages and disadvantages, but around 90% of foreign companies working in Russia are set up as an LLC (in some cases only an LLC or JSC will allow you to conduct business operations and get a licence if this is needed for your activities).

To register an LLC you will need to prepare a set of documents which has to be submitted to the tax office which serves the location chosen for your business.  You will also need to open a bank account and find premises for your office and verify some documents before a notary.  Registration of an LLC usually takes no more than 5-7 business days and you will then get a set of documentation confirming state registration of your business.  In general, this process is not too complicated, but, as in any country, there are some peculiarities and we recommend that you engage local lawyers to guide you through the process.

Repatriation of Profits and Exchange Controls

One important topic for a foreign investor is the possibility of repatriation of profits and the related exchange control laws.  Usually, repatriation of profits is made in a variety of ways: payments of intercompany invoices, royalties, dividends or  interest under a loan agreement – for your particular business needs tax you should contact your tax advisor.  If certain conditions are met (usually, this involves the total amount of money to be transferred) you may be required to open a special file with your bank and attach a contract between the concerned companies which serves as the justification for such money transfer. This is quite a simple procedure and usually companies do not experience any difficulties.

Licensing

If your business requires a licence (e.g. if you sell alcohol) or any other authorization (e.g. if you conduct construction activities), you will be able to apply once your legal presence is registered.  Russia has quite detailed procedures for obtaining a licence/authorization and, so long as you follow it carefully, it should usually be granted within 1-2 months. If your licence/authorization is for some reasons declined, there is a possibility to challenge this in court – the state Arbitration court.

Court System

Having mentioned the possibility of a dispute in the courts, we will very briefly focus on the Russian court system insofar as it affects commercial disputes.  This consists of state courts – known as the arbitrazhniy courts – which consider commercial disputes, an IP court for intellectual property cases established in 2013, mediation and commercial arbitration.

Usually parties to a dispute will choose between a state court (e.g. Arbitrazhniy Court of Moscow) and commercial arbitration (e.g. the International Commercial  Arbitration  Court at the RF Chamber of Commerce and Industry).  In our view, both options are fine as decision of both courts can be enforced in Russia, at the same time it is more likely that only decisions of the ICAC can be enforced overseas in countries that are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”). However, proceedings in a commercial arbitration court (e.g. ICAC) in general are far more expensive than in the state court.  Thus, in our view, a decision on which to choose needs to be taken on a case-by-case basis depending on the particular circumstances of each case.

Mediation, a way of resolving disputes without recourse to a judge or arbitrator, is also possible in Russia, which enacted a federal law of mediation in 2011.

Current International Sanctions

While reading this you may wonder whether these processes are affected by the current political situation, with tension and sanctions between Russia and a number of foreign states.  In general, this has of course brought some obstacles, especially in oil & gas, financing and the food industry (prohibition of import of certain food products to Russia), but even in these industries some of the obstacles can be mitigated.  And if your business is small or medium and is not connected with these spheres of activity, we do not believe that it will be affected by the current political situation.

To conclude this short introduction to business in Russia, we would like to say that the worries described above as well as others that you may read in the media, while sometimes based on real evidence, are exaggerated and business in Russia is still worth doing.  This is especially true if a foreign investor in a Russian business undertakes intensive preparatory work so as to protect itself from the unique Russian problems and risks described above.  The thousands of foreign companies that come to Russia every year and the numbers of newly opened Russian businesses are quickly realizing that most of the problems are manageable.

Author Profile

Nikolay is a Russian in-house lawyer living in Moscow. He has been dealing with foreign business since 2005 and has participated in a number of projects which have included the full-scale legal support and management of start-up projects in Russia. Nikolay has experience in the organization and management of businesses in Russia and believes that his core goal as a lawyer is to bridge the gap between the reality in Russia and foreign perceptions, by providing high quality legal services and business consulting. Nikolay is responsible for the Russian section of the ContractStore –  see them at contractstore.com/russiancontracts

Russian-English Contracts Launched

We’ve launched a collection of Russian-English legal templates, to make business easier between Russia and English-speaking nations. There are six documents available so far, with many more to be published over the coming weeks.

View the collection at www.contractstore.com/russian-contracts

British-Russian Trade Interests

Despite the current situation, there is still substantial business going on between Russia and the UK, as well as the rest of the world.  Indeed, according to the London Chamber of Commerce, trade between Russia and the UK has increased by 21% each year since 2001 and Russia is the fastest-growing export market for the UK.

Differences of approach between English and Russian business can be helped by dual language documents and the new Anglo–Russian documents include contract forms designed for the appointment of a sales agent or distributor as well as agreements for consultancy services, a form of employment contracts and confidentiality agreement.

ContractStore’s Director, Giles Dixon, himself a solicitor, developed the contracts with his Russian colleague, a Moscow-based lawyer with substantial commercial experience in dealing with foreign businesses.

As with all our documents, the new Russian collection is prepared in MS Word format and is easily editable.  Users pay online and then download the template onto their PC.

Are you ready for the changes to the CDM Regulations?

The Construction (Design and Management) Regulations 2015 are due to take effect on 6 April 2015.  The main purpose of the regulations has been, and continues to be, improving health and safety on site and reducing risks for those in the construction industry.  A stated aim of the HSE is to make the regulations easier to understand, in particular for SMEs.

The main changes are set out below and will apply to all construction projects that commence after 6th April. For projects which commence before that date, there is a six-month grace period before the new regulations kick in.

