Publications

The new antitrust frontier

Fri, 23 Oct 2026 14:18:29 +00:00

On October 14, 2026, Manhattan District Attorney (DA) Alvin L. Bragg, Jr., announced the formation of a new corporate crime and antitrust task force (Task Force) to investigate and prosecute corporate crime.

The Task Force will target complex crimes involving criminal antitrust violations, healthcare fraud and consumer fraud. The creation of this task force demonstrates the increased assertiveness of state and local governments in regulating antitrust violations, including through the passage of tougher antitrust laws and launching of criminal investigations and civil litigation. In light of this growing tide, companies and corporate executives should review their corporate compliance programs to ensure their antitrust policies, procedures and training account for the varying patchwork of state and local antitrust laws.

The Task Force

Manhattan’s new Task Force will target fraud and misconduct by corporations and corporate executives, focusing on identifying and eliminating the systems and structures that foster corporate crime. Companies or corporate executives conducting business in New York City should consider the Task Force’s jurisdiction.

The Task Force will be led by Matthew Bogdanos, a veteran attorney at the Manhattan DA’s Office, and supported by approximately five assistant DAs and two investigative analysts. The announcement also indicates that the Task Force will partner with New York state level officials, potentially to pass new laws and increase criminal penalties for misconduct.

The rise of local and state enforcement

The Task Force exemplifies a broader effort by state and local governments to target antitrust violations impacting their jurisdictions, in part to compensate for a perceived lack of federal enforcement. These activities range from passing legislation to expand the state’s antitrust enforcement mechanisms, state-level premerger notification requirements and state-level merger challenges. In particular, some states have increased criminal penalties for violating their antitrust laws in recent years, including Colorado and California. For more information on recent, new state laws, see the Firm’s recent client alerts on the Pennsylvania-led merger challenge and California’s new COMPETE Act.

Other state attorneys general – like California, Oregon, New York, Nevada and Washington – have sought to boost resources from their respective states for focused antitrust enforcement. For example, in June 2026, Oregon Attorney General (AG) Dan Rayfield secured approval for 16 new antitrust enforcement positions within the Oregon Department of Justice. While many state AG offices do have antitrust units, the Task Force is the first local entity dedicated to enforcement of antitrust issues. It remains to be seen whether other local entities will follow suit, or if state attorneys general will be the primary antitrust enforcer for local- and state-level issues.

States have also filed more antitrust enforcement actions than in previous years. According to the National Association of Attorneys General, state AGs initiated 15 antitrust enforcement actions in 2026 alone, surpassing the filings of each of the past five years. The industries impacted have ranged from healthcare to energy to food. In addition, states have increasingly formed multistate coalitions to target antitrust misconduct in certain industries, including artificial intelligence (AI), consumer financial services, healthcare, privacy and marketing. For example, in June 2026, 17 states and the Department of Justice resolved an enforcement action against egg producers alleging price-fixing. For more about state and local enforcement priorities, listen to our antitrust podcast, Antitrust Amplified.

Key takeaways

Local Enforcement is on the rise– While the federal government has historically driven antitrust enforcement, state and local agencies have become more assertive, including by passing new antitrust laws, increasing penalties and filing more enforcement actions.
Compliance must account for state and local laws– Companies should review their compliance programs to ensure that they account for the disparate patchwork of antitrust laws at the federal, state and local effort. Training should also cover the industries and conduct most impacted by enforcement actions, including healthcare, AI and pocketbook issues such as the increased cost of food.
Antitrust violations can be prosecuted criminally, even by the states
– Companies and executives should be reminded that antitrust violations in the form of pricefixing, bid-rigging and market allocation schemes by competitor companies are crimes under the Sherman Act (15 U.S.C. § 1), as well as under state law. Companies and executives should be cognizant that certain antitrust violations could result in significant corporate fines and jail time for individuals.

When the wrongdoer is unknown

Wed, 21 Oct 2026 12:00:00 +00:00

What can you do when your property has been stolen or misappropriated, but you do not know who is responsible? Whether the subject matter is money, cryptocurrency, confidential documents or commercially sensitive data, identifying the perpetrator is often difficult, particularly where transactions cross borders or run through digital platforms.

A recent English High Court decision, Wilden v Person Unknown & Anor [2026] EWHC 1355 (KB), illustrates two important points. First, it is not always necessary for victims to identify the wrongdoer before seeking urgent court intervention to protect their assets and pursue recovery. Secondly, courts can make orders for the disclosure of information needed to pursue legal action.

The decision

In Wilden, Deputy High Court Judge Guy Vassall-Adams KC continued, until trial:

A proprietary and worldwide freezing injunction against the unidentified fraudster
A disclosure order against Huobi Global S.A, the company believed to own the HTX cryptocurrency exchange, which was believed to hold the stolen Bitcoin and the information needed to identify the perpetrator.

The claimant, a German businessman, received a cold call from a man identifying himself as “Brian Smith”, who offered to help him recover Bitcoin stranded on a platform that had closed in 2021. Smith persuaded him to buy fresh Bitcoin and send it to wallets that Smith controlled, as part of supposed regulatory steps. Over December 2025 and January 2026, the claimant purchased about €2.6 million (approximately AUS$4.2 million) before being locked out.

Forensic investigators traced the Bitcoin through 49 transactions into two “scam wallets” and onwards to infrastructure associated with HTX. The perpetrators had pooled the funds with other assets to obscure their origin, but the investigators were still able to isolate the claimant’s share. The investigators noted that a centralised exchange, such as HTX, would be expected to hold know-your-customer information on the account holder.

Freezing injunction

The Court was satisfied that the requirements for a freezing injunction to protect the traced assets were met:

A good arguable case on the merits
A real risk that any judgment would go unsatisfied due to the dissipation of assets
That it was just and appropriate, as a matter of discretion, to grant the injunction

The claimant had a good arguable case in deceit, and the Court accepted that cryptocurrency could attract proprietary rights and remain identifiable despite mixing with other assets. The Court also found a “very high” risk of dissipation, given the perpetrator’s attempts to conceal the Bitcoin through pooling transactions and the exchange’s failure to assist in its recovery.

Disclosure order

An order requiring disclosure of information about the customer was made against Huobi under the Bankers Trust jurisdiction, applying the principles enunciated in Kyriakou v Christie Manson & Woods [2017] EWHC 487 (QB). These require:

Good grounds for believing that identified assets belong to the claimant
A real prospect that the requested information will lead to their location or preservation
The court being in position to make appropriately tailored orders that are no wider than necessary to achieve the interests of justice
The orders being appropriate when the interests are the parties are balanced
The offering of appropriate undertakings as to damages In this case, the Court was content to accept the claimant’s undertakings despite his limited means, as the fraud had taken his life savings.

The Court also addressed a practical obstacle: how to notify parties who cannot easily be found. It gave permission to serve the application on Huobi, a Panama-incorporated company, outside the jurisdiction, and allowed service by email. It also allowed the claim to be served on the unknown fraudster by email.

Finally, the Court awarded the claimant his costs of £60,993.91 (approximately AUS$116,000) on an indemnity basis against both defendants. It described Huobi’s failure to engage with the claimant’s requests for information as “wholly unreasonable”, noting that a cooperative response might have avoided a costs order.

In practical terms, what this case demonstrates is that not knowing a defendant’s identity or location need not stall urgent proceedings.

The position in Australia

Comparable remedies are available in Australia. Australian courts have jurisdiction to grant freezing orders over assets located within or outside Australia, together with ancillary orders for disclosure of information concerning those assets. These powers are reflected in the Federal Court Rules 2011 (Cth) (rr 7.32-7.37) and equivalent rules of state and territory courts.

Australian courts have also granted injunctions against unidentified defendants. By way of example, in HWL Ebsworth Lawyers v Persons Unknown [2024] NSWSC 71, the Supreme Court of New South Wales restrained unidentified hackers from using or disclosing confidential information obtained through a cyberattack. Similarly, in Qantas Airways Ltd v Persons Unknown [2025] NSWSC 776, the Court considered urgent injunctive relief against unidentified persons following a cybersecurity incident.

Preliminary discovery and other disclosure mechanisms may also assist in identifying unknown wrongdoers and tracing misappropriated assets.

Importantly, these remedies are not limited to cryptocurrency or conventional financial assets. Depending on the circumstances, injunctive relief may be available where a wrongdoer has misappropriated money, documents or commercially sensitive data, or obtained unauthorised control of digital infrastructure, including through compromised administrator credentials. Although data and confidential information are not necessarily recognised as property under Australian law, they may be protected through equitable obligations of confidence and appropriately framed injunctions.

Key takeaways

Not knowing the wrongdoer’s identity does not prevent urgent court action. Freezing and disclosure orders can work together to preserve assets and identify those responsible.
Early forensic tracing is critical. Evidence that the assets remained identifiable despite pooling underpinned both orders.
Platforms that stonewall legitimate requests risk being joined to proceedings and facing indemnity costs.
Acting early is essential in preserving evidence, preventing further loss and improving the prospects of recovery.

Two significant updates for UK exporters: Pause in UK classification advice and wider open licences for dual-use and military exports

Wed, 21 Oct 2026 10:43:04 +00:00

UK exporters are responsible for establishing whether their goods, software or technology are subject to export controls and for ensuring that any required licence is in place before export. Where such a distinction was unclear, exporters could seek advice from the Export Control Joint Unit (ECJU), the UK government’s export licensing body, through its Control List Classification (CLC) Service.

ECJU paused this service on 12 October 2026 and will not process new requests. That said, exporters remain responsible for determining whether their items are controlled and may now need to rely more on their own expertise or independent advice.

Two days later, ECJU widened several open general export licences (OGELs), which allow registered exporters to make eligible exports without applying for an individual licence. These changes may reduce licensing delays, but businesses must still establish that their items and the proposed export meet the relevant licence’s terms. The wider permissions therefore arrive at a time when official help with that initial classification is less readily available.

The classification service and licensing delays

ECJU introduced the pause to give licence applications priority. It says that increasingly complex cases have made it harder to provide classification advice while processing applications without undue delay. Requests received before 12 October will still be answered, although replies may take longer than usual. ECJU is considering how to provide the service more efficiently and has promised an update before the end of 2026, but has not set a date for it to resume.¹

When ECJU restored the service in June 2018, following a four-year suspension for operational reasons, it asked exporters to examine their items against the relevant controls before seeking advice. Its replies relied on the information supplied and did not relieve exporters of their legal obligations. The service offered guidance on an exporter’s conclusions, rather than approval for a particular export.²

The pause comes amid percentages slightly behind target in processing standard individual export licences (SIELs), which ECJU considers case by case. Its target is to process 70% of applications within 20 working days. In the first quarter of 2026, the latest published period, it closed 55% within that time on its older licensing system and 66% on its newer system. ECJU reports the systems separately because their methods differ. Both results fell below the target, providing context for the decision to give licence applications priority.³

Wider open licences

The dual-use OGEL is one of the licences whose scope has been widened. It covers items that can have both civil and military uses. Introduced in June 2026, it combined two earlier general licences and added South Korea, Singapore, Chile, Uruguay and the specified British Overseas Territories. ECJU based that expansion on a review of earlier licensing decisions, which showed that the exports concerned had consistently been approved and presented a low risk.

The October version adds Bahrain, Botswana, Brunei, Jordan, Kuwait, Mauritius, Morocco, North Macedonia, Oman, the Philippines, Qatar and Seychelles. This is therefore an excellent time for any exporters reviewing the dual-use OGEL to see if its expanded scope will be of benefit.

The changes also extend the two OGELs for military goods, software and technology. The broader licence now permits eligible exports to commercial and government/NATO end-users in Switzerland, Liechtenstein, South Korea and 14 EU member states. The licence for government and (where applicable) NATO end users adds Brunei, Chile, Jordan, Kuwait, Montenegro, North Macedonia and Oman. ECJU estimates that the October changes could remove the need for more than 800 SIEL applications each year, allowing its staff to devote more time to sensitive cases.⁴ For exports that qualify, the practical benefit is less dependence on individual licensing decisions and the delays that may accompany them.

How can we help?

Our International Trade & Foreign Investment Practice advises businesses on the UK controls that apply to their goods, software and technology, and on the licences available for their exports. We work with legal, compliance and technical teams to examine how product specifications relate to the control lists and to resolve questions about classification. We also advise on whether proposed exports fall within an open licence, taking account of the items, destinations and intended uses involved. For businesses considering the use of open licences, we explain how the conditions and exclusions may affect their exports, as well as advising on record-keeping requirements.

1 Export Control Joint Unit, “Notice to Exporters 2026/22: temporary pause of the Control List Classification (CLC) service” (12 October 2026).

2 Export Control Joint Unit, “Notice to exporters 2018/15: control list classification service to return on 25 June” (21 June 2018).

3 Export Control Joint Unit, “Strategic export controls commentary: 1 January to 31 March 2026” (27 August 2026) S 6.

4 Export Control Joint Unit, “Notice to exporters 2026/23: expansion of military and dual-use open general export licences” (14 October 2026).

Pensions Weekly Update: 21 October 2026

Wed, 21 Oct 2026 09:00:00 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

With less than two weeks to the dashboards connection deadline, Oliver Morley, CEO of the Money and Pensions Service (MaPS), has confirmed that 96% of pension records covered by legislation will have connected to the dashboards ecosystem by the deadline of 31 October 2026. He also said that the remaining 4% of pension providers and schemes have approved connection deferrals, which will eventually lead to in-scope coverage of 100%. Separately, the Pensions Dashboards Programme (PDP) has issued a blog on the current draft reporting standards, which are due to come into force on 1 March 2027. The blog links to guidance on interim manual reporting to MaPS, which schemes are expected to undertake until daily reporting is implemented via an application programming interface.
The Pension Protection Fund (PPF) has published its sustainability report 2025/26. The report compares the PPF’s position in 2020/21 with what it has achieved to date in terms of sustainability. It notes that transition and sustainable assets analysis expanded across all asset classes, with approximately £6 billion of assets under management allocated to sustainable and transition opportunity investments. This represents approximately 19% of total assets. The PPF says that through its stewardship services provider, EOS, it engaged with 640 companies last year and that private markets stewardship was further strengthened through deeper manager oversight, improved reporting and detailed transition risk assessments. A key focus is the PPF’s climate watchlist, which comprises 99 companies that together account for at least 70% of its material financed emissions. Of these companies, 87% met the PPF’s carbon emissions disclosure target, while 79% maintained or improved their transition pathway initiative management quality score.
As part of its 2030 Ready series, Pensions UK has published a guide to using AI within the pensions industry. The guide is intended to help the industry to embrace AI responsibly, while maintaining clear accountability and robust governance. It provides a deep dive into the practical decisions that schemes now need to make around AI to help people have a better income in retirement. Pensions UK says that it is working with The Pensions Regulator’s Pensions Data and Digital Industry Working Group to develop and provide access to a dynamic AI guidance tool.
Our colleagues have published an updated insight looking at the Employment Rights Act 2025 (Act) and its impact on insolvency practitioners and restructuring plans. The insight outlines how the Act strengthens employee protections in a number of areas, including unfair dismissal, collective redundancy consultation, dismissal and reengagement, family-friendly rights and worker protections. It also explains how these changes may increase the procedural complexity and potential cost exposure of restructurings, including higher tribunal penalties and an increased likelihood of claims. The insight reflects changes in the timeline for implementation and updates following further consultation.

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

International dispute resolution update

Tue, 20 Oct 2026 16:15:39 +00:00

Welcome to the IDR update from our world-ranked International Dispute Resolution Practice Group. This is a series of announcements that we send to our clients, friends and colleagues about recent news in our field and how we are working to impact change.

Our update includes:

Paving the way for state enforcement

Mon, 19 Oct 2026 16:55:12 +00:00

On October 13, 2026, the Commonwealth of Pennsylvania sued to prevent Colas Inc.’s (Colas) proposed acquisition of Suit-Kote under Section 7 of the Clayton Act.

The complaint alleges that the transaction will likely lessen or eliminate competition in the provision of asphalt emulsions and pavement preservation services in several Pennsylvanian counties. According to an order filed with the US District Court for the Western District of Pennsylvania, the state has agreed to permit the transaction to proceed subject to divestitures and an additional capacity-expansion requirement.

The challenge illustrates how state enforcers can use merger litigation to secure structural remedies. It also underscores the continued importance of state attorneys general merger enforcement, even in the absence of federal intervention, particularly where transactions threaten competition in localized markets.

The transaction and Pennsylvania’s challenge

Colas owns and operates asphalt emulsion plants and storage facilities, and provides asphalt emulsion and pavement preservation services in Pennsylvania. In August 2025, Colas agreed to acquire rival Suit-Kote, which distributes liquid asphalt, manufactures emulsion mixes, and provides road construction and pavement preservation services. These products and services are used by government agencies and other purchasers to maintain and extend the useful life of roads.

Pennsylvania Attorney General Dave Sunday filed suit in the US District Court for the Western District of Pennsylvania to block the transaction under Section 7 of the Clayton Act (Section 7).¹ Section 7 prohibits mergers and acquisitions where the effect of the transaction “may be substantially to lessen competition, or to tend to create a monopoly” in any part of the country.²

According to the complaint, Colas and Suit-Kote are two of only four significant competitors in the asphalt emulsions market and significant competitors in the pavement preservation services market, meaning the acquisition would likely reduce the number of competitive alternatives for government purchasers for these services and enable the combined entity to raise prices with no competitive restraint. Such increases could raise road maintenance costs for Pennsylvania’s state and local governments and, ultimately, taxpayers.

Although Pennsylvania filed suit challenging the acquisition, the Commonwealth has reportedly agreed to permit the transaction to proceed subject to remedies. Those remedies reportedly include the divestiture of four factories and a requirement that Colas expand capacity at one asphalt emulsion plant before completing the divesture. The combination of asset divestitures and a capacity-expansion obligation reflects an effort not merely to transfer assets, but to preserve effective competitive capacity in the affected markets.

Notably, Pennsylvania brought its challenge without a parallel enforcement action by the Federal Trade Commission (FTC) or the Department of Justice (DOJ). Although the absence of federal intervention does not necessarily indicate that the agencies reviewed and cleared the transaction, the case illustrates how state attorneys general can independently pursue merger challenges where they identify competitive harm to businesses and consumers within their jurisdiction. State enforcers may place particular emphasis on localized competitive effects, including potential increases for public procurement and essential infrastructure projects, even where a transaction has not prompted federal enforcement. The action serves as a reminder that the absence of federal challenge does not necessarily provide dealmakers with certainty that a transaction will proceed without antitrust scrutiny.

The rise of state antitrust merger enforcement

This case comes amid a broader shift in US antitrust enforcement with states increasingly pursuing independent challenges, requiring premerger notification filings, and more broadly seeking to fill perceived gaps in federal antitrust enforcement.

State-led merger challenges

Pennsylvania v. Colas Inc. et al. is not the first case where state attorneys general, without the participation of federal enforcers, have brought Section 7 cases to seek an injunction of a merger. There have been two other high-profile cases initiated just this year:

On March 18, 2026, a coalition of eight states filed a lawsuit seeking to enjoin the merger between Nexstar Media Group, Inc. and Tegna Inc., alleging the merger violated Section 7 as it would likely substantially lessen competition in the broadcast programming market. The US District Court for the Eastern District of California, on April 17, 2026, granted a preliminary injunction halting the merger during the pending litigation. The preliminary injunction was granted despite the fact the parties received merger approval from the DOJ, which granted early termination in March 2026. Litigation remains ongoing, with the states challenging an apparent violation of the court’s hold separate order in July.

In July 2026, twelve state attorneys general filed suit in the US District Court for the Northern District of California seeking to prevent Paramount Skydance Corporation’s acquisition of Warner Bros. Discovery, Inc. The states alleged that the transaction would “inflict substantial harm” on the entertainment industry. Notably, the suit came the day after the DOJ cleared the transaction, finding it did not present any competition concerns. In September 2026, Paramount reached a settlement with the state attorneys general, which will presumably allow the merger to move forward.

State-level premerger notification requirements

In addition to challenging potentially anticompetitive mergers in federal court, states have increased their involvement in the premerger review process. Three states – California, Colorado and Washington – have enacted the Uniform Antitrust Pre-Merger Notification Act (UAPNA).³ UAPNA, or “Baby HSR,” requires parties to concurrently file their federal premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) with the state attorney general if certain state nexus requirements are met.

Failure to file under the Baby HSRs may result in state civil penalties. With Baby HSR legislation pending in additional states, state attorneys general may gain greater opportunities to scrutinize transactions affecting local competition.

Beyond the Baby HSRs, many states have adopted healthcare transaction-specific notification requirements. To date, fourteen states have active healthcare transaction notification regimes, and two more states have laws that will go into effect in early 2027.⁴ These laws impact a wide variety of healthcare service providers, including hospitals, hospital systems, medical groups and physician practices, with some laws targeting transactions involving private equity groups or venture capital investing in healthcare practices. Notably, the laws vary by jurisdiction, making it crucial for businesses involved in these spaces to be aware of each jurisdiction’s requirements.

Key takeaways for dealmakers

The Colas–Suit-Kote challenge reinforces the increasingly important role of state attorneys general in merger enforcement and highlights several practical considerations for companies contemplating transactions:

Federal inaction does not eliminate antitrust risk – State attorneys general may independently investigate and challenge transactions even where the FTC or DOJ has declined to intervene. As federal merger litigation has slowed, state enforcers have demonstrated a growing willingness to pursue their own enforcement priorities and address perceived gaps in federal oversight.
Localized competitive effects can drive state enforcement – Transactions involving regional businesses may attract scrutiny even where their national market implications are limited. States may be particularly focused on transactions affecting concentrated local markets, government procurement, essential infrastructure and costs to taxpayers.
State enforcement can materially affect deal terms and timing – Pennsylvania’s reported resolution illustrates how state challenges can result in significant structural remedies, including divestitures and related operational commitments, even without parallel federal enforcement. Parties should assess potential remedies early and consider the implications for transaction economics and closing certainty.
State antitrust risk should be incorporated into transaction planning – Parties should evaluate state-level premerger filing requirements and enforcement exposure alongside federal merger review, particularly where a transaction involves significant local competitive overlaps. Regulatory strategies, transaction agreements and closing timelines should account for potential state investigations and challenges, recognizing that HSR clearance does not insulate a transaction from subsequent state enforcement.

As state attorneys general continue to take a more prominent role in merger enforcement, early identification of state-level competitive concerns will be increasingly important to managing regulatory risk and preserving deal certainty.

Pennsylvania v. Colas Inc. and Suit-Kote Corporation, Case No. 3:26-cv-01979 (W.D. Penn. Oct. 13, 2026)..
Clayton Act, Section 7 (15 U.S.C. § 18)
Colorado and Washington adopted UAPNA in 2025, and premerger notification requirements are currently in effect. California enacted UAPNA in February 2026, which will go into effect January 1, 2027.
States with active healthcare transaction notification regimes include California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Massachusetts, Minnesota, Nevada, New York, New Mexico, Oregon, Rhode Island and Washinton. Maine’s and Vermont’s regimes will go into effect in January and March 2027, respectively.

Congressional investigations after the midterms

Mon, 19 Oct 2026 09:00:00 +00:00

If Democrats win either chamber of Congress in the upcoming midterm elections, they are likely to launch a wave of investigations. Congressional investigations are one of the most powerful tools available to Congress and can create significant legal and reputational challenges for both subjects and witnesses. Below, we address some of the most common congressional investigation related questions.

What is a congressional investigation?

Congressional investigations occur when a House or Senate committee examines a topic for the purpose of considering legislation or conducting executive branch oversight. Congress typically uses tools such as investigative letters, subpoenas for documents and oral testimony, and public hearings to conduct its investigations.

Can Congress investigate whatever it wants?

As long as Congress is acting pursuant to a valid “legislative purpose,” e.g., to consider possible legislation or conduct executive branch oversight, Congress’s investigative authority is wide-ranging.

Can I ignore a congressional subpoena?

No. Among other negative consequences, willfully ignoring a congressional subpoena exposes the recipient to the possibility of criminal contempt charges.

Can I negotiate the scope of a congressional subpoena?

Yes. Experienced congressional counsel can engage with committee staff and seek to negotiate the scope of a congressional subpoena.

How and when would a congressional investigation of my organization begin?

A congressional investigation typically begins with a letter from a member of Congress, usually the current or incoming chairperson of a committee, requesting information or documents from your organization.

When a chamber of Congress changes hands, incoming chairs can send letters as early as November or December, before they have taken control of the committee, or wait until January or February, when the committee is fully organized.

What happens next?

Committee staff typically review any materials you produce and may then seek to interview members of your organization.

How can counsel help defend my organization in a congressional investigation?

Effective representation by counsel in a congressional investigation has many components, such as:

Anticipating tactics that are often undertaken by committee staff
Pushing back on committee demands when appropriate
Strategically engaging with the committee’s minority staff
Navigating any legal issues that are specific to congressional investigations, such as executive privilege
Ensuring that any interviews of your organization’s employees occur under conditions that are as favorable as possible to your staff

How do congressional investigations end?

A successful congressional investigation usually ends in a high-profile hearing that is accompanied by the release of a final written investigative report, and, occasionally, with the passage of related legislation.

Can my personnel avoid being called to testify at a public hearing?

Experienced congressional counsel can help negotiate the forum for testimony of your organization’s employees, including by seeking closed-door testimony when possible.

How do congressional investigations differ from criminal investigations?

There are several key differences including:

The purpose of a congressional investigation is legislative rather than law enforcement
Congressional investigations are largely driven by political dynamics
The existence of common-law privileges, such as the attorney-client privilege, is less certain in congressional investigations
Congressional investigations are typically more public than criminal investigations and thus often pose more immediate reputational risks

What topics and industries might incoming Democratic chairs prioritize?

Congressional investigation priorities often shift quickly. As of this writing, likely investigative targets include, but are not limited to:

President Donald J. Trump’s physical construction projects in Washington DC
Allegations of pay-to-play between the Trump administration and private companies
Claims of improper enrichment by President Trump and his family members
The war in Iran · Immigration enforcement activities
The impact of the Department of Government Efficiency (DOGE) on the civil service
Artificial intelligence (AI)
General affordability concerns

How can my organization prepare for a congressional investigation?

You can work with counsel over the next few months to:

Assess your risk profile and internal exposure
Conduct internal interviews and review key documents
Review your internal policies and procedures
Learn about the individual members and committees that are interested in your organization and the political dynamics that drive them.

By the beginning of the 120th Congress, you and your counsel should have a sense of your strengths and weaknesses and what your general strategy will be if you receive a committee letter.

Conclusion

For more on this topic, listen to this interview that Giancarlo Pellegrini, who chairs the firm’s Congressional Oversight & Investigations Practice, conducted with Tom Firestone, Global Chair of the Firm’s Government Investigations & White Collar Practice.

US port fees and import restrictions against Spain: US Federal Maritime Commission’s proposed measures

Thu, 15 Oct 2026 13:45:17 +00:00

On October 14, 2026, the US Federal Maritime Commission (FMC) proposed its remedies against Spain in response to an investigation initiated in December 2024 into actions by the government of Spain that allegedly impaired the access of US flagged vessels to Spanish ports, or that impacted US trade with foreign ports. The Federal Register notice on this final phase of the investigation and a proposed rulemaking setting out the remedies or responses to Spain’s action will be published on October 15, 2026.

Among the proposed remedies is a US$200,000 fee each time a Spanish-flagged vessel enters a US port from abroad, as well as import restrictions (effectively an import ban) on certain goods exported from Spain. The proposal follows an investigation into Spain’s refusal to admit vessels carrying cargo bound for, or coming from, Israel. It could affect Spanish exporters and US importers, as well as carriers whose vessels are registered or flagged in Spain.

The FMC has formally found that Spain’s conduct created conditions unfavorable to shipping in US foreign trade. The proposed remedies, however, have not yet taken effect. The FMC is providing a 60-day comment period, which will begin on October 15 with the publication of the Federal Register notice, after which these remedies can go into effect.¹

Key points

The FMC’s proposed rule could add significant disruptions and costs to Spanish exports to the US in core goods and commodities that make up a significant portion of export revenue.
Shippers and importers that use non-Spanish carriers and vessels may nevertheless be impacted by the proposed rule.
The FMC’s rule is not yet final, and companies that may be affected by the proposed rule have an opportunity to comment.

Background

The investigation began in December 2024, following reports that Spain had refused access to three vessels in the Maritime Security Program the previous month. That program supports a US-flagged commercial fleet available for military sealift in a national emergency. According to the notice, the vessels were reported to be carrying cargo to or from Israel and diverted to Morocco after Spain refused them entry. The initial investigation attracted more than 8,000 comments, and the FMC sought further comments in December 2025.

Spain’s position was that it had refused permission for containers to transit, rather than barring the vessels themselves. It also maintained that its measures applied Spanish, EU and international law without discrimination and fell outside the FMC’s jurisdiction. In September 2025, Royal Decree-law 10/2025 required the refusal of transit authorizations for defense and dual-use material to or from Israel. The FMC concluded that the evidence (some of which it received confidentially and did not disclose) established refusals of the vessels themselves. It also rejected the argument that compliance with Spanish law prevented US action, since the statutory power expressly concerns conditions arising from foreign laws or regulations.

The FMC relies on the current codification of Section 19 of the Merchant Marine Act of 1920, 46 U.S.C. §§ 42101-42109. Once the commission finds unfavorable shipping conditions, the FMC can impose remedies that include limits on voyages or cargo and fees per voyage. The statutory fee ceiling is US$1million, increased to approximately US$2.36 million under the current inflation adjustment. Section 42107 provides for enforcement at the FMC’s request through the collection of imposed fees, refusal of clearance, denial of entry or detention of vessels.²

Proposed fees restrictions

The proposed US$200,000 fee would apply whenever a vessel registered under a Spanish flag enters a US port from a foreign port or place. The trigger is therefore the vessel’s flag and its entry into port, rather than the origin of its cargo or the nationality of its customers. The amount reflects an approximate inflation adjustment to the US$100,000 fee imposed on three Japanese carriers in 1997. The FMC acknowledges that relatively few Spanish-flagged vessels call at US ports, and that the fee alone would not address the conditions identified in the investigation.

The proposed import or cargo restrictions could have much wider commercial effects. They cover goods exported from Spain intended for import into the US within five entire chapters of the Harmonized Tariff Schedule, including perfumery and cosmetics, oils and fats, ceramics, articles of stone, and sugar and confectionery, respectively. The chapters cover a broader range of goods than those examples alone.³ On the FMC’s figures, imports within these categories amounted to approximately US$3.1 billion in 2025, including about US$837 million of olive oil. This represents approximately 14% of Spain’s total exports to the US.

Although the fee would apply to Spanish-flagged vessels, the proposed cargo provisions extend to vessels or ocean carriers of any flag. A vessel that unloads covered goods in a US port could be refused clearance until those goods are reloaded, and efforts to off-load or deliver such goods would likely be denied entry to the US at a US port of entry. A vessel seeking to carry or off-load such goods could be denied entry or detained. The consequences could therefore reach carriers and customers with no Spanish connection beyond the cargo concerned.

The final scope remains open. The FMC presents the five chapters as a selection from which it may adopt a narrower remedy, while the draft also contemplates higher fees and additional goods if Spain retaliates. Separately, the notice offers Spain and other interested parties a hearing under Section 41108(d). Following the required procedure and finding, this proposed rulemaking could support imposition of the remedies under Chapter 423, which implements the Foreign Shipping Practices Act of 1988. Orders under Section 41108 are also subject to a statutory process for presidential review before taking effect.⁴

Legal status

The notice does not make the proposed fee payable until after the administrative process is complete, and port calls during the comment period will not result in liability. Nor does it prohibit the covered exports merely because the FMC has made this recommendation. However, the proposed remedies can go into effect once the FMC completes this notice and comment procedure, unless parties convince the FMC to modify its recommendation.

The timing of a final rule remains an open question. The FMC considers that the Administrative Procedure Act’s foreign affairs exception permits it to dispense with notice and comment, although it has elected to invite submissions here. Its own regulations also permit rules following findings without further proceedings and generally provide 30 days between publication and effect, subject to an exception where conditions warrant and good cause exists. The consultation therefore provides an opportunity for comment, but it does not establish a fixed period between its conclusion and the start of any restrictions.

The proposal contains no provision protecting cargo already in transit when a final rule takes effect, although in a number of recent trade actions the US government has allowed a grace period for the entry of products already in transit when the final measures take effect. Goods dispatched while the consultation remains open could theoretically arrive after the relevant restrictions have begun. That is distinct from charging for port calls completed before a rule’s effective date: retroactive rulemaking generally requires express congressional authority, which Chapter 421 does not provide. The treatment of goods already booked, loaded or at sea would depend on the final text, including any transitional provisions the FMC may introduce.

Other aspects also remain unresolved. The draft does not identify who would pay the fee or the payment deadline. Its reference to goods exported from Spain does not establish a rule based solely on Spanish origin, leaving questions about foreign goods shipped from Spanish ports and Spanish goods routed through third countries. There is also a statutory question over the proposed action against vessels of any flag, because Section 42107 refers to vessels of a country named in an FMC regulation. These points could affect both the operation of the measures and their legal basis.⁵

Consultations

The notice invites comments on all aspects of the proposal within 60 days of publication. If publication occurs on October 15 as scheduled, that period would end on December 14, 2026, subject to the deadline stated in the published notice. Exporters, importers, carriers and other interested businesses may participate. The breadth of the tariff chapters, the treatment of cargo in transit and the meaning of exports from Spain are among the matters on which the final rule may provide greater clarity.

If a final rule is adopted, judicial review would ordinarily lie in a federal court of appeals under the applicable review provisions. An aggrieved party to the proceeding generally has 60 days from entry of the final order to petition for review. A petition does not suspend the measure automatically; suspension would require a separate stay.⁶ In other recent trade and tariff measures, the courts have been reluctant to grant stays during the pendency of the appeals.

The earlier dispute with Japan illustrates the possibility of a negotiated outcome. The 1997 fee took effect in September, and the FMC moved toward enforcement when the carriers declined to pay. The governments agreed to reforms before any ships were detained. The FMC subsequently accepted US$1.5 million in settlement of US$4 million owed and suspended the rule. That history does not determine the outcome for Spain, but the present notice likewise recognizes that final remedies could be withdrawn following a negotiated, diplomatic solution.⁷

For affected businesses, the uncertainty concerns both the measures ultimately chosen and the point at which they might apply to particular shipments. A narrower list of goods, transitional arrangements or a diplomatic agreement would produce different consequences from adoption of the draft in its present form. Until the process advances, the proposal signals potential changes to the cost and availability of trade with the US, while leaving their final extent unresolved.

How can we help?

Our International Trade & Foreign Investment Practice advises exporters, importers, shippers, carriers, commodity traders and the banks that finance them on US, EU and UK trade and sanctions measures. Our team of lawyers in Washington DC includes a former general counsel at the FMC, and former officials of the US departments of Commerce and Justice, with experience in government enforcement and national security litigation. It also includes former senior in-house counsel to a global commodity trading business, including its transportation and logistics operations. We prepare comments and hearing submissions in regulatory proceedings, assess the exposure of supply chains, charters and sale contracts to proposed and final measures, and represent clients in government investigations and in challenges to final rules before the federal courts of appeals.

^{1 FMC,}^{Notice of proposed rulemaking}^{, Docket No. 26-14, FR Doc. 2026-21067.}

^{2 NPRM, Background and Investigation Results;}^{Royal Decree-law 10/2025}^{, art. 1(3); 46 U.S.C. §§}⁴²¹⁰¹^,⁴²¹⁰⁶^and⁴²¹⁰⁷^;^{46 C.F.R. § 506.4(d)}^.

^{3 Nb: HTS chapters 33, 15, 69, 68 and 17.}

^{4 NPRM, Proposed Remedies and proposed 46 C.F.R. § 551.2(b)–(f);}^{46 U.S.C. § 41108(d)–(e)}^{and §§ 42304–42305. The NPRM cites § 42106(4), the fee provision, for the cargo restrictions; the express cargo-limitation power appears in § 42106(1).}

^{5 NPRM, Rulemaking Analysis and proposed § 551.2;}^{5 U.S.C. § 553(a)(1)}^;^{46 C.F.R. §§ 550.508 and 550.601}^;^{46 U.S.C. § 42107}^;^{Bowen v. Georgetown University Hospital}^{, 488 U.S. 204, 208 (1988).}

^{6 NPRM, Dates and Public Participation;}^{46 U.S.C. § 42104}^{; 28 U.S.C. §§}^2342(3)(B)^{, 2344 and}^2349(b)^.

^{7 FMC,}^{37th Annual Report, Fiscal Year 1998}^{, Docket No. 96-20;}^{62 FR 61648}^{(19 November 1997); NPRM, Public Comments.}

EU Drinking Water Directive: What are the challenges?

Thu, 15 Oct 2026 09:47:47 +00:00

The EU regulatory framework on water has substantially evolved in recent years to become a central avenue for the regulation of chemicals and the management of the impact of industrial activities.

This tendency is largely visible in the 2020 Recast Drinking Water Directive. Among other additions, it has introduced a positive list of components that can be used in the composition of materials and products in contact with drinking water.

This broadly encompassing requirement notably concerns starting substances (e.g. ethylene to manufacture polyethylene); compositions (e.g. stainless-steel compositions, based on iron with specified levels of chromium, nickel, molybdenum and other alloying elements); and constituents (e.g. organic substances deliberately incorporated into cement, such as water-repellent or hydrophobic agents, including silanes).

For manufacturers relying on components that are not yet listed, the clock is now ticking.

Strategic decisions need to be made within a short time frame:

Should you notify on your own, or in cooperation with other market actors?
What form should cooperation take?
When should new testing be initiated? Before or after the notification?
What are the consequences if a substance, composition or constituent is not included on the positive list?
How can newly generated data be protected from unjust access by third parties?

While new to the DWD, such considerations largely mirror existing situations under the food contact and biocidal products legislation (PT 4 in particular), chemical data sharing and the wider EU water regulatory framework.

We have significant expertise in all of these domains, and from a commercial perspective, can assist companies from the beginning of their compliance journey with scoping questions (e.g. do I need to submit or am I exempted?), through to defining a compliance strategy, forming and managing consortia or task forces with other companies to share data, costs and know-how and towards the successful submission of petitions for new listings.

Our ability to work seamlessly with scientific consultants in dossier preparation is an added advantage in this space, as is our extensive experience of data sharing arrangements in the context of petitions.

What are the implications for your business?

Compliance costs

Who pays for the data? The positive list regime raises familiar issues for companies with experience of REACH and the EU Biocidal Products Regulation. Businesses are particularly conscious of the need to minimise data costs while ensuring that the burden of data generation is fairly shared amongst market actors, thereby limiting freeriding.

We advise on consortium structures, data sharing frameworks, cost allocation mechanisms and access rights, helping organisations manage both compliance requirements and the commercial consequences of sharing information with competitors and supply chain partners.

Are you funding compliance twice? Many companies affected by the positive list are already managing data sets and registrations/authorisations under other regulatory frameworks (chemicals, PT4 biocides, food contact materials). The challenge is often not generating new data, but understanding how existing data sets or access rights can be leveraged to support DWD compliance, noting that data access under one regime does not automatically amount to access under another regime.

We help businesses identify overlaps between regulatory regimes, assess where existing investments can be reused, and avoid unnecessary duplication of testing, data acquisition and compliance expenditure.

Commercial and legal implications

The hidden commercial opportunity in drinking water compliance. Regulatory approvals can influence competition just as much as product performance or pricing. Businesses that already hold relevant data, possess established portfolios or have experience navigating EU chemicals and biocides legislation, are better placed to secure and maintain market access.

We help clients evaluate how approval requirements may affect supply chains, market entry, product portfolios and relationships with competitors, suppliers and customers, ensuring regulatory decisions are assessed through both a compliance and commercial lens.

Our expertise

Consortia management in the context of REACH, Plant Protection and the Biocidal Products Regulation (establishment of consortium agreements; organising consortium dataset; and day to day management).
Extensive experience advising on data-sharing and compensation arrangements in the chemicals sector, including the negotiation and drafting of consortia and joint submission agreements, letters of access and hardcopy access to data.
Representation of data owners in data sharing disputes before ECHA’s Board of Appeal.
Acting as the interface between scientific consultants and petitioners in requests for approval of active substances under the Biocidal Products Regulation and the EU food contact materials legislation.
Submission of petitions to EFSA for the inclusion of substances in the positive list of substances used to manufacture plastic food contact materials.
Ongoing support to applicants for product-type 4 (disinfection of food contact applications) and product-type 5 (drinking water disinfection) under the Biocidal Products Regulation, including input on implementing laws on the interface between food contact materials and biocides.
Assisting companies in their compliance and testing strategies following requests for information and testing from ECHA and national competent authorities.
Advice to companies in a wide range of sectors (including pharmaceutical and biocides) on the impacts of priority substance listing under the Water Framework Directive.

FCC approves partial roll back of “revoke all” TCPA consent rule

Wed, 14 Oct 2026 16:09:18 +00:00

The Federal Communications Commission (FCC or Commission) has partially pulled back the so-called Telephone Consumer Protection Act (TCPA) “revoke all” consent rule. That requirement, adopted in February of 2024, provided that if a called party uses any reasonable method to revoke consent to receive robocalls or robotexts, “that consent is considered definitively revoked and the caller may not send [any] additional robocalls and robotexts.” A “robocall” is any call made or text message sent using an autodialer, or any call using an artificial or prerecorded message.

After entreaties from a number of affected parties, including consumer groups and financial institutions, the FCC sought further comment on “ways we can modify the requirement that a caller must treat an opt-out request made in response to one type of call to be an opt-out request for all types of calls.” As a result, in its recent October 1 Report and Order, the FCC made the following substantive modifications to its TCPA consent revocation rules.

Modification of “revoke all” rule: Relaxation for informational calls/texts – Callers will now be allowed to “interpret a consent revocation as applying only to the specific category of informational robocalls to which the revocation was directed not all robocalls.” The FCC concluded that “a requirement to treat a revocation request made in response to one type of informational robocall as applicable to all future robocalls unduly restricts consumers’ ability to receive other wanted calls.” So, for example, revocation of consent to receive account balances will not revoke consent for fraud alerts.

Status quo for telemarketing robocalls – The FCC stressed that this relaxation applied to “only informational robocalls” (i.e., calls that do not contain an advertisement or constitute telemarketing). Revocation requests “that contain an advertisement or constitute telemarketing revoke consent to all future robocalls containing an advertisement or that constitute telemarketing from that caller.” Furthermore, the Report and Order reminded callers that a residential subscriber’s do-not-call request “shall apply to the particular entity making the call (or on whose behalf a call is made), as well as affiliated entities if the consumer reasonably would expect them to be included.”

Designation of exclusive means of consent revocation – A caller may now designate an exclusive means to revoke consent, instead of requiring callers to honor all requests made “using any reasonable means.” The Commission specifically allowed such designation of any of the following three revocation request methods: request (a) made using an automated, interactive voice or key press-activated opt-out mechanism on a call; (b) using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel” or “unsubscribe”; (c) sent in reply to an incoming text message or pursuant to a website or telephone number designated by the caller to process opt-out requests. The caller must clearly disclose the designated method for revocation on the call or in the text.

If none of these three methods are prescribed, the caller must continue to process revocation requests made “in any reasonable manner.” Furthermore, this rule modification does not alter the existing opt-out methods specified in the FCC rules for calls made pursuant to an exemption, or that include an advertisement or constitute telemarketing. Callers subject to these requirements (see, e.g., 47 CFR 64.1200(b)(3)) must comply with these obligations and use the opt-out methods specified in the rules.

Other FCC actions: Fraud alert and TCPA rule review – The FCC amended the rule for financial institutions, now allowing exempted communications when the wireless number is obtained “from a reliable source.” These include a telephone number (a) supplied by a spouse or other family member who is authorized to be on the account, (b) obtained when the customer calls the institution or (c) is included in records obtained from other financial institutions. Finally, the Report and Order delegated the Consumer and Governmental Affairs Bureau to conduct a review of the TCPA rules, which have grown increasingly “lengthy and dense.” But no substantive changes will be involved.

Potential further substantive changes: The further notice of proposed rulemaking – The accompanying further notice of proposed rulemaking seeks “further comment on additional revisions that can ensure that the rules continue to evolve with changes in technology and industry practices.” To that end the Commission seeks comments on the following:

Timeframe for honoring revocation requests: Shorten? – The deadline is currently no more than 10 business days after receipt of the request. The Commission seeks comments on shortening, perhaps to seven business days.
Two-way texting required?: Eliminate provision allowing no return texting? – Eliminating the rule provision that allows text senders to use a texting protocol that does not allow consumers to revoke consent by return text.
Revoke all method: Revisit? – Whether callers should be allowed to treat a revocation request as applying to the type of call that prompted the revocation only if the caller provides “a method to revoke consent for all types of messages for which consent is required”; and should such a “revoke all” mechanism be automated.
Affiliates and separate lines of business or divisions: Application of TCPA consent and revocation provisions? – Clarification of the application of the TCPA ‘s consent and revocation requirements where an entity operates through separate affiliates, lines of business or divisions.

Effective and comment dates – The Report and Order provisions become effective 30 days after publication in the Federal Register, which has not yet occurred. The comment dates for the Further Notice are 30 days (initial) and 60 days (reply) after such publication.

Reading the regulatory tea leaves – The Commission is not through with the “revoke all” rule yet, although it may take a different form for informational calls and texts. Additional tightening of revocation implementation timing and elimination of one-way texting may be forthcoming. The Consumer and Governmental Affairs Bureau review of the TCPA rules in general bears watching. Telemarketing robocalls and robotexts will continue under the “revoke all” umbrella. More may follow.

European preference in public procurement

Wed, 14 Oct 2026 14:09:07 +00:00

The European Commission (Commission) has proposed a Public Procurement Act (Proposed Regulation) that would allow public buyers to give EU firms preferential treatment in public procurement across the EU. While the Proposed Regulation does not impose a blanket duty on public bodies to buy European, it would give them greater scope to favour EU and treaty-protected suppliers and supply chains. For UK and US businesses competing for public contracts in the EU, the key question will be not where a bidder is established, but rather whether the bidder and its bid benefit from protection under the EU’s international treaty commitments. UK businesses would be better positioned than US equivalents under the proposal due to the additional protections provided under the EU-UK Trade and Cooperation Agreement (EU-UK TCA).

While the three existing EU procurement directives are implemented through different national laws in each EU Member State, the Proposed Regulation would replace them with a single, directly applicable Act. This would give suppliers and public buyers a harmonised, consistent set of rules across the EU. The Proposed Regulation would also allow more negotiation and refinement of bids during a competition than is currently permitted. It would also reduce the proportion of contracts that are awarded on price alone, by demanding that quality plays a role in most evaluations.

The proposal sits alongside the Commission’s proposed Industrial Accelerator Act, which would introduce targeted “Made in EU” and low-carbon requirements for public procurement in strategic sectors including steel, cement, aluminium, automotive and net-zero technologies. Although the two proposals operate differently, together they illustrate a broader shift towards using public purchasing power to support European industrial capacity, resilience and economic security.