The main changes are:

  • The role of the CDM Co-ordinator is being replaced by that of a Principal Designer.
  • Every project must have a construction phase plan drawn up before the construction phase begins.
  • The new regulations will apply to domestic projects.
  • HSE Notification Requirements will apply to some domestic projects as well as commercial

The role of the CDM Coordinator is being replaced by a Principal Designer.

The principal designer’s role will be to plan, manage, monitor and coordinate health and safety in the preconstruction phase of a project. The regulations require the principal designer to be a designer who prepares or modifies the design or who arranges for the design to be prepared or modified.  Thus, someone who is a health and safety expert but is not involved in the design process would not be qualified to take on the role and the most obvious candidate for the great majority of projects will be the architect.

A principal designer has to be appointed if there is more than one contractor involved on a project.

In the case of a commercial project where the architect is appointed as principal designer and the client intends to novate the architect’s appointment to a design-build contractor, it may be appropriate for the architect to have two contracts with the client – one as architect and the other as principal designer.

If the principal designer’s appointment is terminated before the end of the project, the client should ensure that the health and safety file is passed to the principal contractor

Where a CDM Co-ordinator is appointed on a project that begins before 6th April, if the project continues beyond 6th October 2015, a principal designer has to be appointed to replace him.

Every project must have a construction phase plan drawn up before the construction phase begins.

Regulation 4 (5) states that a client must ensure that

(a) before the construction phase begins, a construction phase plan is drawn up by the contractor if there is only one contractor, or by the principal contractor; and

(b) the principal designer prepares a health and safety file for the project which is updated as appropriate during the project.

The construction phase plan must set out the health and safety arrangements and site rules taking account, where necessary, of the industrial activities taking place on the construction site and more detail is contained in Regulation 12.

As at present, the client has to appoint a principal contractor if there is more than one contractor.  The principal contractor must be appointed early enough to help the client in his duty to ensure that the construction phase plan is prepared before construction commences.

The new regulations will apply to domestic projects. 

A “domestic client” is someone who has construction work done which is not in the course of the client’s business – e.g. someone having work done on their own home or that of a family member.

The regulations assume that where there is only one contractor on a domestic project, the duties will be carried out by that contractor or by the principal contractor.   If a domestic client does not make appointments under the regulations, the designer in control of the pre-construction phase will be the principal designer and the contractor in control of the construction phase will be the principal contractor.

HSE Notification Requirements will apply to some domestic projects as well as commercial.

Projects have to be notified to the HSE (Health and Safety Executive) before work commences if the project will exceed 30 construction days with 20 or more workers working simultaneously at any point in the project or if the project period exceeds 500 person days.   If any of these thresholds is met on a domestic project, the duty to notify will fall on the principal contractor or principal designer.

HSE Guidance and the text of the new regulations can be found at:

http://www.hse.gov.uk/pubns/books/l153.htm

The regulations were laid before Parliament in January 2015.

New Public Procurement Regulations come into effect on 26 February 2015.

Under the Europe-wide public procurement directives, contracts above a certain value have to be open to competition and publicly advertised when they are being awarded by central government, local authorities and a wide range of public bodies.  The effect of these directives is to open up the award of contracts to competition across the European Union – any company based in the EU can bid.

The new Public Contracts Regulations 2015 in the UK are extensive and adopt the  simplified, modernised approach of the European Commission.

Among the changes are:

 New opportunities for SMEs to bid for public sector work: in the case of central government, contracts with a value of £10,000 or more should be advertised on the Contracts Finder website, with a threshold of £25,000 in the case of local authorities and housing associations

• Modification of existing contracts without the need for advertising a new contract is now stated more clearly than before.  Additional work or services is allowed where a change of contractor cannot be made for economic or technical reasons or where the change would cause significant inconvenience or substantial duplication of costs for the contracting authority. Modification is also permissible where the value of the change is below 10% of the initial contract value in the case of service and supply contracts or 15% for works contracts

• Grounds for refusing an award to a contractor include any bidder who has “shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract”.  Any bidder who has been convicted of conspiracy, corruption, bribery and a range of other offences must not be awarded a contract.

• Payment terms – public sector contracts must provide for payment within not more than 30 days from receipt of a valid invoice.
The Public Contracts Regulations 2015 can be found here:
http://www.legislation.gov.uk/uksi/2015/102/contents/made

A useful summary of the new regs can be found here.

New Law to Help Self Builders moves forward

A Government bill to help enable more people to build their own homes has passed its final stage in the House of Commons. It has all party support and goes to the House of Lords this week.

The purpose of the Self Build and Custom Housebuilding Bill – the brainchild of South Norfolk MP Richard Bacon – is to make it easier for an individual or a group of individuals to obtain land in order to build a house to live in. It places a duty on local councils to keep a register of people who wish to build their own home and who are actively seeking to acquire serviced plots of land in the local authority’s area. The Bill then requires each local council to take account of its ‘self build register’ when exercising the functions of planning, housing, regeneration and the disposal of land.

In Laying the Foundations: a Housing Strategy for England (2011), the Government set out plans to enable more people to build or commission their own home – there is an aspiration to double the size of the self-build market, creating up to 100,000 additional self-build homes over the next decade. Various measures have been introduced to ease the path for those wanting to build their own home including (repayable) funding; an exemption from the Community Infrastructure Levy; amendments to planning guidance; and improved access to public sector land.

Our thanks to NACSBA , the National Custom & Self Build Association, for this information.