UPDATED: The Employment Rights Act – Impact on Insolvency Practitioners and Restructuring

Wed, 14 Oct 2026 11:16:47 +00:00

This insight highlights the key reforms being introduced by the Employment Rights Act 2025 (Act) that insolvency practitioners should have on their radar when planning future restructurings. It outlines how the Act strengthens employee protections in a number of areas, including unfair dismissal, collective redundancy consultation, dismissal and re-engagement, family-friendly rights and worker protections. It also explains how these changes may increase the procedural complexity and potential cost exposure of restructurings, including higher tribunal penalties and an increased likelihood of claims.

We have updated this insight to reflect changes in the timeline for implementation and updates following further consultation.

New EU sanctions listings concerning Russia

Tue, 13 Oct 2026 16:00:21 +00:00

On 12 October 2026, the Council of the European Union (Council) adopted further restrictive measures against Russia, targeting a large number of companies and executives linked to its defence industries, alongside 77 political figures connected with the September 2026 elections in occupied Ukrainian territory.

The measures add 820 individuals and 826 entities to the existing framework under Council Regulation (EU) No 269/2014. Their reach depends on the identity of the counterparty, who owns or controls it, and who would benefit from the transaction. The consequences can extend to assets already held by a business as well as to contractual obligations that remain outstanding.¹

Background and agreement

The measures follow the European Council’s call of 18 and 19 June 2026 to increase pressure on Russia in response to its escalating aggression against Ukraine. In adopting the defence-related listings, the Council points specifically to the campaign against civilian infrastructure and its consequences for Ukraine’s population and resilience. The immediate purpose is to constrain the industrial capacity supporting that campaign by extending financial restrictions to businesses within Russia’s weapons supply chains.

The Council’s account of the new measures places particular emphasis on suppliers of components used in missiles, drones and aircraft. It states that more than half of the military and industrial listings concern the production chain for ballistic missiles. The targets include suppliers of electronics, communications equipment and navigation systems. This focus helps explain why companies trading in components and equipment may encounter restrictions through their counterparties even where their own products have civilian applications.

Council Decision (CFSP) 2026/2279 (Decision 2279) lists 743 individuals and 826 entities. The entities appear on a recently established Russian government list identifying them as part of the military-industrial complex and eligible for subsidies, while the individuals act as their executives. The Council relies on that connection in explaining their inclusion. Eligibility does not establish that every company has received a subsidy or identify the amount of any payment.

Council Decision (CFSP) 2026/2291 (Decision 2291) addresses the separate political purpose of resisting Russia’s attempts to legitimise its occupation of Ukrainian territory. It adds the 77 political figures connected with the September elections, which the EU condemns as contrary to Ukrainian and international law. Both decisions amend the annex to Decision 2014/145/CFSP.²

Securing this agreement required both legal scrutiny of the proposed names and attention to European supply dependencies. The foreign policy decisions required unanimity among member states, following preparatory work within the Council. Ambassadors reached agreement on 7 October, ahead of formal adoption by ministers on 12 October. Contemporaneous reporting describes several weeks of deliberation and legal review, made particularly demanding by the number of proposed entries.

A specific compromise concerned Estonia’s request to remove a Russian supplier and an associated individual from the proposed list. Estonia’s representation in Brussels confirmed that the supplier provided strategically important materials to an Estonian rare-earth processor serving European industries, including vehicle, wind turbine, electronics and aviation manufacturers.

The processor was seeking alternative sources, and Estonia said it would reconsider the two proposed listings in 2027. The disagreement therefore concerned the disruption that a particular listing could cause to European supplies. The reported outcome was the omission of those two proposed entries, rather than a general exemption for trade in rare earths.³

Financial restrictions and existing contracts

Council Implementing Regulation (EU) 2026/2281 (Regulation 2281) and Council Implementing Regulation (EU) 2026/2292 (Regulation 2292) give effect to those same listings through Annex I to Regulation 269/2014. Both entered into force on publication in the Official Journal on 12 October and are directly applicable in all member states. The two sets of instruments concern the same 1,646 additions.

Article 2 of Regulation 269/2014 requires funds and economic resources belonging to, owned, held or controlled by a listed person to be frozen. Economic resources include assets other than funds that can be used to obtain money, goods or services. Subject to the applicable exceptions, Article 2 also prohibits making funds or economic resources available, directly or indirectly, to a listed person or for that person’s benefit. The first rule can prevent a business from dealing with assets it already holds, while the second can prevent a subsequent payment or transfer from being made to or for the benefit of a listed person.

The restrictions can also affect companies that do not themselves appear in Annex I. The European Commission explains that ownership or control by a listed person gives rise to a presumption that the person controls the company’s assets and benefits from resources supplied to it, although evidence may rebut that presumption in an individual case. An unlisted company may consequently face restrictions because of the rights held by a listed owner or the influence exercised by a listed person who can direct its affairs.

A company mentioned in an executive’s listing reasons is not, for that reason alone, separately listed. Its own status, any ownership or control by the listed person, and the benefit that person might receive from the transaction, remain separate questions. The executive’s role may supply relevant evidence, but the job title alone does not resolve them.⁴

An earlier agreement provides no general exemption from the restrictions on later performance.

These restrictions operate alongside the separate controls on goods, services and financial transactions in Council Regulation (EU) No 833/2014. A transaction with an unlisted counterparty may still be prohibited under those rules, which cover goods with both civilian and military uses, and certain services supplied to Russian businesses. Equally, a supply permitted under Regulation 833/2014 may breach Regulation 269/2014 because of the person receiving or benefiting from it. Regulations 2281 and 2292 do not amend those sectoral controls or introduce a new vessel list. A transaction may consequently remain prohibited even where either the proposed activity or the counterparty, considered on its own, appears to fall outside the restrictions.

Consequences for commercial relationships

The effects of a listing may become apparent at different stages of an existing commercial relationship. A delivery may have been completed before the restrictions took effect, while the corresponding payment remains outstanding; in another case, a payment may already have been made for goods that have yet to be released. Those differences can affect the position of the parties and the availability of an authorisation. The resulting interruption may also have consequences for the timing of later deliveries, the cost of storage and the continued provision of services. The outcome of any related contractual claim will depend on the terms of the contract, the governing law and the applicable sanctions rules.

The commercial effects can also extend beyond a direct relationship with a listed counterparty. A transaction may involve an intermediary, a financing party or an intended recipient whose connection with a listed person affects whether the funds or goods can be transferred.

The contracting company’s own absence from the list may therefore leave an important part of the legal position unresolved. Where the relevant ownership or control is uncertain, the parties may face delays while the basis for continued performance remains in question. That uncertainty does not itself establish that assets must be frozen, although it does not suspend a freezing obligation where the legal conditions are already met.

The timing of the new entries adds a further consideration for relationships that were permissible when they began. A conclusion reached before 12 October may no longer reflect the parties’ position after the listings took effect. Similarly, the consolidated text of Regulation 269/2014, dated 28 September 2026, does not contain these additions. A change in the recipient, the assets involved or the nature of a later service may produce a different result again, even where the underlying contract remains the same.⁵

How can we help?

Our International Trade & Foreign Investment Practice can help businesses identify their exposure to the new listings, examine ownership and control, and determine how the rules affect existing contracts. We advise on available exemptions, prepare applications for authorisations, and help establish procedures for handling frozen assets and reviewing counterparties.

^{1 Council decisions (CFSP) 2026/2279, Recital (4) and annex, and 2026/2291, Recital (5) and annex, both of 12 October 2026, amending Decision 2014/145/ CFSP; Council implementing regulations (EU) 2026/2281 and 2026/2292, both of 12 October 2026, arts 1-2 and annexes, implementing Council Regulation (EU) No 269/2014, as amended, arts 2 and 17 and Annex I.}

^{2 Decision 2279, supra N 1, recitals (2)-(5) and annex; Decision 2291, supra N 1, recitals (3)-(5) and annex; Council of the European Union, “EU agrees largest-ever package of listings targeting almost 1600 individuals and entities in Russia’s military-industrial complex” (12 October 2026).}

^{3 Council of the European Union, “How the EU adopts and reviews sanctions”, section “Adoption of a Council decision”; Euronews, “EU agrees to sanction over 1,600 people and entities linked to Russia’s war” (7 October 2026); ERR, “Russian supplier dropped from EU sanctions package at Estonia’s request” (8 October 2026), including confirmation from Estonia’s representation in Brussels.}

^{4 Regulation 269/2014, supra N 1, arts 1(d)-(g) and 2; Regulations 2281 and 2292, supra N 1, arts 1-2; European Commission, “Asset freeze and prohibition to make funds and economic resources available” (Frequently Asked Questions, version 25 September 2026), questions 1-4.}

^{5 Regulation 269/2014, supra N 1, Art 2; Council Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine [2014] OJ L229/1, as amended, arts 2 and 5n; Regulations 2281 and 2292, supra N 1, Art 1 and annexes. European Commission, Asset Freeze FAQs, supra n 4, questions 1-4. The consolidated text of Regulation 269/2014 dated 28 September 2026 predates the amendments of 12 October 2026.}

Pensions Weekly Update: 13 October 2026

Tue, 13 Oct 2026 11:34:40 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

The pensions industry is expecting to be busy over the next few months.
- The chancellor’s first budget will take place on Wednesday 28 October.
- This is closely followed by the deadline for responding to the consultation on draft regulations relating to the conversion of guaranteed minimum pensions (GMPs) on 29 October 2026. The draft regulations build on the Pension Schemes (Conversion of Guaranteed Minimum Pensions) Act 2022, which is not yet in force, but once in force, this act, along with the regulations, will set out how survivors’ benefits should be treated and from whom trustees must seek consent to a GMP conversion exercise.
- 31 October 2026 is a big day for schemes with 100 or more relevant members. This is the dashboards connection deadline. Seek advice if your scheme has concerns about complying with dashboards duties.
- While the Pension Schemes Act 2026 contains what is colloquially known as the “Virgin Media remedy”, further relevant detail may be contained in the court’s decision in Verity Trustees v. Wood, which is still awaited.
- We are also waiting for a consultation on guidance around trustees’ fiduciary duties, which has been developed by a technical working party with the Department for Work and Pensions (DWP).
In this blog post, our colleagues look at the consultation on modernising corporate reporting, which proposes wide-ranging changes to the UK’s corporate reporting framework, including the provisions that currently underpin environmental, social and governance (ESG) reporting for corporates. The blog considers the potential impact for investors (such as pension funds).

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

The Federal Trade Commission (FTC) cracks down on discriminatory pricing

Fri, 09 Oct 2026 15:04:50 +00:00

After decades of limited Robinson-Patman Act enforcement, the FTC announced on October 8, 2026, that it had secured relief in its second Robinson-Patman Act matter in just one week.

The Robinson-Patman Act generally prohibits sellers from charging competing purchasers different prices for the same product, or from providing discriminatory discounts, rebates or promotional allowances. Price differences may be lawful, however, if they reflect actual differences in the seller’s costs of serving customers, or are offered in good faith to meet a competitor’s price or discount.

Violations of the Robinson-Patman Act can result in FTC administrative orders requiring companies to cease discriminatory pricing or promotional practices, private lawsuits seeking treble damages, and, in certain circumstances, criminal penalties, including fines and imprisonment.

The FTC recently investigated Gildan Activewear SRL, a leading T-shirt manufacturer, and S&S Holdings LLC, a major wholesale T-shirt distributor, for potential Robinson-Patman Act violations. According to the FTC, a partnership agreement between the companies prevented Gildan from offering competing distributors the same pricing and discounts available to S&S. Following the FTC’s investigation, Gildan and S&S amended the agreement by removing provisions that limited those pricing and discount opportunities exclusively to S&S. The revised agreement permits Gildan to offer comparable pricing and discounts to other North American wholesale distributors. In light of those changes, the FTC closed its investigation.

This action follows another significant Robinson-Patman Act enforcement matter announced by the FTC on October 2, 2026. In that case, Southern Glazer’s Wine and Spirits, the nation’s largest wine and spirits distributor, agreed to end practices that allegedly denied small, independent retailers access to discounts and rebates available to larger competitors.

Taken together, these matters signal renewed FTC scrutiny of pricing and discounting practices that may disadvantage smaller businesses and reflect the agency’s increased commitment to enforcing the Robinson-Patman Act.

Why this matters

These recent FTC actions demonstrate that Robinson-Patman Act compliance is once again a regulatory priority. Manufacturers, distributors and other businesses that offer different prices, discounts, rebates, promotional allowances or other incentives to competing customers should expect increased scrutiny, particularly where smaller businesses may be placed at a competitive disadvantage.

Many companies have not closely evaluated their Robinson-Patman Act exposure in recent years because enforcement activity has been relatively dormant.

The FTC’s recent actions suggest that even longstanding pricing and distribution arrangements may warrant renewed review.

What companies should do

To reduce risk and prepare for heightened enforcement, companies should consider the following steps:

Audit pricing programs – Review customer classifications, volume discounts, rebates and other pricing arrangements to ensure that price differences are supported by documented and legitimate business justifications, such as cost savings, rather than preferential treatment
Document competitor-match pricing – When offering special pricing to meet a competitor’s lower price, require sales personnel to verify and document the competing offer and maintain records demonstrating a good-faith basis for the price match.
Standardize promotional programs – Establish clear written policies governing cooperative advertising funds, marketing allowances and similar promotional benefits so that competing customers understand what opportunities are available and how they may qualify.
Involve legal counsel early – Require legal review of custom pricing arrangements, exclusivity provisions, favored-customer clauses and agreements involving large or strategically important purchasers to identify potential Robinson-Patman Act risks before they become enforcement issues.

As the FTC continues to focus on practices that may disadvantage smaller competitors, proactive compliance efforts can help companies reduce enforcement risk while preserving effective pricing and distribution strategies.

Royal Decree-Laws 28/2026 and 29/2026, both dated 6 October, published in the Spanish Official State Gazette

Fri, 09 Oct 2026 10:41:49 +00:00

On 7 October 2026, Royal Decree-Laws 28/2026 and 29/2026, both dated 6 October, were published in the Spanish Official State Gazette (BOE), introducing new measures of particular significance in the areas of housing and lease agreements.

Royal Decree-Law 28/2026, which will enter into force on 15 November 2026, aims to strengthen the stability of residential tenancy agreements for primary residences. Royal Decree-Law 29/2026, which entered into force on 8 October, introduces additional measures designed to protect the social function of housing and expand the supply of affordable housing.

These insights prepared by our Real Estate team in Spain provide further details.

Royal Decree-Law 28/2026

Royal Decree-Law 29/2026

Pensions Weekly Update: 7 October 2026

Tue, 06 Oct 2026 14:49:31 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

The Pensions Dashboards Programme (PDP) has issued a new draft version of the reporting standards to cover daily reporting to the Money and Pensions Service (MaPS). The draft standards are intended to come into force on 1 March 2027. More background information can be found in the consultation outcome issued in June 2026.
The Office for National Statistics (ONS) has published its latest estimates for funded occupational pension schemes for the period October 2025 to March 2026. The estimates indicate that the market value of private sector defined benefit (DB) and hybrid pension schemes decreased by £46 billion (4%) from £1,137 billion to £1,091 billion during the period. The ONS says that this decrease was mainly caused by a decrease in the value of assets, and to a lesser extent a rise in the value of non-pension liabilities. The combined market value of private sector defined contribution (DC) and public sector DB and hybrid pension schemes increased by £50 billion (5%), from £1,001 billion to £1,051 billion during the period. The ONS says that the main reason for this increase was a rise in the value of direct investments for both scheme types, although the value of public sector pooled investment vehicles also increased over the same period.
On 29 September 2026, the UK prime minister announced that the state pension triple lock will be adjusted from April 2030, so that it rises by at least inflation or 2.5% each year, whichever is higher, “and by even more if that is required to maintain its value relative to earnings”. The government will legislate for this during the current Parliament. Adjusting the triple lock is estimated to reduce state pension spending by £15 billion a year by the end of the 2030s. The savings are expected to be used to fund a new national care service with no personal care charges, although the cost of bed and board will still be means tested.
Is £1 million enough? The Pensions Regulator (TPR) was granted several new powers by the Pension Schemes Act 2021, including the power to issue financial penalties of up to £1 million in certain circumstances. In this blog post, we ask whether £1 million is enough.
Watch out for our upcoming thought leadership campaign “Cost of Living - The Pension Dimension”. Inspired by the Pensions Commission's interim report, and by our conversations with clients and industry bodies, we will explore important questions about the affordability of pension saving and the adequacy of pension benefits.

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

CMA fines company and employees for obstructing dawn raid in warning to businesses and individuals

Tue, 06 Oct 2026 14:18:03 +00:00

The Competition and Markets Authority (CMA) has fined M&J Group and two employees after evidence was concealed during a dawn raid conducted as part of an ongoing bid-rigging investigation. The decision is significant because it appears to be the first time the CMA has imposed civil penalties on individuals for obstructing a competition investigation. It also serves as a reminder that businesses and employees may face substantial penalties for failing to cooperate with CMA investigations, irrespective of whether any underlying competition law infringement is ultimately established.

What happened?

The CMA has imposed fines totalling £50,000 on construction company M&J Group and two members of staff after evidence was concealed during a CMA inspection carried out pursuant to a court warrant. The case demonstrates the CMA’s willingness to pursue enforcement action against both businesses and individuals who obstruct investigations.

The CMA was conducting an inspection as part of its investigation into 12 construction companies suspected of bid-rigging in relation to public and private sector contracts, including projects funded through the Department for Education’s Condition Improvement Fund.

According to the CMA:

(i) M&J’s Estimating Director, Barry Pirrie, instructed the company’s Office Manager, Tracey Woods, to remove a work mobile phone and associated paperwork from the premises

(ii) Mr Pirrie falsely stated to CMA investigators that he did not possess a work mobile phone

(iii) Although the materials were returned later the same day, the CMA concluded that the concealment risked the loss of relevant evidence and had hindered the investigation

The CMA imposed the following penalties:

M&J Group – £25,000
Barry Pirrie – £20,000
Tracey Woods – £5,000

Importantly, the fines relate solely to failures to comply with investigatory requirements and do not constitute findings that competition law has been breached in the underlying bid-rigging investigation, which remains ongoing.

Why this matters

The decision is notable not because of the size of the fines, but because it demonstrates the CMA’s willingness to pursue procedural misconduct aggressively and to impose liability on individuals as well as companies. For many businesses, the most immediate competition law risk may arise not from the underlying investigation itself, but from failures in how employees respond to it.

First, the CMA appears increasingly willing to pursue individuals, as well as companies, for conduct that obstructs investigations. The penalties also reinforce that employees cannot assume responsibility rests solely with the company. Instructions to conceal information, remove devices or mislead investigators may expose individuals to separate regulatory consequences.

Second, procedural failings may result in penalties regardless of whether any substantive competition law infringement is ultimately established.

Third, the case comes against the backdrop of significantly strengthened CMA enforcement powers under the Digital Markets, Competition and Consumers Act 2024. Since January 2025, businesses that fail to comply with CMA investigatory requirements may face:

Fixed penalties of up to 1% of annual turnover
Daily penalties of up to 5% of daily turnover

Because the conduct in this case occurred before those powers took effect, the penalties were imposed under the previous framework. Similar conduct today could attract substantially larger sanctions. In larger organisations, turnover-based penalties may far exceed the levels imposed in the M&J case.

What can the CMA do during a dawn raid?

During a dawn raid, CMA investigators may be able to:

Enter premises under a warrant
Inspect and copy electronic records
Access mobile devices used for business purposes
Review emails and communications platforms
Require documents to be preserved
Ask employees factual questions relating to the investigation

Businesses should ensure employees understand that deleting documents (including emails, SMS and instant messages such as WhatsApp), concealing information, removing devices or misleading investigators may itself constitute a breach.

Public procurement implications

The underlying investigation concerns alleged bid-rigging in procurement markets, an area that has become a key CMA enforcement priority.

Businesses involved in public procurement should note that antitrust investigations can have consequences beyond regulatory fines, including exclusion risks, contract disputes, damages claims and reputational harm. These considerations make early legal advice particularly important where procurement-related concerns arise.

The construction sector has been the subject of repeated CMA investigations, including enforcement activity relating to demolition services, pre-cast concrete products and public procurement-related bid-rigging. More broadly, the CMA has identified protecting public expenditure and ensuring value for money in public procurement as a significant area of focus.

Where a competition law infringement is established, businesses may face:

Exclusion from public procurement proceduresContract termination risks
Damages claims by customers or contracting authorities
Increased scrutiny from public sector bodies

Businesses may also need to consider whether “self-cleaning” measures are required to preserve eligibility for future public contract opportunities.

Practical actions for businesses

Businesses should consider:

Reviewing and updating dawn raid response procedures
Providing regular competition law and investigation-response training to their employees
Ensuring employees understand document and data preservation obligations for electronic and hard-copy documents
Establishing clear escalation procedures so that legal counsel is contacted immediately upon any regulatory visit or inspection
Testing investigation response plans through mock dawn raids and compliance exercises. If potential cartel or bid-rigging conduct is identified internally, seeking legal advice promptly.

In appropriate circumstances, cooperation with the CMA, including through leniency mechanisms, may significantly reduce exposure.

Dawn raid checklist

If the CMA arrives:

Notify legal counsel immediately
Verify investigators’ authority and warrant
Do not destroy or alter documents
Do not remove devices or records
Designate a response team to accompany investigators
Engage senior IT team members to assist with data access and preservation
Maintain a record of information reviewed and copied

Key takeaway

While the underlying bid-rigging investigation remains ongoing, the CMA’s message is already clear: attempts to conceal, remove or withhold evidence during an investigation will be treated as a serious breach in their own right. Businesses should ensure that senior management and employees understand their obligations before regulators arrive at the door, not afterwards.

Following the fleet: UK ship designations and Sakhalin-2 licences announced on 1 October 2026

Tue, 06 Oct 2026 12:07:08 +00:00

Since Russia invaded Ukraine in February 2022, the UK has sanctioned nearly 600 of the tankers that facilitate the movement of Russian oil and gas throughout the world.

In May 2026, the UK targeted Russian liquefied natural gas (LNG), banning anyone subject to its jurisdiction from shipping, insuring, financing or brokering cargoes destined for other countries. With the package issued on 1 October 2026, the Foreign, Commonwealth and Development Office (FCDO) has carried that policy to the ships themselves. Eight further vessels are now listed, two of them for having provided the shadow fleet with services like refuelling or ice-breaking capabilities. The UK has nonetheless left its firms free to serve Sakhalin-2 deliveries to Japan and South Korea until 31 March 2028 (this is an effective recognition of the importance of Sakhalin-2 energy supplies to these two allied countries).

Background

In the same May amendment, the UK also changed how it treats the ships that it lists, a process that the legislation terms “specification”. The UK identifies each vessel by its International Maritime Organisation (IMO) number, a seven-digit number that remains with a merchant ship for life. Previously, the UK’s response to a listed ship was to close its ports and its ship register to it, and little more. Now, no UK-person may charter or operate any of these ships; provide it with a crew, technical, brokering or financial services; or even contract any service from any specified vessel. Breach of any of these prohibitions is a criminal offence. The UK did, however, provide a grace period to ease-along the transition. UK firms may continue to service supply contracts lasting longer than one year that were entered into before 17 June 2025 up until the start of 2027. A general trade licence of equal duration also covers short-term Sakhalin-2 and Yamal cargoes.¹

On 1 October, the FCDO updated the UK Sanctions List with 31 new entries, including 22 individuals (four of whom were non-Russians) for allegedly detaining and torturing Ukrainian civilians, deporting their children or spreading pro-Kremlin disinformation and one entity, the Singapore trading arm of the Russian gas producer Novatek (Novatek Gas and Power Asia Pte Ltd), which is known for selling cargoes of Yamal LNG and eight sea-going vessels.

These eight are described as either forming part of Russia’s shadow fleet of tankers, or of having provided the fleet with essential services like refuelling and ice breaking capabilities. The intended effect is that a fleet that no Western insurers or banks will interact with will have to depend on the few remaining ships that will.²

The ship listings

The key to this sanctions package lies in the eight vessels listed therein. No UK person may insure any of them (including indirectly, e.g. through reinsurance); no UK bank may provide funds for their voyages and no UK broker may even arrange their charters, regardless of where the vessels may be operating. Only operators who can demonstrate that any breach on their part was committed unknowingly, and that they were not simply disregarding warning signs or suspicious activity on the part of their counterparties, will escape liability. Rigorous due diligence, screening and documentation retention are, therefore, an ever more important part of compliance with the various sanctions regimes that apply on the world’s oceans. A defence may be claimed by a company that neither knew nor had reasonable cause to suspect that the UK had listed the ship, and its due diligence checks (ordinarily a search by IMO number) will typically suffice to establish this.

The FCDO initially listed the two vessels BEBEK-E and GALLE ENERGY as transporting Russian LNG to other countries, but neither of them appears capable of carrying LNG. The first is a small oil-products tanker built in 1979, that was listed by the EU in July for servicing sanctioned vessels; the second is a 23-metre tug registered in Sri Lanka. On 2 October, the FCDO removed both from the list and relisted them under new list identifiers, this time on the general ground of supporting the government of Russia. A search of the sanctions list by the original identifiers will therefore return two revocations, although both ships remain listed (In fact, tracking data indicate that BEBEK-E is broadcasting as MT BODY, flying the flag of Tanzania. Only the IMO numbers have remained constant).³

The licences

On 1 October, the Office of Trade Sanctions Implementation (OTSI) issued two general trade licences for shipments to Japan and South Korea. The UK government explains that these licences will help to ensure the energy security of two close allies. Between 1 January 2027 and 31 March 2028, UK firms will be able to ship, finance and broker LNG from the Sakhalin-2 project in Russia’s Far East to those two countries, provided that the contract for the supply was signed before 17 June 2025. Firms that intend to use these licences must notify OTSI within 30 days of starting the activity and keep records of it. It should be noted, however, that with these licences OTSI has lifted only the ban on shipping LNG and the related bans on financial and brokering services, as well as giving legal advice; no other prohibitions or restrictions are lifted. Thus, UK firms are still not allowed to service a Sakhalin-2 cargo carried by a listed ship or any shipment that involves Novatek’s sanctioned subsidiary in Singapore, or any other sanctioned party.⁴

The EU made the same exception back in July of 2026, for the same cargoes, the same two countries and with the same expiry date of 31 March 2028. However, the two regimes differ in other ways. For example, the EU does not restrict the date of the supply contract. It also exempts shipments to other countries of cargoes under long-term contracts signed before 24 February 2022, up to their 2025 volumes, for renewable periods of one year. By contrast, the UK will not grant such an exemption after 1 January 2027, so a firm operating under both regimes will have to abide by the more restrictive of the two. EU shipowners whose vessels are insured or financed directly or indirectly by UK entities, or by any which comply with the UK’s sanctions regime may find that a voyage permitted under EU law cannot be covered in the UK.⁵

Outlook

On 1 January 2027, UK firms will lose two protections: (i) the exemption for existing long-term contracts (i.e. those signed before 17 June 2025); and (ii) the licence of 20 May 2026 for short-term shipments of Sakhalin-2 and Yamal cargoes. After that date, they will be able to service shipments of Russian LNG only under the two new licences and will lose the ability to service Yamal cargoes (unless OTSI issues more licences). The UK government has stated that Russia is building up a new shadow fleet to carry its gas, so the FCDO is likely to add more carriers and the ships that service them, to its list. OTSI may also vary, revoke or suspend the licences at any time. Operators should therefore review their contracts against the January 2027 deadline now and ensure that their screening is based on IMO numbers and not on vessel names or flags.

How we can help

Our International Trade & Foreign Investment Practice Group advises shipowners, charterers, insurers, banks and traders on the sanctions imposed by the UK, EU, US and China. We screen vessels and counterparties, analyse their ownership and control, draft the notifications required by the new licences and review contracts to ensure compliance with the January 2027 deadline. If you would like to discuss how these measures affect your business, please contact any member of the team listed or your Squire Patton Boggs contact.

¹ Russia (Sanctions) (EU Exit) (Amendment) Regulations 2026, SI 2026/543, regs 7(4), 10, 13, 15, 17; Office of Trade Sanctions Implementation, ‘”General Trade Licence: Maritime Transportation of Liquefied Natural Gas” (19 May 2026) paras 3–5, 11–12.

² “Sanctions Notice, Russia, 01 October 2026”, Foreign, Commonwealth and Development Office (1 October 2026); “New UK sanctions target Kremlin war chest, propagandists and torturers” Foreign, Commonwealth and Development Office (press release, 1 October 2026).

³ “Sanctions Notice, Russia, 02 October 2026”, Foreign, Commonwealth and Development Office (2 October 2026).

⁴ “General Trade Licence: Maritime Transportation of Liquefied Natural Gas: Japan”, Office of Trade Sanctions Implementation (OTSI20261001/GTL01, 1 October 2026) paras 2, 4–8, 11–13.

⁵ Council Regulation (EU) 2026/1848 of 23 July 2026 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L, 2026/1848, 23.7.2026, art 1(10), (34), Annexes V–VI.

2026 Proxy Statement Metric Analysis (Including Industry Data on CLO/GC Compensation)

Fri, 02 Oct 2026 13:59:23 +00:00

This month, Squire Patton Boggs released its fourth annual DC 100 Report¹, and for the first year, our report includes average annual compensation for chief legal officers (CLOs) and general counsels (GCs) across 10 different industry groups.

For the last four years, we have published an annual DC 100 Report that covers the 100 largest public companies (based on annual revenue) headquartered in the DC metropolitan area. In line with prior years, the fourth DC 100 Report provides data from the recently completed 2026 proxy season (covering proxy statements filed from August 13, 2025 through July 24, 2026) and analyzes certain governance, compensation and disclosure matters, as well as insight into trends and disclosure priorities of the DC 100 over time.

Below are several of the key takeaways from the 2026 DC 100 Report (please refer to the complete report for additional details):

New data collected on CLO/GC compensation
– On average, aggregate (cash and equity) CLO/GC compensation was US$3.3M in 2026, with averages ranging from US$1.8M in the “Other” industry category (generally comprised of various services businesses) to US$5M in the aerospace and defense industry.
– CLO/GC compensation is approximately 27.5% of the median CEO compensation and 74.0% of the median CFO compensation.
Executive and director compensation reached new highs
– Average chief executive officer (CEO) compensation increased 21.7% to US$11.2M after declining in 2024, while average chief financial officer (CFO) compensation rose for the second consecutive year, reaching US$3.8M.
– On average, total director compensation is up 12.6% to US$274,112 annually. Research and development-focused industries continued to utilize a higher percentage of equity vs. cash for director compensation, while other industries are closer to a 50/50 split of cash and equity.
Board recruitment was active, but new director diversity was uneven
– 32 boards appointed 48 new independent directors, more than half of whom joined companies in the technology or aerospace and defense industries.
– Overall, one-third of the 48 new independent directors were diverse, but only two of the technology companies’ 18 appointees were diverse.
Annual proxy statement stockholder proposal trends continued
– The volume of stockholder proposals received and the number of companies receiving them continued to decline from 17 stockholder proposals in 2025 to 10 proposals in 2026, which was mainly comprised of governance proposals. All stockholder proposals failed.
– Approximately two in five boards had at least one director receive less than 90% stockholder support with the most common characteristic among these directors being that they held a board leadership position (often board chair or chair of the nominating and corporate governance committee).
– 86 DC 100 companies held say-on-pay votes this year, up from 83 in 2025, with all proposals passing with an average of 90.7% support.

In looking ahead to the 2027 proxy season, please reach out to our below colleagues if needed to assist on proxy disclosure or related governance matters.

1 https://www.squirepattonboggs.com/insights/publications/dc-area-public-company-local-trends-review-2026-proxy-season/

Top issues facing general counsel in the EMEA chemicals industry

Fri, 02 Oct 2026 13:10:03 +00:00

The role of general counsel in the chemicals sector is evolving rapidly. Against a backdrop of geopolitical uncertainty, regulatory reform, technological disruption and increasing stakeholder scrutiny, legal leaders are being asked to provide far more than legal advice. Today’s general counsel is expected to be a strategic adviser, risk manager, business partner and transformation leader.

Discussions among senior legal leaders across the EMEA chemicals industry highlighted five key issues that are shaping the general counsel agenda

Navigating a fragmented geopolitical environment

Geopolitical developments continue to drive significant business risk across the chemicals sector. Ongoing tensions involving Russia, China, the US and the Middle East are reshaping supply chains, trade relationships and investment decisions. Companies face increasing complexity as sanctions regimes become more extensive and, in some cases, conflicting.

For legal teams, this means managing compliance across multiple jurisdictions while helping businesses maintain resilience and continuity. Export controls, sanctions compliance, supply chain diversification and the management of cross-border operations are now central areas of focus. The growing use of trade measures and countermeasures, particularly around strategic materials and technologies, has elevated the importance of proactive legal oversight and scenario planning.

Responding to regulatory complexity while driving competitiveness

The EMEA chemicals industry continues to operate within one of the world’s most demanding regulatory environments. New obligations relating to packaging, waste management and sustainability, combined with ongoing developments to the registration, evaluation, authorisation and restriction of chemicals (REACH) and broader chemicals legislation, require significant legal and compliance resources.

At the same time, industry leaders are closely monitoring efforts by European policymakers to simplify regulation and improve competitiveness. The challenge for general counsel is to help organisations navigate current requirements while preparing for future reforms. Increasingly, legal teams are expected to balance compliance obligations with commercial growth objectives and ensure that regulation does not become an obstacle to innovation and competitiveness.

Leading the adoption of artificial intelligence

Artificial intelligence (AI) has moved beyond experimentation and is becoming a core business transformation initiative. Legal departments are already using AI to increase efficiency, expand capacity and improve risk identification. Roundtable participants reported tangible benefits including increased contract review volumes, improved management of export control issues and the consolidation of adjacent functions within legal teams.

As AI adoption accelerates, general counsel are increasingly taking ownership of governance, risk management and implementation strategies. Key considerations include technology selection, workforce impacts, data governance, supplier relationships and the development of meaningful performance metrics. Legal leaders are also playing a critical role in helping boards understand both the opportunities and risks associated with AI-driven transformation.

Managing climate litigation and reputational risk

While environmental, social and governance (ESG) as a corporate theme has evolved, climate-related litigation remains a significant source of risk for chemical manufacturers. Non-governmental organisations (NGOs), activist investors and claimant groups are becoming increasingly sophisticated in their approach, while climate related claims continue to attract public attention and influence corporate reputation.

General counsel are therefore placing greater emphasis on litigation preparedness, governance and communications. Particular attention is being paid to product claims, sustainability messaging and reputational risk management. Companies are increasingly reviewing business decisions through the lens of potential climate-related legal exposure and stakeholder scrutiny, recognising that reputational consequences may be as significant as legal ones.

The emergence of the “GC Plus” role

Perhaps the most significant trend is the continued expansion of the general counsel role itself. Legal leaders are spending more time on strategic business issues and less time on traditional legal work. Boards increasingly expect general counsel to anticipate risks, provide practical solutions and contribute directly to corporate strategy.

This shift requires a broader skillset encompassing leadership, commercial judgment, stakeholder management and organisational influence. General counsel are becoming more deeply involved in areas such as sustainability, cybersecurity, AI governance and enterprise risk management. Rather than acting solely as legal advisers, they are expected to help shape business outcomes and create measurable value for the organisation.

Looking ahead

For general counsel in the EMEA chemicals industry, the environment is becoming more complex, interconnected and fast-moving. Success increasingly depends on the ability to balance risk management with business growth, navigate regulatory and geopolitical uncertainty, embrace technological change and provide strategic leadership at the highest levels of the organisation. The legal function is no longer viewed simply as a cost centre or compliance function. It is becoming a critical driver of resilience, competitiveness and transformation across the chemicals sector.

California’s new COMPETE Act: Broadening the state’s antitrust arsenal

Fri, 02 Oct 2026 12:24:48 +00:00

On September 30, 2026, California Governor Gavin Newsom signed Assembly Bill 1776, the Competition and Opportunity in Markets for a Prosperous, Equitable and Transparent Economy (COMPETE) Act, expanding California antitrust law to reach anticompetitive conduct by a single firm. The new law takes effect January 1, 2027.

Up until now, California’s antitrust laws have focused principally on unlawful conduct by multiple firms, leaving monopolization claims to be addressed at the federal level, largely under Section 2 of the Sherman Act. The COMPETE Act changes that framework by adding a new Section 16731 to the California Business and Professions Code, which regulates unilateral conduct.

What is the COMPETE Act?

Scope of conduct covered

The new provision makes it unlawful to monopolize or monopsonize, attempt to monopolize or monopsonize, maintain a monopoly or monopsony, or combine or conspire to monopolize or monopsonize any part of trade or commerce. A government plaintiff must establish that the defendant possesses “substantial market power,” which may be demonstrated through direct or indirect evidence.

Importantly, the final bill narrowed the scope of conduct outlawed. Earlier versions would also have created a broader prohibition on unilateral restraints of trade and included provisions expressly departing from certain federal precedents involving practices such as refusals to deal and predatory pricing. Those provisions were removed from the final legislation.

Who can bring an enforcement action

The COMPETE Act only authorizes the California attorney general or a district attorney to bring an enforcement action. It does not create a private right of action under the new monopolization provision. The Act also generally prevents private plaintiffs from using an alleged violation of the new provision as the basis for a claim under California’s Unfair Competition Law.

Rule of reason framework applies

Although the statutory language resembles Section 2 of the Sherman Act, the COMPETE Act expressly provides that federal antitrust decisions are “at most instructive” and are not controlling in interpreting California law. The act also directs courts to construe California antitrust law liberally to promote competition and effective deterrence. At the same time, as with the Sherman Act, the legislature recognizes that businesses may lawfully acquire and maintain market or monopoly power through superior products, services or business acumen.

Courts evaluating claims under the new provision are directed to apply the analytical framework identified by the California Supreme Court in In re Cipro Cases I & II, which employs a structured rule-of-reason analysis. How courts adapt that framework to unilateral conduct will be an important issue as the law develops.

What does this mean for businesses?

The COMPETE Act represents a significant expansion of California’s antitrust enforcement arsenal.

California prosecutors now have an independent state-law mechanism for challenging unilateral conduct by firms with substantial market power, including conduct involving exclusive dealing or distribution, access or interoperability restrictions, pricing practices, and other strategies alleged to maintain or extend market power.

The law may also develop differently from federal Section 2 doctrine. Because federal precedent is expressly nonbinding, and California courts are instructed to construe the state’s antitrust laws liberally, conduct that has traditionally been assessed under established federal monopolization standards could face a different analysis under California law.

The Act’s express coverage of monopsonization is also significant, particularly for businesses with substantial purchasing power. The statute specifically recognizes competition for workers as part of the Cartwright Act’s protection of competition, potentially providing California prosecutors another avenue to investigate conduct affecting labor markets and other buyer-side markets.

Actions businesses can take to reduce risk

Businesses with significant positions in California markets should consider reviewing exclusivity provisions, distribution practices, access and interoperability restrictions, pricing strategies, and practices affecting suppliers, customers, competitors or workers before the law takes effect on January 1, 2027. The absence of a private right of action may limit immediate litigation exposure, but the COMPETE Act nevertheless gives California prosecutors a significant new enforcement tool and creates the potential for California monopolization law to develop independently of federal precedent.

Who decides? Australia’s new guidance on automated decision-making raises the bar

Fri, 02 Oct 2026 09:00:00 +00:00

The Office of the Australian Information Commissioner (OAIC) just scraped in and published, on the last day of September, a fact sheet on Australian Privacy Principles (APP) entities’ new obligations under APP 1.7-1.9 (Fact Sheet), along with an accompanying flow chart (Flow Chart). It has also updated the APP Guidelines to incorporate, in detail, new guidance on updated APP 1 (Guidelines).

Top tip – Both sets of information are important reading, but the guidelines are more useful for detailed legal analysis, with the Fact Sheet and Flow Chart serve as a “practical” way for privacy experts to explain the new obligations to their non-expert colleagues. [SPB1.1]

What are the new obligations?

For those who need a refresher (understandable, given the pace of privacy-related change), APP 1.7 will require the following from 10 December 2026.

Where:

An APP entity has arranged for a computer program to make, or do a thing that is substantially and directly related to making a decision
The decision could reasonably be expected to significantly affect the rights or interests of an individual
Personal information about the individual is used in the operation of the computer program to make the decision or do the thing that is substantially and directly related to making the decision

Then the APP entity must include the following information in their privacy policy, as mandated by APP 1.8:

The kinds of personal information used in the operation of such computer programs
The kinds of such decisions made solely by the operation of such computer programs
The kinds of such decisions for which a thing, that is substantially and directly related to making the decision, is done by the operation of such computer programs.

APP 1.9 provides examples of decisions that may be seen as significantly affecting an individual’s rights or interests.

What is a computer program?

Top tip – It’s more than AI. The OAIC has taken a deliberately broad view of “computer program”, noting that it would apply to:
• Pre-programmed rule-based processes
• AI and machine learning processes
• Software, apps or word-processing tools
• Generative AI used to generate text, images, videos, code or synthesis, including chatbots

While broad, this by itself will not extend the application of APP 1. Specifically, falling within the definition of “computer program” does not, by itself, trigger the transparency obligations set out above. The computer program must either make a decision or do something which is “substantially and directly” related to making that decision before these obligations apply. In addition, the decision must meet a stated threshold in terms of its effect: see When does a decision “significantly affect” rights or interests?

Even so, the OAIC's broad interpretation suggests that organisations will need to assess technologies that would not, in our view, obviously fall within the natural meaning of “computer programs”, like Excel spreadsheets with basic formula capabilities. The privacy commissioner recognises that this will be no small task for organisations and will likely require additional or re-directed resource.

When does a computer program do a thing that is substantially and directly related to a decision?

Borrowing from the Explanatory Memorandum (EM) to the to the Privacy and Other Legislation Amendment Bill (Cth), the OAIC suggests that to meet this threshold, a “thing” made or done by a computer program must be both a “key factor” in the decision-making (substantial) and have a “direct connection” with the decision-making (directly related). The EM anticipates that this could be through a computer program recommending or guiding a human decision-maker to a specific outcome.

In the Fact Sheet, the OAIC goes one step further and identifies a computer program as being substantially and directly related to a decision if it:

Advises of an appropriate outcome of a process
Determines the outcome of a process
In any other way influences the outcome of a process (emphasis added)

Equally, the Flow Chart includes as one of its recommended steps assessing whether a computer program is being used to “inform”, or in a way which is “related to”, a decision.

Top tip – This threshold is low. In particular, the Fact Sheet does not set any limit on the level of “influence” required before a computer program will be seen as influencing the outcome of a process. Example 1 in the Fact Sheet is not particularly helpful, as it provides a (very clear) scenario of medical staff using a spreadsheet, which ranks individuals by reference to their medical needs, to decide which individuals to contact and schedule medical appointments for.

When challenged on the span of these terms, the privacy commissioner reiterated the importance of APP entities “going back” to the language of APP 1.7 (specifically, “substantially” and “directly”) to understand their legal obligations. The commissioner noted that not everything that informs a decision would, necessarily, be substantially and directly related to that decision. The commissioner’s response suggests that the guidance issued by the OAIC is deliberately broader than what is required by APP 1.7, resulting in additional work for the regulated community as they sift through all decisions made using computer programs.

Practical example – In the context of candidate screening for a lawyer role – which meets the threshold of a sufficiently “significant” decision according to Example 5 – would use of AI to remove any candidate who does not have a law degree “influence” the outcome of the decision-making process? This is a common use of automated technologies and would not produce a result that is different from that of a human decision-maker (who would have programmed the AI to exclude individuals without a law degree). But it is also true that the use of AI influenced the outcome by actively preventing candidates without a law degree from reaching the next stage.

How much human involvement is enough to avoid the application of APP 1.7?

The Fact Sheet is clear that a decision may be within scope of the transparency obligation even where a computer program output does not replace the entire decision-making process or is subject to human review. For example, in Example 3 in the Fact Sheet, a human is able to override the output of a generative AI program (known as “GPTea” and used to produce profiles of staff for performance and remuneration review), but the output is still always relied on by humans when documenting the reasoning behind a decision, bringing it within scope of APP 1.7.

When considering if an advisory output is within scope of this limb of the APP 1.7-1.9 transparency obligation, the Guidelines recommend that APP entities consider factors including:

Which part of the decision-making process the computer program was used for
The sources of information used to generate the output
The parameters provided to the computer program to generate a decision
How the computer program output ultimately influenced the human decision-maker’s judgement

The Guidelines also provide a non-exhaustive list of items to enable an APP entity to assess whether a computer program substantially facilitates and is directly connected to a human decision-maker’s decision.

Top tip – To avoid the application of APP 1.7, the OAIC suggests that humans actively challenge automation bias – i.e. they interrogate the output of computer programs, including by conducting further review of any key performance indicators (KPIs) behind the decision, setting GPTea parameters more narrowly, using additional evidence before making a decision and documenting when they have diverged from GPTea’s recommendations. While these are useful tips, we expect that in practice organisations will find it difficult to distinguish between the varying degrees of human input required by the OAIC in its examples (many of which could be argued either way) and may choose to over-disclose to comply with APP 1.7.

When does a decision “significantly affect” rights or interests?

According to the OAIC, this will take place when the following conditions are met:

Significantly means the impact of the decision or thing must be more than trivial and must have the potential to considerably influence the circumstances or outcomes for the individual concerned
A right is a moral or legal entitlement to have or be able to do something
An interest refers to a concern, benefit, stake or claim relating to something

While it is not referenced in the language of APP 1.9, vulnerability is also relevant, to the extent that a decision may have a greater impact on persons experiencing vulnerability, as opposed to the general population.

The OAIC gives examples of decisions that might fall within the scope of APP 1.9 in Appendix 1 to the Fact Sheet, ranging from those which clearly meet the threshold (like computer programs used to prioritise the provision of health or disability services) to those where the significance of the decision will depend on its context (like programmatic advertising relating to the decision to sell significant goods or services, or differential and/or personalised pricing practices used by online retailers to sell significant goods).

Top tip – The Issues Paper originally published by the OAIC raised the possibility of an ecommerce company selling a book at different price points, depending on the purchaser’s post code, as falling within APP 1.9. Thankfully, the newly-released materials from the OAIC do not go so far – but they are still very broad. In particular, Example 4 in the Fact Sheet makes clear that a decision caught by APP 1.9 would include access to “essential goods”, such as a shopping cart which includes “baby formula, gluten free foods, pharmacy items and over-the-counter medications”, and would also cover decisions relating to programmatic advertising or differential pricing for goods (for example, different pricing for baby car seats depending on a purchaser’s post code).

Practical example – APP entities, especially those who sell groceries or other essential goods (which could include baby products), will need to consider if automated decisions around either the sale or the pricing of such goods need to be disclosed in their privacy policy. Example 4 in the Fact Sheet suggests that even if the pricing differences between individual goods are minimal (the figure given is AUS$0.89), when taken cumulatively, the overall pricing difference may be “significant” as “even a small difference can compound over time to be a significant quantum…”

The Fact Sheet gives the example of gluten-free food as a product that may have a “significant” effect on an individual’s rights and interests. It will be difficult for APP entities to distinguish between goods which are “essential” for individuals with special dietary needs and those which may be purchased based on personal preference (for example, non-dairy milk). Instead of becoming mired in the detail of individual goods or services, we recommend that clients take a wholistic view of the decisions made by computer programs, and their overall impact on individuals.

In addition, while vulnerability may be a relevant factor, many APP entities are unlikely to have this level of visibility. For example, the Guidelines recognise that a decision to suspend a customer’s account with a rideshare company “may have a relatively minor impact on some customers [but] the decision could significantly affect” a vulnerable customer’s rights and interests. In practice, though, a rideshare company will not be able to distinguish between the effect of this computer program on their customer base, and so will need to make the relevant APP 1 disclosures in respect of all decisions made which could affect vulnerable customers, if they intend to keep using the technology.

What does it mean to “arrange for” a decision?

Notably, entities that procure, configure, authorise, integrate or rely on a third-party computer program may still be in scope of the APP 1.7-1.9 transparency obligation. The OAIC is clear that an APP entity has “arranged for” a computer program’s activities even if it does not operate the program itself but is still responsible for deciding to use it. This includes Example 2 in the Fact Sheet, where an APP entity procures off-the-shelf software to generate recommendations for it.

Top tip – APP entities “responsible” for the use of computer programs still need engagement from their third-party suppliers. Specifically, the Guidelines require APP entities to understand how a computer program is being used in a third-party product or service to make or assist decisions, as well as what types of decisions are being made, and to ensure that responsibility for ultimate decision-making is made clear in their contracts.

Practical example – Along with the anticipated introduction of “controllers” and “processors” under the Privacy Act, changes to APP 1.7-1.9 give APP entities a basis on which to request changes to their supplier contracts and more information about the way in which their computer programs work. However, APP entities will be dependent on suppliers offering “clear and high-level” information about how their software can be used to make decisions, in order to meet their own transparency obligations under APP 1.8. Particularly where a supplier is based outside of Australia, the supplier may not be comfortable offering this level of information to what is ultimately a small customer base. We recommend requesting such information in a considered and strategic way, to increase the likelihood of obtaining something useful.

How much information should APP entities include in their privacy policy?

The Fact Sheet gives, in Examples 6 and 7, template disclosures which are designed to comply with APP 1.8. The OAIC is clear that commercial-in-confidence information does not need to be disclosed – this is also stated in the EM and, given the high-level nature of most privacy policies, is unlikely to be a concern for many APP entities. However, for those who are relying on computer programs developed in-house, the question is more complex. Social media companies may use tools to automatically moderate user content. While Example 6 suggests that these companies would not need to disclose how they weight different data points to flag content which breaches their terms of service, they may still wish to avoid disclosing the personal information on which such tools were trained, in order to avoid individuals finding ways to contravene such tools. APP 1.8 expressly requires the disclosure of “the kinds of personal information used in the operation of computer programs”, so it is not clear that they can avoid doing so.

As always, the Guidelines emphasise the importance of “striking an appropriate balance between information which is articulated clearly and in plain language, but also appropriately tailored to be meaningful…while avoiding overwhelming levels of detail.” Example 7 shows how difficult this is in practice. References to a government insurance agency using personal information (like education history and local information) to “support decision-making, administrative action [and] workflow automation” is unlikely to provide the average Australian with a meaningful, privacyforward understanding about how their personal information is used in the context of granting support payments and training programs.

What should APP entities be doing now?

Map computer programs, but also the decisions made using them. While the term “computer program” is broad, the application of APP 1.7-1.9 is still caveated, so understanding both the computer programs which are used to support decisions, but also how they are used (and the kinds of decisions made) is critical.
Record decisions made and assess whether they meet the threshold in APP 1.8. This will depend on various factors, including the personal information used, the way in which the information interacts with the computer program, how output from the computer program is used and whether and how a human is involved in the process. If your intention is to avoid disclosure under APP 1.7-1.9, consider (and document!) how humans can meaningfully challenge the decision, including through avoiding reliance on output from computer programs.
Consider third-party contracts. If your organisation is caught by APP 1.7-1.9, now is the time to request information from your third-party providers that will allow you to meet your obligations under APP 1.8. Use the right tactics to compel provision of this information and consider providing suppliers with a sample disclosure for them to review and revise.
Update privacy policy. The challenge for many organisations will be to strike a balance between disclosures that are overly technical, but which are specific enough to be meaningful to the average Australian. For multinational organisations, disclosures made under Articles 12-14 of GDPR, or “clear and conspicuous” notice issued under US state law, could be a good starting point.
Prepare for consequences. The OAIC has identified a potential uptick in privacy complaints arising from this change to the privacy law. Even though APP 1.7-1.9 does not grant individuals a right to object to automated decision-making, it is likely that many will use it as a basis to seek more information about a decision or, at worst, challenge a decision which is not made in their favour. Be wary of relying on automated decision-making in assessing whether and how to respond to an individual’s privacy complaint, as that is likely to fall within APPs 1.7-1.9 and perpetuate further disclosures in your privacy policy.

UK Labour & Employment Quarterly Board Briefing – Looking to Q4 2026 and beyond

Thu, 01 Oct 2026 15:51:48 +00:00

The Employment Rights Act (ERA) 2025 will make fundamental changes to the employment law landscape in the UK and will impact all employers.

The extent of the impact will depend on several factors, including the size and composition of your workforce, the sector in which you operate, levels of staff turnover, the processes and procedures you already have in place, and how generous your current terms and conditions of employment are.

In this latest Quarterly UK Labour & Employment Board Briefing, we set out brief details of the key ERA changes that we consider will be of strategic interest to the board and will be coming into force in October 2026, including the practical steps that employers should be taking now to prepare. We also include some further notes on the larger changes that are on the horizon for 2027 and beyond.

In this quarter’s Spotlight, we look beyond the detail of the legislation to examine what the ERA may mean on a more strategic level, both within the boardroom and across the organisation.

Presumed denial – OFAC’s new policy for Iran-related licenses

Thu, 01 Oct 2026 14:01:25 +00:00

On September 10, 2026, the Office of Foreign Assets Control (OFAC) issued a new Statement of Licensing Policy (the “Policy”), as part of “Operation Economic Outcast,” which establishes a presumption of denial for license applications requesting authority for activities prohibited under Iranian sanctions.

Although OFAC has long refused to grant licenses for most business activities involving Iran, the Policy has far broader implications, including for noncommercial transactions, enforcement of court judgments and arbitration awards, as well as the renewal of existing OFAC licenses.

OFAC implemented the Policy immediately, denying the vast majority of pending applications for Iran-related licenses. The Department of the Treasury has stated the Policy will remain in place until Iran changes its conduct, including obstructing the Strait of Hormuz, attacking US personnel and partners in the Gulf and pursuing nuclear and conventional weapons.

Narrow exceptions

There are only two exceptions to the Policy of presumed denial. The first is for licenses “required by law.” This is a narrow exception intended to address the legal limits of OFAC’s authority. It preserves the agency's ability to honor licensing obligations established by statute or treaty, such as Section 906 of the Trade Sanctions Reform and Export Enhancement Act of 2000, which requires that certain exports of agricultural commodities, medicine and medical devices proceed under one-year specific licenses.

The second exception is for “exceptional and urgent circumstances, such as risk to life, limb, or environmental safety.” Applicants must submit a written attestation demonstrating those circumstances, after which OFAC will review such applications on a case-by-case basis in consultation with the Department of State. The emergency exception is likely to be interpreted narrowly. Indeed, OFAC suspended three safety-oriented general licenses two days before issuing the Policy. Accordingly, applicants should not expect OFAC to construe “risk to life, limb, or environmental safety” to encompass commercial disruption, contractual default, or financial loss.

Implications for applicants

The new Policy has the greatest impact on license applications that OFAC routinely approved in the past. For example, OFAC is denying applications for licenses to: receive payments owed under contracts with non-Iranian persons blocked under Iran-related authorities; receive payments to satisfy judgments and settlements; enforce arbitration awards; wind-down dealings with blocked persons beyond the terms of general licenses; and renew or amend existing specific licenses. Applicants in these categories should assume denial, without regard to how comparable requests were treated before September 10, 2026.

Holders of specific licenses approaching expiration should assess the contractual and compliance consequences of non-renewal. Conditions precedent, escrow provisions and settlement terms drafted on the assumption that a specific license can be obtained warrant review, together with the termination and force majeure provisions that a failure to obtain one may trigger.

Parties contemplating new applications should first confirm whether a general license remains in effect that covers the conduct. Where a statute or treaty compels licensing, or where there is a safety-related emergency, the application must detail how these factors should overcome OFAC’s presumption of denial.

If you have any questions about the Policy or its impact, please contact a member of the International Trade & Foreign Investment team.

Sanctions brief

Thu, 01 Oct 2026 09:00:00 +00:00

Our Commodities & Shipping Practice highlights the following recent developments regarding US economic sanctions:

Iran

New Licensing Policy – The Office of Foreign Assets Control (OFAC) announced a significant new licensing policy of “presumed denial” for all Iran-related license applications. We note the following:
- Narrow Exceptions – The policy has an exception for “exceptional and urgent circumstances, such as risk to life, limb, or environmental safety.” This likely would apply to licenses authorizing transactions necessary for the safety and maintenance of vessels at sea. There is a second exception for licenses required by law, but this is a very narrow category, applicable mostly to transactions involving agricultural commodities and medicine/medical devices.
- Denials – OFAC recently has denied a high volume of pending applications under the new policy, including applications that used to be granted routinely. Licenses that are currently in effect have not been revoked en masse but, in most cases, renewal licenses will not be granted.
- Disputes – The new licensing policy creates major obstacles for the resolution of disputes involving a party blocked under Iranian sanctions (e.g., licenses to collect debts and enforce arbitration awards against blocked parties).
Banking – OFAC designated a Turkish bank and its subsidiaries to the Specially Designated Nationals and Blocked Persons List (SDN List), finding that it provided the Iranian regime with a financial lifeline, including correspondent banking access to move funds internationally. We expect to see an increase in OFAC’s targeting of smaller financial institutions.
Strait of Hormuz – OFAC designated BitBank, an Iranian digital assets exchange used by Hormuz Safe Marine Services Authority to transfer payments it received to Iran.

Russia

Graham Act – President Donald J. Trump signed into law the Lindsey O. Graham Sanctioning Russia and Iran Act of 2026 (the “Act”), which imposes mandatory sanctions on non-US persons who engage in certain categories of transactions related to Russia. The president, through OFAC, must delegate parties to the SDN List by 18 October 2026, and every 180 days thereafter there will be a review to identify additional eligible targets. There are numerous categories of activities that are sanctionable under the Act, but the following are particularly relevant to commodities and shipping:
- Use of a vessel by a Russian person – A vessel and its owners, operators, managers, captain and officers can be blocked if the vessel is “used by” a “Russian person” (regardless of their sanctions status) to carry Russian or non-Russian origin “crude oil, uranium, natural gas, liquified natural gas, petroleum, petroleum products, coal, coal products, arms” (Targeted Commodities) or other goods for the purpose of circumventing US and other sanctions (Section 102(b)(3) and (4)).
- Non-standard maritime behavior – Vessel owners, operators and managers can be blocked if, while carrying Targeted Commodities for Russian persons, they “knowingly”: (i) exhibit or engage in unsafe or nonstandard maritime behavior; (ii) lack adequate maritime insurance; or (iii) evade compliance with crude oil or petroleum price caps (Section 102(b)(3)(A)-(C)).
- Carrying Russian commodities – A vessel can be blocked if it transports Russian-origin crude oil, uranium, natural gas, liquefied natural gas, petroleum, petroleum products, petrochemical products, coal or coal products (Russian Commodities). No “Russian person” is required to be involved directly in such carriage (Section 102(b)(5) (A)).
- Shipt-to-ship (STS) transfers of Russian-origin commodities – A vessel can be blocked if it engages in a STS transfer involving Russian Commodities with a blocked vessel (Section 102(b)(5)(B)).
- Vessel transfers to Russian persons – Any non-US person can be blocked if they transfer a vessel to the Russian Federation or provide a vessel for use by a Russian person if that vessel is designed to carry Targeted Commodities. (Section 102(b)(4)(D)).
- Providing vessel services – Any non-US person can be blocked if they provide STS operations or any other services to a vessel that transports Russian Commodities (Section 102(b)(5)(C)).
- Ports services – Non-US port owners and operators can be blocked if they allow any vessel blocked under US sanctions against Russia to receive port services (Section 102(b)(6)).
- Facilitation of energy production – Non-US persons can be blocked if they supply, transfer, market or otherwise provide goods, services, technology or other support that facilitates the maintenance or expansion of the production of Russian Commodities (Section 108(b)).

Cuba

Metals and mining – The US Department of State designated several companies to the SDN List pursuant to Executive Order (EO) 14404, for helping the government of Cuba exploit the country’s metals and mining sector. Blocked companies include NICAROTEC, a Cuban stateowned industrial and technical services company providing geological and mining support for the Cuban nickel sector, and CEXNI, a foreign-trade and logistics enterprise that imports and supplies specialized raw materials, machinery and equipment for Cuba’s nickel and cobalt industry.
Financial transactions – OFAC issued an alert that highlights the risk of secondary sanctions for: (i) parties that conduct or facilitate significant transactions for the benefit of any parties blocked under EO 14404; (ii) prohibitions on persons subject to US jurisdiction (i.e., US persons and non-US entities owned or controlled by US persons) engaging in financial transactions (directly or indirectly) with parties on the Cuba Restricted List; and (iii) a new prohibition on “U-Turn” transactions involving Cuba.

Venezuela

Amended general licenses (GLs) – OFAC amended several GLs that authorize certain transactions with the Venezuelan government. GL 46E and GL 48D add methanol to the list of petrochemical products covered by the licenses. GL51D and GL 54D add authorizations for dealings in Venezuelan coal and a state-owned mining company, Carbones del Zulia S.A. In addition, GL 52C adds new language authorizing contracts that are executed by blocked individuals, provided they are operating in their capacity as officers and representatives of Petróleos de Venezuela, S.A. (PDVSA).

Disputes

Penalty challenge – OFAC issued a pre-penalty notice of approximately US$4 million to a Greek shipping company for allegedly “causing” a US person to violate sanctions when they allowed their sub-charterers to carry Iranian minerals and metals on vessels subject to sale-leaseback agreements with a US investor. The company sued in US federal court to stop OFAC from continuing administrative enforcement proceedings, but was denied a preliminary injunction. Ultimately, the court will consider whether OFAC’s administrative process violates US constitutional rights to due process and a jury trial.
Insurance dispute – A US exporter sued London underwriters for denying a claim for cargo lost while being carried on a vessel that may be owned by an SDN. Underwriters won a motion to stay proceedings while the exporter applies to OFAC for a license. This will require OFAC to consider whether the vessel is owned by an SDN and whether a license is even required, given OFAC’s view that “the mere fact that a blocked person has caused [a] loss does not itself create a blocked interest in the [insurance] policy or any claim or payment under the policy.” FAQ 1200.

frESH Law Horizons: Key Developments in UK and EU Environment Safety and Health Law Procedure and Policy

Wed, 30 Sep 2026 17:00:00 +00:00

Our Environmental, Safety & Health team is pleased to share with you the latest edition of our newsletter, frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law and Procedure; providing bite-size updates on EU and UK law, procedure, and policy. Take a moment to reflect on the key developments from August to September 2026.

The updates covered in this edition include (among others):

Corporate Waste Responsibility Bill: Proposed new corporate responsibilities for waste management
Plastic Packaging Tax: Preparing for the mass balance approach
UK REACH: Technical consultation on the Alternative Transitional Registration Model
Modernising corporate reporting: The shift from ESG reporting to sustainability-related financial disclosure
Call for evidence published for the Digital Product Record Policy
Work underway by the European Commission on legal acts regarding PPWR’s minimum plastic recycled content targets
Extended producer responsibility beyond waste: AG Kokott’s opinion proposing partial annulment of the Urban Wastewater Treatment Directive a watershed?
The Digital Product Passport Registry is now available

Obligation on UK employers to inform workers of their right to join a trade union

Wed, 30 Sep 2026 09:45:52 +00:00

The new duty on employers to inform workers of their right to join a trade union will now come into force on 1 January 2027, and not 30 October 2026 as previously indicated in the government’s implementation timetable. We have updated our October 2026 checklist to reflect this latest development.

Key requirements

Form

The government will publish a standardised statement for employers to issue to workers, which they will only be able to amend to include any specific workplace information. As a result, no changes will need to be made to template contracts, Section 1 statements or other onboarding documentation. A draft of the statement has not yet been published.

Content

According to the government’s response to the consultation, the statement will provide “clear, neutral information” on a worker’s right to join a trade union. It will also include:

a brief explanation of a trade union’s functions
details of any trade unions recognised by the employer and/or any statutory access agreements (where applicable), together with contact details for the unions. Where the listed trade unions do not apply to all workers, employers must specify the relevant staff group(s), grades or locations covered
a summary of the statutory rights in relation to trade union membership

Employers must also either include a link to the Certification Officer’s list of trade unions within the statement or provide a copy of the list alongside the statement. The Certification Authority is the independent authority with responsibility for maintaining a list of trade unions.

The statement will also clarify that trade unions may charge a membership fee.

Delivery

This new obligation applies to both new and existing workers. For new workers, the statement must be delivered directly (e.g. by email, post or in person) at the same time as the Section 1 written statement of employment particulars, i.e. at the outset of the working relationship.

For existing workers, employers may provide the information either directly or indirectly. If provided directly, the statement must be re-issued annually by 5 April. Where an indirect method is used (e.g. by placing it on an intranet, digital platform or workplace noticeboard), employers must ensure that the statement remains continuously and reasonably available to workers. Employers must also issue annual reminders explaining that the statement is available and where it can be found.

If there is any change to the identity of the unions that have recognition or statutory access agreements, the statement must be reissued within one month of the change.

Frequency

Employers will need to issue the statement to all new workers from 1 January 2027 and ensure that all existing workers receive it by 5 April 2027. There must then be annual reminders, as outlined above.

Enforcement

The government’s response confirms that this new duty will operate within the existing enforcement framework under the Employment Act 2002, i.e. if this information is not provided, and the worker is successful in a separate employment tribunal claim, they will be able to receive compensation of between two and four weeks’ pay (subject to the statutory cap) – in the same way a worker can currently do this in relation to any other failure to comply with the information requirements in Section 1 of the Employment Rights Act 1996.

Practical considerations for employers

The revised implementation date means employers have one fewer change to address in October 2026. Furthermore, with the government providing the template statement to be issued to workers, there will not be as much for most employers to do before 1 January 2027, save to consider how they are going to provide this information to their workers (directly or indirectly) and what changes (if any) need to be made to their existing processes to reflect this. Employers with an existing trade union presence should ensure they have the necessary information available to allow them to include the specific workplace information in the statement. Remember also that the government’s aim in introducing these provisions (coupled with the new right for trade unions to access workplaces) is to raise awareness among workers of the role of trade unions, which in turn it hopes will lead to an increase in trade union membership and increased worker engagement in collective bargaining. As such, this new duty to inform workers should be viewed not simply as a compliance issue, but as part of the wider package of trade union reforms that is being introduced by the government.

Legal NewsBITE: Food and Drink Quarterly September 2026

Wed, 30 Sep 2026 09:00:00 +00:00

Welcome to Legal newsBITE: Food and Drink Quarterly, put together by our UK and EU food and drink team.

Articles this quarter include:

October 2026 checklist for UK Employment Rights Act 2025
Undisclosed social media adverts featuring “less healthy” foods
UK proposed ban on energy drinks to u-16s from April 2027
EU Packaging and Packaging Waste Regulation (PPWR) starts to apply
UK Deposit Return Scheme: Stepped producer fees introduced
UK Plastic Packaging Tax: Preparing for the mass balance approach
EU ultra processed food (UPF) definition
New EU rules on green claims, durability and repairability
UK Health and Safety Executive (HSE) latest work-related fatal injury statistics
UK Corporate Waste Responsibility Bill: Proposed new corporate responsibilities for waste management
New EU rules on the use of meat and meat product names and on "fair", "equitable" and "short supply chain" claims
A new framework for new genomic techniques
European Food Safety Authority (EFSA) lowers the safe level for exposure to TFA
European Commission updates product scope of the EU Deforestation Regulation and issues guidelines on the EU Forced Labour Regulation
UK Food Standards Agency guidance (FSA) on cell-cultivated products
Supply chain risk and resilience in the food industry

If you have any comments or suggestions for Legal newsBITE or you would like to get in touch, please contact us.

Analysis of Ohio HB52

Tue, 29 Sep 2026 17:49:33 +00:00

Introduction

Ohio House Bill 52 (HB52) revises Ohio’s regulatory framework governing certified registered nurse anesthetists (CRNAs). HB52 is not an authorization of CRNA autonomy but represents an expansion of physician delegation authority. All CRNA actions authorized under HB52 require a physician, podiatrist or dentist to request the CRNA to perform them, and must be in accordance with policies adopted by the healthcare facility. Thus, CRNA practice may be limited by both the collaborating physician, podiatrist or dentist and the facility.

HB52 was signed by Governor DeWine on March 10, 2026, and took effect June 9, 2026. It replaces the longstanding supervision model for CRNAs with a collaboration framework; updates statutory provisions regarding CRNA scope of anesthesia practice; introduces patient-notification requirements; clarifies the roles of physicians, podiatrists or dentists who work with CRNAs and introduces protective measures designed to ensure close monitoring of a CRNA’s scope of anesthesia practice while ensuring patient safety. HB52’s key provisions include, among other things:

Shifts the relationship between the CRNA and the physician, podiatrist or dentist from “supervision” to “collaboration,” while retaining the requirement that the CRNA’s anesthesia related service activities be subject to the request of the collaborating physician, podiatrist or dentist.
Emphasizes the responsibility of a healthcare facility to define and limit, within the statutorily defined CRNA scope of practice parameters, the permissible anesthesia related activities a CRNA may perform at the facility through privileging and other policies.
Empowers facilities and collaborating physicians, podiatrists and dentists to exercise proper judgment and further limit CRNA anesthesia related service activities in specific cases when such limitations are deemed to be in the patient’s best interest.
Revises statutory presence requirements for anesthesia administration and related activities, while preserving facility and collaborating physician, podiatrist and dentist authority to apply stricter presence requirements.
Revises and clarifies CRNA authority to provide limited anesthesia-related services, if requested, and is subject to limitations imposed by the facility and collaborating physician, podiatrist or dentist.
Requires healthcare facilities to provide patients advance notice in writing and verbally regarding the practitioners who will administer anesthesia services.
Establishes additional provisions governing collaboration with dentists and podiatrists.
Expressly prohibits CRNAs from prescribing drugs for use outside of the healthcare facility.

Purposes and goals of HB52

The legislature’s goals in adopting HB52 appear to be to modernize Ohio’s nursing statutes to reflect contemporary CRNA practice while maintaining and extending institutional and professional safeguards over CRNA practice. Per HB52’s primary sponsor, State Representative Kellie Deeter, HB52 is not intended to expand CRNA practice, but instead explicitly clarifies it by (i) modernizing and streamlining Ohio’s CRNA statutes, (ii) providing a clear and consistent regulatory framework and (iii) maintaining physician-led care.¹ In replacing Ohio’s prior supervision model with a collaboration framework, HB52 does not establish independent practice for CRNAs. Instead, it eliminates certain statutorily imposed procedural restrictions on CRNA practice, while also shifting responsibility and authority toward healthcare facilities and collaborating physicians, podiatrists and dentists (and the Board of Nursing) to define and limit, within the statutorily defined practice parameters, the anesthesia related service activities a CRNA practicing at the facility may perform. These procedural safeguards effectively empower those with more first-hand knowledge and clinical experience overseeing CRNA practice, rather than the state legislature, to define and limit CRNA practice within specific facilities and in individual circumstances. Altogether, HB52’s final enactment preserves and introduces mechanisms intended to protect patient safety, including Board of Nursing oversight, collaboration requirements, physician discretion to restrict autonomy, facility-based restrictions, credentialing controls and mandatory patient disclosures.

HB52’s principal provis

Transition from supervision to collaboration

Prior law required a CRNA to practice under the “supervision” of a physician, podiatrist or dentist, requiring that a CRNA perform requested anesthesia related service activities in the supervising physician’s, podiatrist’s or dentist’s immediate presence. HB52 replaces the “supervision” requirement with a collaboration model². Under this model, collaboration is established when a physician, podiatrist or dentist requests that a CRNA perform certain authorized patient care activities. Unlike Ohio’s statutes governing collaboration with other advanced practice registered nurses, HB52 does not require that collaborating physicians, podiatrists or dentists enter into a standard care agreement with CRNAs.

Under this new collaboration model, a CRNA’s authority to provide anesthesia in a specific case is established and limited by the collaborating physician’s, podiatrist’s or dentist’s request. Collaboration for a CRNA is defined as a relationship in which a physician, dentist or podiatrist “requests, either verbally or in writing, the nurse to perform certain patient care activities authorized by division (D) of Section 4723.43 of the Revised Code and the request is made in accordance with policies established by the healthcare facility³ where the nurse and the dentist, physician, or podiatrist practice.”⁴ Accordingly, the statute replaces a supervision-based practice model with an authorizationand- collaboration framework under which the collaborating physician, podiatrist or dentist both initiates and defines the CRNA’s involvement in patient care, while the CRNA performs the requested anesthesia related services within the scope of the CRNA’s licensure, and facility privileges and policies. Notably, HB52 provides little in the way of specifics regarding requirements for how or when a collaborating physician, podiatrist or dentist may request CRNA involvement, other than that the request be made “verbally or in writing.” However, the request for, and performance of, CRNA anesthesia related services must be made in accordance with the policies of the healthcare facility where the collaborating physician, podiatrist or dentist and CRNA practice, which empowers the healthcare facility to define and further limit how and when requests for CRNA anesthesia related services may be made. Thus, HB52 transfers responsibility to facilities to define for themselves the process and circumstances in which collaborating physicians, podiatrists and dentists may request CRNA services, which may be more restrictive than is permitted under statute.

Immediate presence no longer required

HB52 repeals the statutory requirement that a collaborating physician, podiatrist or dentist be in the immediate presence of the CRNA while anesthesia is administered or during induction, maintenance and emergence. Instead, HB52 requires that the collaborating physician, podiatrist or dentist be present at the healthcare facility when the CRNA is performing induction, maintenance and emergence of general anesthesia.⁵ However, nothing in HB52 prevents a facility from implementing its own, stricter, presence requirements through its policies, particularly for patient safety.

CRNA scope of practice revisions

HB52 maintains CRNA authority to engage in numerous clinical activities associated with anesthesia care, including the selection, ordering and administration of intravenous fluids and medications. HB52 also clarifies CRNA authority to perform certain other anesthesia related tasks and other services. CRNA scope of practice clarifications and revisions under HB52 include:

Consolidating several statutes containing CRNA scope of anesthesia practice provisions under a single statute section, Ohio Rev. Code § 4723.43(D)
Specifically permitting CRNAs to perform epidural or spinal anesthetic procedures⁶
Permitting a CRNA to perform and document evaluations and assessments, which may include ordering and evaluating one or more diagnostic tests, in connection with the performance of clinical support functions in addition to conditions related to the administration of anesthesia⁷
Clarifying a CRNA’s authority to select, order and administer drugs, IV fluids and treatments for conditions related to the performance of clinical support functions⁸
Extending the CRNA’s authority to direct a registered nurses (RN), licensed practical nurse (LPN) or respiratory therapist in performing certain supportive care services and administration of drugs, IV fluids and treatments to include performance of clinical support functions⁹
Expressly prohibiting a CRNA from prescribing a drug for use outside of the location where the CRNA practices¹⁰
Eliminating statutory temporal restrictions on performance of certain CRNA anesthesia related service activities, which required that such services be performed in a period beginning with the patient’s admission for surgery or procedure, and ending with the patient’s discharge from recovery

Importantly, the statutory CRNA scope of anesthesia practice provisions represent the “outer limit” of what services CRNAs may be authorized to perform. The services a CRNA may provide in a particular case are defined, and thus limited by, the scope of request from the CRNA’s collaborating physician, podiatrist or dentist. Furthermore, and as discussed in Section IV, HB52 empowers healthcare facilities to limit CRNA scope of anesthesia practice at their respective facilities through credentialing, privileging and other facility policies. Finally, facilities and collaborating physicians, podiatrists and dentists have the authority to limit a CRNA’s anesthesia related service activities if the facility or collaborating physician, podiatrist or dentist deems such limitations to be in the patient’s best interest. Thus, a facility is not required to permit its CRNAs to perform the full scope of services defined under 4723.43(D).

In evaluating policies and the privileging process regarding CRNA anesthesia related practice, healthcare facilities should carefully consider the degree to which its CRNAs should be permitted to perform the services identified in 4723.43(D), and in what circumstances. For example, HB52’s changes expressly recognize CRNA scope of anesthesia practice to include certain services performed in connection with “clinical support functions.” However, HB52 leaves “clinical support functions” undefined. It is now up to healthcare facilities and collaborating physicians, podiatrists and dentists to consider how much authority they are willing to provide CRNAs to perform these services in a clinical support context. Since HB52 gives healthcare facilities this authority, great care should be exercised, as the statute cannot be relied upon to provide an excuse for failing to carefully exercise such authority.

Patient disclosure requirements

A new patient-notification requirement mandates that healthcare facilities inform patients, before anesthesia administration or the performance of an epidural or spinal anesthetic procedure, whether the anesthesia service will be provided by a CRNA, physician, podiatrist or dentist.¹¹ Facilities should review admission, informed-consent and preprocedure documentation processes to ensure compliance with these disclosure requirements.

Collaboration with podiatrists and dentists

Podiatrists

HB52 makes significant changes to CRNA relationships with podiatrists. As discussed above, HB52 replaces the former supervision model with a collaboration framework under which a podiatrist may request that a CRNA perform certain patient-care activities. Most notably, the legislation prohibits the State Medical Board from preventing podiatrists practicing outside hospitals or podiatry colleges from collaborating with CRNAs.¹² This change appears intended to facilitate anesthesia-service arrangements in ambulatory and office-based podiatric practice settings. HB52 also removes the restriction that a CRNA’s scope of practice be limited to the anesthesia procedures that the collaborating (formerly supervising) podiatrist has authority to perform.¹³ Nevertheless, CRNA collaboration with podiatrists remains subject to facility policies, credentialing standards and delineated privileges, preserving substantial institutional oversight notwithstanding the statutory expansion of podiatrist collaboration authority. A collaborating podiatrist should exercise great care to ensure ultimate patient safety and the qualification of the CRNA, given that a CRNA may be practicing outside the scope of the podiatrist’s own authority.

Dentists

Under HB52, a dentist may collaborate with a CRNA only if the dentist holds a conscious sedation permit or general anesthesia permit issued by the State Dental Board.¹⁴ The legislation thereby conditions CRNA participation on the collaborating dentist’s existing regulatory authority to provide sedation or anesthesia services. HB52 appears intended to facilitate collaborative anesthesia care while preventing dentists from utilizing CRNAs to expand the scope of services otherwise authorized under their permits. Unlike with podiatrists, when collaborating with a dentist, the CRNA’s scope of practice is limited to the anesthesia procedures that the dentist has the authority to perform under the dentist’s conscious sedation or general anesthesia permit. As with physician and podiatrist collaborations, CRNA anesthesia related services activities remain subject to applicable facility policies, credentialing standards and delineated clinical privileges, preserving substantial institutional oversight notwithstanding the statutory shift from supervision to collaboration.

Facilities and physicians should exercise power to limit CRNA authority when appropriate

As discussed above, HB52 does not merely replace supervision with collaboration. It also expressly vests both healthcare facilities and collaborating physicians, podiatrists and dentists with significant authority to limit what a CRNA may do. HB52 shifts the burden for defining a CRNA’s scope of practice from legislation and regulation to the facilities and physicians, podiatrists and dentists who work with CRNAs on a daily basis. As a result, HB52 should not be read as creating unrestricted CRNA autonomy. Rather, CRNA anesthesia related activities at a facility are subject to institutional governance and clinical privileging. During the legislature’s consideration of HB52, maintaining healthcare facility safeguards and collaborating physician, podiatrist and dentist oversight of CRNA delivered anesthesia related services was cited by key stakeholders as an important component of the bill. For example, in support of HB52, Representative Kellie Deeter noted that HB52 “makes clear that both the healthcare facility and the collaborating provider determine CRNA scope of practice activities consistent with their training, education and delineation of privileges, without altering any model of care,”¹⁵ while a representative from the Ohio State Association of Nurse Anesthetists recognized that HB52 “supports clear, consistent oversight by healthcare organizations and collaborating providers.”¹⁶ In light of this, it is very important that healthcare facilities and collaborating physicians, podiatrists and dentists give thorough consideration to the scope of CRNA anesthesia related service activities to be provided in a facility or a particular case, including the circumstances in which anesthesiologist involvement should be required. Facilities and collaborating physicians, podiatrists and dentists should make responsible decisions in the best interests of patient care.

Facility policies become a principal source of authority

HB52 requires a CRNA who performs requested patient-care activities must do so “in accordance with policies established and privileges delineated by the healthcare facility” where the CRNA and collaborating physician, podiatrist or dentist practice.¹⁷ This means that even if Ohio law defines a particular services to be within the CRNA scope of practice, the facility may choose to impose narrower restrictions through its policies, including:

Medical staff bylaws
Anesthesia department policies
Credentialing criteria
Delineated privileges
Quality-assurance requirements
Practice protocols

For example, a hospital could:

Require anesthesiologist involvement for specified procedures
Limit newly credentialed CRNAs to certain cases
Restrict pediatric, cardiac, trauma or obstetrical anesthesia privileges
Require consultation with an anesthesiologist before particular anesthetic techniques are used
Establish documentation or quality-review requirements exceeding statutory minimums

Nothing in HB52 appears to prohibit these types of institutional limitations. Facilities should carefully consider and implement safeguards focused on patient care.

Collaborating physicians, podiatrists and dentists retain case-specific authority

HB52 defines collaboration as occurring when a physician, dentist or podiatrist requests the CRNA to perform certain patient-care activities.¹⁸ Because the collaboration relationship is based upon a request from the collaborating physician, podiatrist or dentist, the collaborating professional necessarily retains authority to define what anesthesia related service activities are being requested in a particular case.

Practically speaking, a collaborating physician could request a CRNA:

Provide a complete anesthetic
Perform only certain anesthesia-related service activities functions
Refrain from particular techniques
Involve an anesthesiologist in all aspects of care

HB52 does not require a collaborating physician, podiatrist or dentist to delegate every activity within the CRNA’s statutorily defined scope of practice. Rather, CRNA authority flows from the requested activity itself.

Authority to restrict activities based on a patient’s best interest

HB52 provides the collaborating physician, dentist, podiatrist or facility where the CRNA and collaborating physician, podiatrist or dentist practice, express statutory authority to restrict CRNA anesthesia related service activities that are not, in the view of the collaborating physician, podiatrist or dentist or relevant healthcare facility, in the patient’s best interest. In this case, even if a CRNA is authorized by statute and his or her delineated privileges to perform a particular service, the facility or collaborating physician, podiatrist or dentist should restrict the CRNA’s authority to perform certain services if either believes that such limitation would be in the patient’s best interest.

Examples of such restrictions could include:

Restricting a CRNA from a difficult airway case
Limiting management of medically complex patients
Requiring physician participation in the management of certain complex patients and/or procedures
Restricting certain sedation techniques
HB52 imposes no standard other than the patient’s best interest on when a facility or collaborating physician, podiatrist or dentist may exercise this authority to limit a CRNA’s activities, empowering facilities and collaborating physicians, podiatrists and dentists to further limit CRNA provided anesthesia services in their best judgment for a particular case. Entrusted with this patient safety authority, facilities and collaborating physicians, podiatrists and dentists should exercise their powers carefully, considering the CRNAs ability to handle adverse events, CRNA experience, patient risk factors and other relevant issues.

Liability considerations

HB52’s replacement of Ohio’s CRNA supervision requirement with a collaboration framework does not eliminate potential liability for physicians and healthcare facilities arising from CRNA provided anesthesia service activities. In Ohio and elsewhere, liability historically has not been based on the distinction between a supervising and collaborating physician. The standard is the same for either role. For example, Ohio courts have consistently looked beyond regulatory labels and instead focused on traditional common law principles of agency, control and assumed duties. Thus, the question after HB52 is not simply whether a physician is designated a “collaborator” rather than a “supervisor,” but whether the physician exercised sufficient control over the conduct at issue or otherwise assumed responsibilities whose breach contributed to the patient’s injury.

Ohio law recognizes that physicians can be held liable for the conduct of others and their own conduct. In Baird v. Sickler, the Ohio Supreme Court held that a surgeon “may, under the doctrine of respondeat superior, indeed be liable for the alleged negligence of the nurse-anesthetist who assisted him [or her] during the operation.”¹⁹ There, the plaintiff was rendered permanently paraplegic following a procedure in which a nurse anesthetist administered anesthesia.²⁰ The surgeon testified that he instructed the anesthetist during intubation, observed the procedure and had both the right and duty to stop the procedure if performed improperly.

Thus, the surgeon had exercised enough control of the nurse for the surgeon to be liable for the nurse’s actions.²¹ Although the court rejected a broad captain-of-the-ship doctrine that “would hold a surgeon responsible for all that transpires in the operating room,” it emphasized that “where, in the operating room, a surgeon does control or realistically possesses the right to control events and procedures, he does so with a high degree of care.”²² Accordingly, Baird confirms that physician liability remains available whenever the facts support a masterservant relationship, even when a CRNA is not directly employed by the physician. Notably, the later case Ferguson v. Dyer did not overrule Baird, and instead distinguished by explaining that a surgeon who instructed, supervised and participated in the challenged conduct could still be liable under Baird, while a physician who merely issued standing orders would not automatically be liable under Ferguson.²³ The inquiry remains fact specific based on the physician’s involvement, industry standards and the reasonableness of the physician’s decisions.

Physicians may also face direct liability based on duties they independently undertake. In Lownsbury v. VanBuren, the Ohio Supreme Court held that “a physician-patient relationship can be established between a physician who contracts, agrees, undertakes or otherwise assumes the obligation to provide resident supervision,” and a patient the physician never personally treated.²⁴ The court reasoned that a physician who undertakes supervisory responsibilities may owe patients a corresponding duty of care, and liability may arise from the physician’s own failure to discharge those responsibilities.²⁵ Likewise, although Ferguson v. Dyer rejected liability based merely on a physician’s theoretical authority over a nurse, the court emphasized that “the inquiry focuses on the question of control,” specifically whether control over the employee passed to the physician “with reference not only to the result reached but to the method of reaching it.”²⁶ The court held only that “mere potential or possible control, of itself, is an insufficient basis to find liability pursuant to the loanedservant doctrine.”²⁷ Thus, Ferguson limits automatic liability, but it does not foreclose claims based on actual direction, supervision, or assumed responsibilities.

Healthcare facilities likewise remain exposed to liability under similar theories. Ohio law recognizes that a hospital may be held liable for the conduct of its negligent nurses where it has “a right of control over and responsibility for the actions of the nurse” and the nurse was “engaged in performing the work of the physician or hospital.”²⁸ HB52 gives the hospital a right of control over the CRNAs and facilities should exercise this right with care. More recently, Orac v. Montefiore Foundation reaffirmed that “hospitals can be vicariously liable for the negligence of its nurses even if the nurse or other hospital employee is not named in a plaintiff’s complaint.”²⁹ Orac also recognized that negligence claims against a healthcare facility require proof of a duty, breach, causation, and damages.³⁰

It then allowed claims against a nursing home to proceed in part based on a duty to provide adequate care.³¹ Thus, even where a facility is not liable for a particular employee’s conduct, a healthcare facility may also be directly liable for its own negligent policies, staffing, supervision, credentialing or other institutional failures. Liability is not based on labels such as “supervision” or “collaboration”. Liability is fact-specific and can be based on a failure to exercise reasonable care or reasonable restraint powers.

Accordingly, HB52 does not alter existing common law liability. Neither the statute nor existing Ohio case law supports the conclusion that due to the shift from “supervision” to “collaboration” physicians and facilities face little to no risk from CRNA conduct. The truer reading of Ohio law is that liability will continue to depend on traditional factintensive inquiries concerning control, delegation, assumed duties, supervision, credentialing and institutional oversight, rather than the statute’s use of the term “supervision” or “collaboration.” In light of this, facilities and collaborating physicians, podiatrists and dentists should carefully consider the scope of anesthesia related service activities in which CRNA’s should be engaged, and whether it may be preferable to maintain the involvement of anesthesiologists in particular circumstances and through a care team model.

Practical patient safety considerations

In the end, regardless of ultimate legal liability, which may not be determined until after years of lengthy and costly litigation, patient care should be paramount. Facilities and collaborating physicians, podiatrists and dentists should consider safeguards to protect from bad outcomes.

When determining whether anesthesia related services should be provided by a CRNA, a physician anesthesiologist or an anesthesia care team model, healthcare facilities and collaborating physicians, podiatrists and dentists should recognize that the most significant exposure generally arises not from routine, uncomplicated procedures, but from rare and catastrophic events. Cases involving airway emergencies, unrecognized hypoxia, hemodynamic collapse, aspiration, anaphylaxis, malignant hyperthermia, cardiac arrest or other anesthesia-related crises frequently result in substantial litigation and retrospective scrutiny of staffing, supervision, credentialing and coverage decisions.

Importantly, when a serious anesthesia complication occurs, liability exposure is rarely limited to the individual anesthesia provider. Plaintiffs commonly pursue claims against the surgeon, ambulatory surgery center, hospital, anesthesia group and other entities involved in the design and implementation of the anesthesia care model. Allegations often focus on negligent supervision, negligent delegation, inadequate credentialing or privileging, failure to provide appropriate physician backup or institutional decisions that allegedly failed to account for foreseeable emergency situations.

Recent litigation illustrates the magnitude of this risk. In a Texas case arising from routine orthopedic surgery, a patient suffered catastrophic brain injury following alleged anesthesia-related complications and was left in a permanent vegetative state. A jury awarded more than US$21 million in damages. The litigation focused not only on the actions of the anesthesia providers, but also on the adequacy of supervision, staffing arrangements, monitoring and the level of physician involvement available when complications developed. The case demonstrates how a catastrophic outcome can lead to scrutiny of the entire anesthesia delivery model adopted by the providers and facility.

For surgeons, a particular concern arises when they assume supervisory or collaborative responsibilities over CRNAprovided anesthesia service activities. In the aftermath of a serious adverse event, plaintiffs may argue that the physician, podiatrist or dentist failed to ensure adequate anesthesia coverage, selected an inappropriate anesthesia model for the patient or procedure or participated in staffing decisions that left the patient without immediate access to necessary expertise during an emergency. Even where the collaborating physician, podiatrist or dentist played no role in administering anesthesia, the surgeon’s involvement in the care model or oversight structure may become a central issue in litigation.

Facilities face similar risks. Hospitals and ambulatory surgery centers may be accused of negligent credentialing, negligent privileging, inadequate staffing or adoption of policies that placed economic considerations ahead of patient safety. Plaintiffs’ counsel often examine whether the facility adequately assessed patient acuity, procedural complexity, available emergency resources and the need for physician-level anesthesia expertise when establishing anesthesia coverage policies. Allegations that a staffing model was chosen primarily for financial efficiency can be particularly damaging when presented to a jury following a catastrophic patient outcome.

A recurring issue in anesthesia litigation is the distinction between routine anesthesia management and crisis management. While anesthesia care is delivered safely in the overwhelming majority of cases, the legal focus often shifts to whether the providers and facility were prepared for the uncommon but foreseeable emergency. When plaintiffs allege delayed recognition of physiologic deterioration, failed airway rescue, ineffective emergency response or inadequate management of a rapidly evolving crisis, they frequently contend that greater anesthesia expertise or more direct physician involvement could have improved the outcome. Whether such claims ultimately prevail, they still create significant risk for all parties involved.

Accordingly, facilities and collaborating physicians, podiatrists and dentists should carefully evaluate the appropriateness of the anesthesia model for each patient population and practice setting. Relevant considerations include patient comorbidities, procedural complexity, anticipated airway challenges, availability of immediate emergency support, provider experience, supervision requirements, credentialing standards and applicable regulatory obligations. Decisions regarding anesthesia coverage should be documented as patient-safety decisions grounded in clinical judgment and risk assessment rather than solely on operational efficiency or cost considerations.

Although no staffing model can eliminate the inherent risks associated with anesthesia care, recent malpractice litigation demonstrates that courts and juries may closely examine the decisions made by facilities and collaborating physicians, podiatrists and dentists regarding anesthesia coverage when catastrophic outcomes occur. Careful consideration of provider qualifications, supervision structures, emergency-response capabilities, and patient-specific risk factors can reduce both patient-safety risks and potential liability exposure.

Takeaways

Although HB52 is often described as simply replacing “supervision” with “collaboration,” healthcare facilities and collaborating physicians, podiatrists and dentists should view the legislation as a broader restructuring of their role in anesthesia governance. In large part, HB52 shifts responsibility from statutory supervision requirements toward facility-driven credentialing, privileging, policies and professional accountability.

Collaboration does not mean independence – HB52 does not establish independent practice for CRNAs. Rather, CRNAs may provide anesthesia related services activities when requested by a collaborating physician, dentist or podiatrist, and in accordance with the relevant facility’s policies and privileges, as well as any limits deemed suitable by the requesting physician. Facilities should consider whether existing policies should be revised to accurately reflect the facility’s own intended CRNA collaborative practice model.

Facility policies are critically important – With HB52’s enactment, the onus on defining CRNA scope of practice at a particular facility now lies with the facilities themselves. Under the prior regulatory framework, compliance and liability questions frequently focused on whether supervision requirements were met. With HB52’s enactment, such inquiries are likely to now focus on facility policies, the CRNA’s granted anesthesia-related privileges, whether policies were followed and whether other restrictions were or should have been imposed on the CRNA. If the facility believes certain categories of patients, procedures or anesthetic techniques warrant additional oversight, it has a responsibility to address these matters through facility policies, including the credentialing and privileging processes. Facilities should conduct a careful and comprehensive review of anesthesia privileging, credentialing and informed-consent policies to ensure they are consistent with HB52’s framework and the facility’s intended operation of its anesthesia program.

Collaboration should be operationally defined – HB52 defines collaboration broadly as a written or verbal request to a CRNA from a collaborating physician, podiatrist or dentist to perform patient-care anesthesia related activities, but it does not provide detailed guidance concerning elements such as consultation expectations or escalation protocols. Accordingly, facilities may benefit from developing internal standards to address these open issues, such as when consultation with an anesthesiologist is expected and structured processes that should be followed for the management of high-risk cases. A facility’s anesthesiologists should have a role in helping a facility develop operational parameters for requests for CRNA provided anesthesia services.

Liability theories are likely to shift – HB52 does not eliminate malpractice or negligence exposure for either collaborating physicians, podiatrists, dentists or healthcare facilities. However, post-HB52, these cases may focus on claims of negligent credentialing and privileging, adequacy of facility policies, consultation processes, institutional negligence, individual professional negligence and other theories. Because of this, facilities should carefully consider their privileging and other policies, the processes for implementing them and the degree to which the facility will rely upon CRNA provided anesthesia services in light of HB52’s changes. Physicians, podiatrists and dentists should carefully consider the degree to which they request and/or limit CRNA provided anesthesia services.

Letter from State Representative Deeter to Ohio House Health Committee (Deeter Testimony).
Medicare conditions of participation for hospitals still impose certain supervision requirements for CRNAs performing anesthesia services if the state where the hospital is located has not opted out of these requirements. See 42 C.F.R. § 482.52. Ohio opted out of these requirements in July 2026, consistent with the legislation, but the opt-out does not reflect any deviation from, or expansion of HB52; it is a natural by-product of it. Facilities and physicians should remain aware of individual private payor supervision requirements and ensure there is no variation in the standard of care based on patient payment source. These issues are outside the scope of this analysis, but nevertheless important factors in setting policies and procedures.
For purposes of the CRNA statutes, “healthcare facility” is defined as an ambulatory surgical facility, cardiovascular or vascular center, freestanding birthing center, hospital or office of a dentist, physician or podiatrist. Ohio Rev. Code § 4723.01(L)(3).
Ohio Rev. Code § 4723.01(L)(3).
Ohio Rev. Code § 4723.43(D).
Ohio Rev. Code § 4723.43(D)(3).
Ohio Rev. Code § 4723.43(D)(7).
Ohio Rev. Code § 4723.43(D)(6).
Ohio Rev. Code § 4723.43(D)(8).
Ohio Rev. Code § 4723.43(D).
Ohio Rev. Code § 4723.434(A).
Ohio Rev. Code § 4731.513.
See Ohio Rev. Code § 4723.43.
Ohio Rev. Code § 4723.43.
Deeter Testimony.
Letter from Angela Milosh, representative for Ohio State Association of Nurse Anesthetists to Ohio Senate Health Committee, Oct. 22, 2025.
Ohio Rev. Code § 4723.43(D).
Ohio Rev. Code § 4723.01(L).
Baird v. Sickler, 69 Ohio St.2d 652, 654.
Id. at 652.
Id. at 654–55 (explaining that the surgeon “not only controlled but also participated in the administering of the anesthetic” and “had the right to control it”).
Id. at 655.
Ferguson v. Dyer, 149 Ohio App.3d 380, 388.
Lownsbury v. VanBuren, 94 Ohio St.3d 231, 241
Id. at 241–43.
Ferguson v. Dyer, 149 Ohio App.3d 380, 384 (quotation marks and citation omitted).
Id. at 388.
Morris v. Children’s Hosp. Med. Ctr., 73 Ohio App. 3d 437, 442 (1991).
Orac v. Montefiore Foundation, 255 N.E.3d 189, 201 (Ohio Ct. App. 2024).
Id. at 195, 202–03.
Id.

Pensions Weekly Update: 29 September 2026

Tue, 29 Sep 2026 09:00:00 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

HM Revenue and Customs (HMRC) has published Pension Schemes Newsletter 185. This includes a reminder that registered pension schemes should be migrated onto the Managing Pension Schemes service by 31 December 2026, with the old Pension Schemes Online platform closing in April 2027. Our blog contains more information on the process. The newsletter also notes that the government plans on legislating to simplify the taxation of certain lump sum death benefits paid in excess of the lump sum and death benefit allowance. Any tax due on these payments will still be charged at the beneficiary’s marginal rate of income tax, but the amount above the allowance will no longer count as pension income for other tax purposes.
The Society of Pension Professionals (SPP) has published a paper on rethinking pension policy for the self-employed. This addresses findings in the Pensions Commission’s interim report that just 4% of wholly self-employed workers are currently saving into a pension scheme, with participation even lower among the younger self-employed. The paper explores a range of policy options to make retirement saving simpler, more accessible and more consistent with the realities of modern self-employment.
The Pensions Regulator (TPR) has published its September 2026 Master Trust Bulletin. TPR notes that updated guidance on significant event J will be published in the autumn, in response to industry feedback. (A significant event J is a failure of the systems or processes used in running the scheme that has a significant adverse effect on the security or quality of data or on service delivery). The bulletin also considers increasing investment in UK private markets, and provides the latest information on dashboards for master trusts.
Many employers are grappling with a significant increase in AI-assisted grievances, which are emerging as one of the most pressing workplace challenges for employers. Join our colleagues in the Employment & Labour team on 18 November 2026, for a webinar providing some practical tips and tactics for identifying and responding to AI-assisted grievances.

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

FCC “logic-bearing hardware component” rules take effect

Mon, 28 Sep 2026 17:30:00 +00:00

After consumer routers, power inverters and advanced robotics, next up are equipment authorization restrictions relating to “logic-bearing hardware components” and the Federal Communications Commission’s (“FCC” or “Commission”) Covered List. The agency approved the relevant rules in its so-called “dangerous gear” decision in late July of 2026. The provisions relating to such components will take effect on October 13, 2026.

The central change is a further expansion of the FCC’s equipment authorization restrictions from the identity of the producer of the finished device, to the identity of the producer of certain components inside the device.

The operative rule: Close component-part loophole – Beginning on the effective date, the FCC will not grant a new equipment authorization for a finished device that incorporates a logic-bearing hardware component produced by an entity identified on the Covered List if – had the device been produced by the Covered List entity – authorization of the device would be prohibited. This two stage inquiry requires more than just determining if the entity that produced the component is on the Covered List, but also whether the Covered List determination applicable to the producer is one that would have prohibited the producer from obtaining authorization for the particular finished device.

Rule concerns authorization of the finished device – The rule is not focused on restriction of the component itself, but on the finished device seeking FCC authorization because of what it contains. Changing the identity of the applicant for FCC authorization or putting a non-Covered List name on the finished product does not necessarily solve the underlying component problem.

What constitutes a “logic-bearing hardware component?” – The simple answer is many components. The specific definition is “any device, system, module, sub-assembly, integrated circuit, or other physical component that generates and uses timing signals or pulses at a rate in excess of 9,000 pulses (cycles) per second and uses digital techniques; inclusive of telephone equipment that uses digital techniques or any device, system, module, sub-assembly, integrated circuit, or other physical component that generates and uses radio frequency energy for the purpose of performing data processing functions, such as electronic computations, operations, transformations, recording, filing, sorting, storage, retrieval, or transfer.” The Commission’s Office of Engineering and Technology is delegated to respond to questions as to what sort of components meet the definition and provide further clarifications.

What does not? – Non-logic-bearing components would include, e.g.: (i) purely mechanical/structural parts (such as housings, chassis, brackets, fasteners and enclosures); (ii) passive electrical/electronic parts that don’t generate or use digital timing signals (such as simple resistors, capacitors, inductors, wiring/cable and connectors); (iii) basic power-only components that don’t themselves perform digital logic or radio frequency (RF) data processing (such as a plain battery cell, as opposed to a battery management system, which likely contains control logic and would qualify as a logic-bearing hardware component) and (iv) a bare motor with no embedded digital controller (as opposed to a motor controller/driver board, which would likely qualify as a logic-bearing hardware component). The defining character of non-logic bearing components is that they are fixed, do not use digital techniques and are non-programmable.

Component must be “produced by” Covered List entity – The FCC confirmed that “produced by” continues to be evaluated under a totality-of-the circumstances standard, looking to “substantial responsibility for or control over design, manufacture or assembly.” It should not be assumed that purchasing an item from an intermediary eliminates the need to determine who actually “produced” the component for purposes of the rule.

New rule is prospective – The requirements do not apply to previously authorized equipment, granted before the effective date, that might contain such components. They also do not apply to equipment subject to applications filed with the FCC or a telecommunications certification body, and pending as of October 13, 2026. However if the application is subsequently amended to add, substitute or change a logic-bearing hardware component, then that safe harbor is lost.

Not applicable to production-location-based Covered List entries – The FCC expressly states that the component rule does not apply merely because a component is covered by a production-location-based Covered List entry (like consumer routers produced in a foreign country for example). The component producer must itself be an entity identified on the Covered List under an applicable producer-provider- based determination (e.g., like a Huawei). Per the FCC, this also can include subsidiaries and affiliates.

Not applicable to every “foreign adversary” component – The Commission considered, but did not adopt a broader definitions covering logic bearing hardware components manufactured by any entity owned or controlled by a foreign adversary (e.g., China). The adopted prohibition is tied to entities on the Covered List. However, the Commission specifically reserved the right to act on the “foreign adversary” issue in a future Report and Order in the proceeding.

Not applicable to software or firmware – The rule does not apply to software or firmware components produced by entities on the Covered List.

Not applicable to all components from Covered List entities – The FCC stopped short of imposing a general prohibition on all parts from Covered List entities. At this point, only logic-bearing hardware components are covered.

Other changes that will become effective – Aside from addressing logic-bearing hardware components, the Commission made adjustments to equipment modification exceptions in the case of Covered List entities and changes that would cause the modified device to become Covered List equipment. The FCC also strengthened marketing provisions and expressly confirmed that certain online-marketplace activities constitute “marketing” for purposes of the rules.

What is next? – The FCC decision was accompanied by a further notice of proposed rulemaking, which signals the direction of the agency’s further train of regulatory thought on “component” implications. For example, the FCC has now taken comments on the following, among a list of additional issues related to the Covered List:

Codification of a definition of “produced by “ for purposes of Covered List and related Commission rules
Whether software and hardware bills of materials should be required to be submitted with equipment authorization requests
Whether to prohibit equipment authorization for any device that incorporates any components produced by an entity on the Covered List
Whether inclusion of software or firmware produced or provided by a Covered List entity raises the same national security concerns
Application of various importation restrictions to Covered list equipment

The comment period on these questions and other questions in the FNPRM will close on September 28, 2026.

What seems clear that there will be further Covered List related initiatives arising from the further rulemaking. Manufacturers, suppliers and online marketers of devices requiring equipment authorization should watch closely for these next steps, as well as how the FCC applies and interprets the “logic bearing hardware components” rules. The FCC is firmly committed to an increasingly granular approach when it comes to potential national security vulnerabilities in our communications networks.

DC Area Public Company Local Trends Review - 2026 Proxy Season

Mon, 28 Sep 2026 15:20:22 +00:00

In this recently released report, our DC Corporate and Securities team have reviewed the most recent proxy statements filed with the Securities and Exchange Commission (SEC) of the approximately 100 largest, by 2025 annual revenue, public companies in the DC area, and assessed high-level trends regarding the local public company market, as well as how the DC market aligns and contrasts with the trends and data of public companies nationally as well as with the 2025 DC 100 data.

In this fourth annual report, we analyze local public company metrics against the Fortune 500, S&P 500, Russell 3000, and other national surveys as available. This report provides helpful benchmarking data regarding how the DC-area public company market, while robust in number, differs at least in some respects from governance and disclosure perspectives compared to other markets, including from the national public company statistics.

Bulk-power systems:

Fri, 25 Sep 2026 18:03:29 +00:00

On September 9, 2026, the US Department of Energy (DOE) published a Request for Information (RFI) in the Federal Register, seeking public comments on implementation of President Donald J. Trump’s August 26, 2026, executive order (EO), “Declaring a National Emergency to Secure the United States Bulk-Power System” (EO 14421).

This RFI, issued by the DOE’s Office of Cybersecurity, Energy Security and Emergency Response (CESER), is the first formal step towards implementation of EO 14421, which granted the DOE broad authorities to develop a framework to restrict certain foreign-produced bulk-power system electrical equipment in the US – covering a wide range of equipment, including certain capacitors, transformers, regulators and high voltage circuit breakers. Information submitted by stakeholders in this comment period will help inform the scope of the rules that will implement these restrictions, as well as the availability of, and requirements for, any licensing or prequalification mechanisms.

Key takeaways are as follows; additional analysis of the RFI and EO 14421 can be found below.

Companies that purchase or sell equipment or software relating to electric energy generation or transmission should evaluate whether their activities could be included in the proposed scope of the forthcoming rule.
Large industrial facilities and technology providers should evaluate whether their energy connectivity or independent production capabilities could be impacted by the proposed scope of the forthcoming rule.
Stakeholders should consider whether providing comments on the rule could aid in providing clarity over the forthcoming rule’s footprint or whether and how it could impact their activities.

RFI – Informing the restrictions to be imposed under EO 14421

Overview – RFI includes 50 specific inquiries set out across eight topic areas, representing CESER’s priorities for industry and stakeholder input in ongoing implementation efforts:

Scope, definitions and covered transactions
Covered Foreign Entities and supply chain risk management
Risk evaluation and transaction review
Existing equipment and mitigation
Licensing, mitigation measures and prequalification
Domestic manufacturing, secure replacements and federal procurement
Economic and regulatory analysis
Implementation, information sharing and other matters

The RFI topic areas align with potential implementing regulations suggested in the EO, including:

Identification of additional countries or persons as Covered Foreign Entities for the purposes of the EO
Identification of persons owned or controlled by, or subject to jurisdiction or direction of a Covered Foreign Entity for the purposes of the EO
Identification of equipment or countries for which transactions warrant particular scrutiny
Establishment of licensing procedures authorizing otherwise prohibited transactions
Development of requirements for any prequalification framework for trusted vendors or equipment
Consideration of potential predetermined, or contextually negotiated mitigation requirements as a precondition for approval

Scoping the restrictions – The RFI indicates that the DOE plans to consider risks associated with certain technical, operational and life cycle relationships. Questions related to the scope of covered transactions signal that the scope of the bulk-energy restrictions will reach beyond physical energy infrastructure and components to cover certain software, firmware, digital and maintenance services, as well as remote access capabilities associated with bulk-power systems and related equipment.

Together, this could substantially increase potential industry exposure to the new restrictions and would require expansive assessments of numerous vendor and equipment contracts.

Feasibility of the implementation – In addition to questions seeking input on how the DOE should define and identify covered equipment and services, the RFI seeks input on several issues related to existing technical, supply chain and operational capabilities and restraints. The RFI includes several questions related to the practical implementation feasibility for key elements of the EO, including any anticipated economic, operational, supply chain and security constraints.

This indicates that DOE is likely focused on tailoring new restrictions and related procedures to achieve the EO’s underlying security goals while mitigating practical implementation challenges, such as service interruptions, maintenance delays or supply chain disruptions.

EO 14421: Securing the US bulk power system

EO 14421 was designed to ensure the security, reliability and integrity of America’s energy systems and address national and economic security, as well as infrastructure risks associated with the use of foreign-produced bulk-power system equipment in the US grid.

Emergency declaration – The EO declares a national emergency under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) with respect to the US bulk-power system, focusing on unusual and extraordinary threats presented by US reliance on foreign-produced bulk-power system electrical equipment and the lack of restrictions on acquisition or operation of such equipment. The EO specifies that threats are enhanced by rapid US energy demand growth and increased efforts by foreign actors to target US infrastructure through vulnerabilities in bulk-power systems.

The EO identifies as national-security threats the potential exploitation of digital backdoors or other vulnerabilities built into foreign-manufactured equipment or software, which could be used to sabotage the US electrical grid or gain unauthorized access to critical infrastructure.
The EO emphasized threats stemming from supply chain vulnerabilities created by US reliance on foreign sources for bulk-power equipment. An interruption in trade flows for critical components could disrupt bulk-power system operation, maintenance and expansion, threatening grid security and stability.

Foreign equipment ban – To address these threats, the EO establishes a broad prohibition on the purchase or installation in the US of certain foreign-produced bulk-power system electric equipment, including related critical software and digital capabilities that may pose cybersecurity or operational risks to these systems.

The new prohibition applies only where the Secretary of Energy, in consultation with the Secretaries of War, Commerce and Homeland Security, has determined that a transaction:

Involves “bulk-power system electric equipment – or any critical component, software, firmware, digital service, maintenance service or remote-access capability associated with such equipment – designed, developed, manufactured or supplied by persons owned or controlled by, or subject to the jurisdiction of a Covered Foreign Entity”
Poses “an undue risk of sabotage, unauthorized access, or other disruption; an undue risk of catastrophic effects on the security or resiliency of US critical infrastructure; or an unacceptable risk to” US security

Covered transactions – The EO provides broad definitions for equipment and transactions that may be covered by new prohibitions.

Bulk power systems – Systems that facilitate and control systems necessary for operating all or a portion of an interconnected electric energy grid or that are used in generation facilities essential to grid reliability.
- Transmission lines must be rated at 69,000 volts or higher to qualify as bulk-power systems.
- Facilities used in local distribution of electric energy are not bulk-power systems under this EO.
Covered equipment – Items used in bulk-power system substations, control rooms or power generating stations, including:
- Large generators, small generators, backup generators and generation turbines
- Utility-scale and other grid-connected inverters, as well as battery energy storage systems and uninterruptible power supply systems supporting critical infrastructure
- Industrial control systems (including remote terminal units, programmable logic controllers and intelligent electronic devices), distributed control systems and safety instrument systems
- Reactors, capacitors, current coupling capacitors, shunt capacitor equipment, coupling capacity voltage transformers, substation transformers and substation voltage regulators
- Automatic circuit reclosers, instrument transformers, protective relaying, metering equipment and high voltage circuit breakers
  In determining whether equipment falls within the scope of the EO, DOE and other relevant agencies may consider associated software and firmware, remote access capabilities, maintenance and update mechanisms, as well as other supply chain dependencies that may threaten the bulk-power system.
- These actions do not apply to items not included in the equipment list set out in the order, or those with broader applications outside of bulk-power systems that are unrelated to the national security concerns addressed by the order.
Covered foreign entity – Restrictions apply to countries subject to certain US restrictions on designated foreign governments or identified by the Secretary of Energy in consultation with specified senior officials, or any person owned, controlled or subject to the jurisdiction of the government of such countries.
- Countries subject to a US arms embargo or sanctions regime pursuant to the International Traffic in Arms Regulations (ITAR) (22 C.F.R. 126.1)
- Countries found to be engaged in conduct detrimental to US national security or foreign policy determined by the Energy Secretary in consultation with the Secretary of Defense, the Director of National Intelligence and the Assistant to the President for National Security Affairs

Application to existing systems – The EO also grants the DOE the authority to restrict activities associated with foreign bulk-power system electric equipment that was acquired or installed prior to August 26, 2026.

If the Secretary of Energy determines that existing equipment would be subject to the EO’s prohibition on new purchases or installations, he may, in consultation with senior administration officials, impose certain conditions on its continued use, operation or maintenance.

Conditions may include requirements to identify, isolate, monitor, secure, disconnect, replace or remove such equipment, which may be subject to phased compliance timelines to mitigate impacts on reliability or safety of existing operations
Before ordering remedial action with respect to pre-existing equipment, the Secretary should consider the availability of secure replacement equipment, continuity of essential services, and potential reliability and safety impacts

Implementation – Development and effectuation of procedures to implement the prohibitions set out in the EO will primarily be managed by the Secretary of Energy. As noted above, within 120 days of signing, the Secretary must publish rules or regulations to effectuate the EO.

The Secretary will also have to consult with the Federal Acquisition Regulation (FAR) Council within 180 days to develop and submit recommendations for revisions to the FAR aimed at ensuring that, in any federal procurement involving energy infrastructure, national security risks receive adequate consideration and procurement officers prioritize acquisition of US-manufactured energy infrastructure.

Within 90 days of receipt of these recommendations, the FAR Council should consider proposing amendments to applicable provisions of the FAR for notice and public comment

The Secretary is also directed to complete certain implementing actions as soon as practicable, though the EO does not set a specific deadline for these tasks.

Identification of bulk-power system equipment designed, developed, manufactured or supplied by persons owned by, controlled by or subject to the jurisdiction or direction of one or more Covered Foreign Entities that poses an undue risk of sabotage or subversion of any element of the US bulk-power system; of catastrophic harm to US critical infrastructure or economic security or otherwise poses unacceptable risks to national security and security of US persons
Development and submission of recommendations for the President on potential procedures and/or strategies to identify, inventory, isolate, monitor or replace equipment posing such risks

Pre-approval and licensing – The EO provides for the potential establishment of licensing, and/or pre-approval procedures to allow system operators and vendors to conduct certain transactions that would otherwise be prohibited, which is the process that the DOE has begun with the rulemaking.

In addition to a potential licensing regime, the Secretary may also establish criteria and procedures for prequalification of certain equipment or equipment vendors as trusted vendors. Vendors or equipment included on this list would be exempt from prohibitions with respect to future transactions for covered bulk-power system electric equipment.

Inclusion on this pre-qualification list does not override the Secretary’s authority to regulate or prohibit any specific covered transaction

How to comment on the RFI – The Secretary is ordered to publish rules or regulations to effectuate the policies set out in EO 14421 within 120 days of its signing, on or around December 27, 2026. CESER’s RFI seeks feedback from stakeholders, including utilities, states, equipment manufacturers and industry partners to inform development of formal requirements and practices aimed at securing the US bulk-power system.

Responses collected will help the DOE to ensure that any rules or regulations implementing EO 14421 provide clear guidance and predictability for the energy industry while effectively strengthening critical energy infrastructure, enhancing grid security and resilience and mitigating supply chain vulnerabilities.

The deadline for comment submissions is October 9, 2026. Comments should be submitted via regulations.gov under Docket No. DOE-HQ-2026-1123.
- Comments may be submitted via email to BulkPowerEO@doe.gov, including the phrase “Bulk-Power System Executive Order RFI” in the subject line
- Comments may be submitted via postal mail or hand delivery to Assistant Director Eric Rollinson:
  - Mailing Address: Eric Rollison, Assistant Director, Technology Development, Office of Cybersecurity, Energy Security, and Emergency Response, US Department of Energy 1000 Independence Avenue SW, Washington, DC

Our lawyers and policy professionals can assist clients in drafting strategic responses to the RFI before the October 9, 2026 deadline.

CMA calls for procurement reform and enhanced action against bid rigging

Thu, 24 Sep 2026 15:36:13 +00:00

The UK Competition and Markets Authority (CMA) has called on the government to make the prevention, detection and deterrence of bid rigging an explicit national procurement priority. The CMA estimates that collusion may be costing UK taxpayers between £1 billion and £3.5 billion each year, against annual public procurement expenditure of approximately £400 billion.

Its proposals include collecting complete bid-level data, including unsuccessful bids, in a machine-readable format and using data analytics and artificial intelligence (AI) to identify suspicious bidding patterns. Suppliers participating in public tenders should expect increased scrutiny of bidding behaviour, while contracting authorities may need to strengthen data collection, procurement design and escalation procedures.

Overview

On 8 September 2026, the CMA’s Chief Executive Sarah Cardell delivered a speech in Parliament accompanying the publication of two policy papers: “Public Procurement in the National Interest”, which considers how procurement can support competition, innovation, growth, resilience and longer-term public value; and “Rigged Bids, Real Costs”, which calls for a coordinated, data-led approach to detecting and deterring collusion in public procurement.

The reports reflect the CMA’s view that public procurement should be treated as a strategic economic capability rather than principally as an administrative process. However, procurement can deliver value only where the competition between suppliers is genuine. Bid rigging undermines that condition by creating the appearance of competitive tendering while suppliers secretly coordinate prices, bids or contract allocation.

Key procurement issues identified by the CMA

1. Clearer objectives and stronger trade-offs between policy goals.

The CMA notes that procurement is expected to deliver multiple objectives, including value for money, innovation, growth, resilience, national security, domestic jobs, skills and social value. These goals can conflict, requiring clearer priorities and more explicit trade-offs.

2. Public sector fragmentation can weaken purchasing power.

Multiple public bodies often buy from the same suppliers but share limited market intelligence, expertise and planning. This reduces purchasing power, weakens incentives for supplier investment and limits government’s ability to shape markets effectively.

3. Incentives favour compliance over outcomes.

Procurement teams are expected to support innovation, growth and resilience while being assessed mainly on compliance, risk management and short-term value. The CMA argues this encourages process over outcomes and calls for better incentives, capabilities and data to measure broader impacts.

4. Barriers hinder innovative firms and new entrants.

The CMA argues that procurement can be too costly, complex and uncertain for smaller and innovative businesses. While individual requirements may be reasonable, together they can favour incumbents, reducing competition and limiting opportunities for innovative firms to grow.

5. Procurement underutilised to drive and support innovation/emerging technologies.

Current procurement processes are primarily designed to buy established products and minimise risk. The CMA believes procurement should play a greater role in testing, commercialising and scaling emerging technologies that do not fit traditional models.

The CMA’s recommendations for procurement reform

To address these issues, the CMA proposes five broad changes to how public procurement is designed and delivered.

Greater focus on outcomes rather than process – Procurement authorities should receive clearer direction on desired outcomes and the trade-offs between cost, innovation, resilience, domestic capability and competition.
Stronger coordination across the public sector – Organisations buying from the same suppliers or markets should share expertise, market intelligence and procurement plans. Better coordination would improve market understanding, increase leverage and deliver efficiencies.
Improved procurement data and evidence – Authorities should assess how procurement decisions affect competition, supplier growth, innovation and market resilience. The CMA argues that outcomes cannot be effectively targeted unless they are measured.
Reducing barriers to participation – Bidder requirements should be proportionate, particularly where compliance costs could discourage small- and medium-sized enterprises (SMEs), scale-ups and innovative suppliers. The CMA notes that such requirements can create fixed costs similar to regulation.
Using procurement to drive and support innovation/emerging technologies – Processes should allow experimentation, phased development and managed risk where solutions or suppliers are not known in advance. The CMA highlights outcome-based requirements, staged procurement and maintaining competition between alternative solutions during development.

Bid rigging remains a key concern

The CMA’s second report, “Rigged Bids, Real Costs”, focuses on bid rigging in public procurement.

Bid rigging occurs when suppliers collude during a procurement process, creating the appearance of competition while secretly coordinating their bids. According to the CMA, this can result in higher prices, reduced quality and weaker incentives to innovate.

Sarah Cardell noted that research cited by the Organisation for Economic Cooperation and Development (OECD) suggests bid rigging can increase procurement prices by 20% or more. Using conservative assumptions, the CMA estimates that taxpayers could be overpaying suppliers by between £1 billion and £3.5 billion each year.

The CMA also highlighted that more than half of its completed bid-rigging cases since 2014 have involved public procurement.

Enforcement risks

Bid rigging is a serious infringement of UK competition law. Businesses found to have participated in collusive tendering arrangements may be subject to intrusive and time-consuming investigations by the CMA and, ultimately, significant financial penalties. Depending on the circumstances, findings of bid rigging may also have significant reputational consequences and affect eligibility for future public procurement opportunities. Individuals may also face personal consequences, including director disqualification in certain cases.

The CMA’s continued focus on public procurement, combined with increased use of screening tools and data analytics, suggests that suppliers should ensure that bidding decisions are made independently and that appropriate competition law compliance measures are in place.

Data analytics and AI detection

A central theme of the CMA’s report is the growing ability of competition authorities to detect bid rigging through technology.

The CMA notes that cartel enforcement has historically relied heavily on whistle blowers, complaints and chance discoveries. However, advances in data analytics and AI now enable suspicious bidding patterns to be identified across large datasets.

The CMA has developed its own Bid Rigging Intelligence Tool (BRIT), and is currently piloting the tool with government departments. Sarah Cardell stated that those pilots are already generating promising leads. However, the CMA believes that the full potential of the tool cannot be realised because procurement data, particularly information relating to losing bids, is not routinely collected or retained in a machine-readable format.

The CMA therefore argues that a coordinated approach to procurement data collection is necessary if systematic bid rigging screening is to take place across the public sector.

Recommendations on bid rigging

The CMA recommends three immediate actions:

Make bid rigging an explicit procurement priority.

The prevention, detection and deterrence of bid rigging should be expressly recognised within the national procurement policy statement and related procurement guidance.

Expand screening capability

The CMA recommends building on current departmental pilots and establishing a mechanism for screening procurement data across central government and the wider public sector.

To facilitate this, the report recommends collecting and retaining bid-level data, including unsuccessful bids, in a machine-readable format capable of large-scale analysis.

Monitor implementation

The CMA recommends monitoring implementation by tracking matters such as screening coverage, referrals, investigations, analytical leads and demonstrable savings, while avoiding disclosure of information that could allow suppliers to evade detection.

Practical implications

The CMA’s proposals signal a continued focus on competition compliance in public procurement.

For contracting authorities, the report highlights the importance of procurement data collection and coordination, with a particular emphasis on retaining information that can be used to detect and investigate bid-rigging risks.

Key actions for suppliers to the public sector

Suppliers to the public sector should be aware of the increasing use of data analytics and AI to identify potentially collusive behaviour

To reduce competition law risk, such suppliers should consider:

Reviewing bid preparation processes
Refreshing competition law training
Documenting independent pricing decisions
Monitoring contacts with competitors
Preserving records supporting tender decisions

Our observations

While many of the CMA’s recommendations are directed at government, the report signals a clear expectation that data-driven bid-rigging detection will become an increasingly important feature of public procurement. Measures relating to the retention and analysis of bid-level data could be implemented relatively quickly and may increase the likelihood of suspicious bidding patterns being identified. Suppliers participating regularly in public tenders should therefore review competition law compliance procedures and ensure that tendering decisions are demonstrably independent.

What happens next

While the CMA’s recommendations do not currently create new legal obligations, the government’s willingness to adopt them will be important. Measures relating to data collection and bid screening could potentially be implemented relatively quickly, whereas broader procurement reform may require more significant policy changes. Whether these recommendations are reflected in future procurement policy will be an important indicator of the government’s appetite for more data-driven competition enforcement in public procurement.

A new strategy against money laundering

Thu, 24 Sep 2026 11:02:46 +00:00

The UK’s first anti-money laundering (AML) and asset recovery strategy sets out an ambitious reform of supervision, financial intelligence and the recovery of criminal assets.

Published on 15 September 2026, the UK’s first AML and asset recovery strategy marks a shift away from volume-based, process-heavy compliance toward a more targeted model focused on intelligence, disruption and recovery of criminal assets.

The strategy sets out how, in the next three years, the UK intends to respond to money laundering and recover more criminal assets. It is built around three key objectives: (1) making the UK’s defences more effective and efficient; (2) disrupting money laundering networks and (3) recovering more criminal assets. The strategy is backed by significant investment, including at least £550 million and more than 500 additional officers. The government’s stated objective is to make the UK a harder place for criminals to hide, move and benefit from illicit funds.

The practical takeaway is that firms should expect more intelligence-led supervision, more focus on effectiveness rather than documentation and greater scrutiny of whether AML controls identify and disrupt high-harm activity. The strategy also points toward future changes in the Money Laundering Regulations (MLRs), discrepancy reporting, Suspicious Activity Reports (SARs), digital ID, Companies House data, crypto-asset controls and supervision of professional services. Much will depend on forthcoming consultations and legislation, but firms have a clear indication of where policy is heading.

We outline the key messages from the strategy below:

A shift away from “box-ticking” compliance

A central theme of the strategy is reducing low-value AML activity and allowing firms to focus resources on genuinely suspicious and higher-risk activity. The government expressly refers to cutting back low-value “box ticking” work, and says that it will consult on further changes to the MLRs to reduce unnecessary burdens while maintaining a Financial Action Task Force (FATF)-compliance regime. As part of the review, the government will consider whether to raise the suspicion threshold to a standard such as “reasonable grounds to suspect” and consult on further changes to make the MLRs more proportionate. Digital identity and artificial intelligence (AI) are expected to play a greater role in customer due diligence and transaction monitoring.

In 2026/2027, the Financial Conduct Authority (FCA) is expected to publish examples of good and poor practice in the use of AI and update its Financial Crime Guide. His Majesty’s Revenue and Customs (HMRC) and the Gambling Commission are likewise expected to encourage controls tailored to risk. Firms should review whether their procedures identify and address meaningful risks, while recognising that the strategy itself does not relax existing legal obligations.

Supervisory consolidation

The strategy confirms major reform in AML supervision. Responsibility for AML supervision currently rests with 25 supervisors: three public authorities and 22 professional bodies. In October 2025, the government decided to consolidate supervision of legal, accountancy and trust and company services under the Financial Conduct Authority (FCA). The result is to reduce AML supervisors from 25 to 3: the FCA, HM Revenue and Customs (HMRC), and the Gambling Commission. The FCA is set to become the single supervisor for professional services, while HMRC and the Gambling Commission will retain responsibility for the remaining sectors. The aim is to move away from a fragmented supervisory model to a more coherent, risk-based and intelligence-led system.

The transfer of supervisory responsibility to the FCA will require both primary and secondary legislation. The delivery plan envisages a phased transition in 2028/2029, with existing supervisors remaining responsible until firms move across to the FCA. His Majesty’s Treasury (HM Treasury)’s framework provides for FCA registration, broader fitness and propriety checks for beneficial owners, officers and managers, and fees to recover the cost of supervision. Existing checks may be used where appropriate to avoid duplication. Professional services firms should begin assessing the practical implications for their governance, registration and compliance budgets, while continuing to meet their current supervisors’ requirements.¹

Extension of the regulatory perimeter

A consultation planned for 2026/2027 will consider extending the MLRs to property developers, offshore virtual asset service providers, antiques and antiquities dealers, football clubs and agents and donation-based crowdfunding. It will also examine the treatment of letting agents and high-value dealers. Inclusion is conditional on evidence that the MLRs are an effective and proportionate response to the risks involved.

The strategy also addresses reputation laundering: the use of professional services or respected institutions to lend legitimacy to people with suspect wealth. The UK’s anti-corruption strategy identifies a role for public relations firms even where they do not move money themselves. The proposed response includes a voluntary charter for sectors outside the MLRs, intended to improve how institutions recognise and manage these risks. This does not, in itself, bring Public Relations firms within AML supervision.

Stronger enforcement powers

HM Treasury plans to consult in 2026/2027 on wider powers to conduct unannounced visits to regulated businesses, search their premises for cash and hold directors personally accountable for MLR breaches. The proposals would also give the Gambling Commission direct powers to enforce the MLRs, which it currently enforces through the Gambling Act 2005. A further review will consider which authorities should be able to prosecute MLR offenses, including whether that role should extend to the Insolvency Service.

Corporate transparency

The strategy links AML reform to Companies House reform and improved asset ownership transparency. Companies House reforms include mandatory identify verification for new directors and persons with significant control. The government has also launched an asset ownership review to identify vulnerabilities and gaps that may be exploited by criminals and bad actors.

Faster identification of bank accounts

Investigators still lack a consistent means of establishing where a suspect holds accounts. A bank account portal is one option under consideration: it would allow authorised users to identify whether an account exists and which institution holds it, using basic account identifiers. It would not provide transaction data. The government will assess the available options and the safeguards they require, including the implications of any reduction in judicial oversight. The strategy does not commit to a final design.

Asset recovery

The strategy pairs further reform of asset recovery law with additional investigators, lawyers and forensic accountants, including greater capacity at the National Crime Agency (NCA) and the Crown Prosecution Service (CPS). Building on the confiscation reforms in the Crime and Policing Act 2026, the Home Office plans to consult on further powers in 2026/2027. Proposed changes include extending civil seizure and forfeiture provisions to vehicles and high-value clothing and accessories. The government also intends to make crypto-asset recovery powers easier to update and strengthen its ability to recover assets held on overseas exchanges.²

Action against professional enablers

For law firms, these proposals sit alongside established professional and statutory duties. In England and Wales, the compliance officer for legal practice must take reasonable steps to ensure the firm’s compliance and promptly report matters reasonably believed capable of amounting to a serious regulatory breach. The MLRs impose separate requirements for internal reporting and, where appropriate to the business’s size and nature, senior responsibility for compliance. Following the transfer, the Solicitors Regulation Authority would retain its conduct role while the FCA assumed AML supervision.³

The strategy seeks to strengthen enforcement against professionals whose services facilitate criminal activity. It provides additional operational support for the professional enablers coordinator within the National Economic Crime Centre (NECC), improving the coordination and prioritisation of law enforcement work.

More significantly, the Home Office will consult in 2026/2027 on a possible power for the home secretary to act against the most harmful professional enablers, including where existing criminal thresholds may not be met. The focus is on those linked to hostile states, designated state or state-linked organisations and corrupt elites who directly threaten UK national security. Options include restricting an individual’s ability to provide particular services or practice a profession. The scope and safeguards remain to be settled. For the legal profession, the consultation will raise important questions about the evidential threshold, rights of challenge, professional independence and legal privilege.⁴

Outlook

The immediate priority is the consultation program. Reviews of the regulated sectors, enforcement powers, proportionality, asset recovery and professional enablers are planned for 2026/2027. Responses and legislation are expected to follow, with the main supervisory transition envisaged for 2028/2029. Those dates remain subject to the legislative process and the outcome of consultation. Businesses should identify which proposals affect them and contribute practical evidence while the detail remains open. Law and accountancy firms should prepare for FCA registration, suitability assessments and fees. Sectors that may enter the regime should assess the likely demands of customer due diligence, record-keeping and internal reporting. Across the regulated sector, firms should be able to explain how their controls address their actual risks. Those advising foreign states or politically exposed clients should also follow the professional enablers proposals closely; the potential consequences may extend to an individual’s ability to continue practicing.

How can we help?

Squire Patton Boggs advises banks, professional services firms and corporate groups on UK, EU and US anti-money laundering, counter-terrorist financing and sanctions requirements. We assist with consultation responses, ownership and control assessments, risk-based due diligence, transaction monitoring, sanctions screening and more. To discuss the implications for your business, please contact a member of the team below.

1 “Anti-Money Laundering/Counter Terrorist Financing (AML/CTF) Supervision Reform: Duties, Powers, and Accountability, Consultation Response” (June 2026), HM Treasury, 8–9, 12, 15–16, 39–44.

2 “Anti-Money Laundering Strategy”, Home Office and HM Treasury, 35–44, 55, 68–72; “UK Anti-Corruption Strategy 2025”, Home Office, CP 1454 (2025), paras. 47–50 and n. 54.

3 “SRA Code of Conduct for Firms,” Solicitors Regulation Authority (SRA), rules 3.9–3.10, 9.1; Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, SI 2017/692, reg. 21.

4 “Anti-Money Laundering Strategy”, Home Office and HM Treasury, 66–67, paras. 139–141; annex A, actions 5, 9, 11, 16, 37–38, 44.

Sanctions by statute: The Graham Act and tariffs on Russia’s energy buyers

Thu, 24 Sep 2026 09:00:00 +00:00

The Graham Act places much of the US sanctions regime against Russia on an express statutory footing and exposes some of Russia’s largest energy customers to tariffs of up to 100%.

US President Donald J. Trump signed the Lindsey O. Graham Sanctioning Russia and Iran Act of 2026 (the Graham Act) on September 18, 2026, following votes of 86–11 in the Senate and 262–159 in the House of Representatives. The Graham Act requires a series of measures within 30 days and gives the US president explicit authority to impose tariffs on Russian goods and on imports from certain countries that buy Russian energy or facilitate sanctions evasion. For businesses, its significance extends beyond Russia: exports to the US from China and several EU member states could fall within its scope. Much will depend on how the administration exercises its discretion, but the principal Russia provisions are now set to remain in force for five years.¹

Background

The legislation began with the Sanctioning Russia Act of 2025, introduced by Sens. Lindsey Graham and Richard Blumenthal in April 2025, and eventually supported by 84 co-sponsors. That proposal would have imposed tariffs of at least 500% on goods from countries purchasing Russian oil, gas, uranium or petroleum products, subject to a single 180-day waiver. Despite its support in Congress, it stalled amid White House resistance.

The administration initially pursued its own approach. In August 2025, President Trump invoked the International Emergency Economic Powers Act (IEEPA) to impose an additional 25% tariff on India over its purchases of Russian crude. He withdrew that duty on 6 February 2026, after India committed to stop those purchases. Two weeks later, the Supreme Court held in Learning Resources v. Trump that IEEPA did not authorize tariffs, underscoring the need for an express statutory basis.

Graham announced an agreement with the White House in July 2026, shortly before his death. The revised legislation, renamed in his honor, replaced the proposed 500% minimum with a 100% ceiling for secondary tariffs, narrowed the countries potentially affected and introduced a broad presidential waiver. At the White House’s request, it also extended the Iran Sanctions Act of 1996 for five years. To satisfy the constitutional requirement that revenue bills originate in the House, the Senate inserted the measure into H.R. 5334, a House-passed bill on teachers’ classroom expenses and approved it on August 7. The House agreed on September 16, although many Democrats remained concerned about the additional tariff powers. President Trump signed the Graham Act two days later.²

What the Graham Act contains

By October 18, 2026, President Trump must make the initial determinations and impose the sanctions required by the Graham Act. Its targets include Russia’s president and prime minister, senior ministers, military and intelligence chiefs and leaders of the Yamal and Arctic liquified natural gas (LNG) projects. It also reaches foreign persons who knowingly support Russia’s defense industry and vessels involved in transporting certain commodities to, or for Russian parties. Vessels already sanctioned by UK, EU, G7 and other US allies may be targeted first, as such non-US sanctions will be treated as prima facie evidence that vessels meet the Graham Act’s criteria for US blocking sanctions.

The shipping provisions extend considerably further than the “shadow fleet.” They also authorize blocking sanctions on non-US vessels, owners, operators, managers, officers and insurers that knowingly carry certain Russian-origin commodities, including oil, gas and coal, regardless of the price paid, and port owners or operators that allow vessels sanctioned for supporting Russia to dock or receive services. Non-US persons who knowingly sell or otherwise transfer to Russia, or make available for use by a Russian person, vessels designed to transport the specified energy products may also be sanctioned. The Graham Act’s definition of knowledge includes what a person should have known, making the quality of due diligence particularly important.

The financial measures require sanctions on Sberbank, VTB, Gazprombank and other banks wholly or partly owned by the Russian state, as well as at least two categories of sanctions on the Bank of Russia. Foreign banks conducting significant transactions with the specified Russian banks are also exposed, subject to an exception administered by the US Department of the Treasury. The ban on US persons purchasing Russian sovereign debt took effect on enactment. Further restrictions, due within 30 days, cover new US investment in Russia and its energy sector, certain transfers involving the Russian government and the listing of Russian state-affiliated companies on US exchanges. The principal sanctions review must be repeated every 180 days.³

The tariffs

Section 112 requires the president, within 30 days of enactment, to increase duties on Russian goods to a rate of up to 500%, in addition to existing duties. Its immediate commercial reach is limited by the contraction in bilateral trade: US goods imports from Russia fell from US$29.6 billion in 2021 to US$3.8 billion in 2025. Existing prohibitions, including the 2022 ban on Russian oil imports, continue to apply.

Section 113 has much wider implications. It provides for additional duties of up to 100% on all goods from countries among the five largest importers of Russian crude oil or natural gas during the 12 months before enactment, if they knowingly make new purchases on or after October 18, 2026. It separately covers the five countries providing the most assistance with Russian oil sanctions evasion. China, India, Turkey and EU member states are among the economies whose exports could be affected, depending on the official lists and statutory exceptions. The potential exposure extends across a country’s exports to the US, regardless of whether the goods themselves have any connection to Russian energy.

Although the Graham Act directs the president to increase duties, it specifies no numerical minimum for the initial rate. Subsequent rates set by the US trade representative must remain above zero and no higher than 100%, following a determination submitted to Congress that the country has taken significant steps to increase or reduce the specified energy transactions. The oil and gas importer lists must be reassessed every 180 days, and Congress must receive 10 days’ notice of a duty or adjustment, together with the rationale and methodology.

There are two important limits. A country may qualify for the gas exception if its imports account for less than 15% of Russia’s total natural gas exports, and it has taken significant steps to reduce them. There is no equivalent exception for crude oil. The Graham Act also expressly excludes tariff authority over countries outside its specified categories. Separately, the president’s national-interest waiver extends to duties, leaving considerable room for negotiation over their application.⁴

Exposure

Several EU member states could be affected. Senate aides cited in July reporting identified China, India, Slovakia, Hungary and Azerbaijan as the five largest buyers of Russian crude, and China, France, Japan, Hungary and Belgium as the leading gas buyers. Other assessments place Turkey among the largest crude importers. These are indicative assessments, rather than official determinations under the Graham Act, but they illustrate why European businesses need to follow its implementation closely.

Hungary and Slovakia continue to receive Russian crude through the Druzhba pipeline under an exception to the EU’s oil embargo. The EU also remained a substantial buyer of Russian LNG this summer, accounting for 49% of exports, principally through French, Belgian and Spanish ports. Yet European law already provides for a progressive withdrawal. Regulation (EU) 2026/261 prohibits Russian LNG under long-term contracts from January 1, 2027, and generally ends long-term pipeline gas imports on September 30, 2027, with a possible extension to November 1 where a member state risks missing its gas-storage target.

Questions remain over whether the EU may be treated as a single country, and when purchases by private companies can be attributed to a state. As the Congressional Research Service has observed, the statutory language leaves these issues open. Substantial additional duties on individual member states would also strain the tariff arrangements agreed between Washington and Brussels in August 2025.⁵

China’s exposure extends across both crude oil and natural gas. In August 2026, it purchased €5.8 billion of Russian crude and approximately €1.5 billion of Russian pipeline gas and LNG. These flows point to potential exposure under both energy categories in Section 113, although the official assessment must cover the statutory 12-month period.

Relief under the gas exception would not remove separate exposure arising from crude purchases. With US goods imports from China totaling US$308.7 billion in 2025, the commercial stakes extend well beyond energy: additional duties could reach Chinese goods across the US market.⁶

India’s exposure is concentrated in crude oil. Its Russian crude purchases totaled €4.1 billion in August 2026, accounting for 87% of its Russian fossil fuel purchases, despite a 24% decline in crude import volumes from July. That monthly reduction does not remove the risk under Section 113, and there is no crude-oil equivalent to the gas exception. US goods imports from India totaled US$103.8 billion in 2025, roughly one-third of the Chinese total. The absolute value of trade potentially affected is therefore smaller, but the duties could still reach Indian exporters with no involvement in Russian energy transactions⁷

Outlook

The first implementation deadline is October 18, but enactment does not impose the maximum tariffs itself. The White House’s brief signing announcement offered no indication of the rates it intends to set or the waivers it may grant. Those decisions will test how the administration balances pressure on Russia against relations with its major energy customers, including China, whose President Xi Jinping is due in Washington on September 24.

India’s experience illustrates the difficulty. Its February commitment to stop Russian oil purchases was followed by renewed demand as the conflict with Iran disrupted supplies through the Strait of Hormuz. Washington itself temporarily authorized certain purchases of Russian cargoes already at sea. China has opposed the extraterritorial reach of the proposed measures, while India has stated that it will protect its trade and economic interests. The tariff provisions may therefore serve initially as negotiating tools, although extensive waivers could weaken their effect.⁸

Non-US businesses also face secondary sanctions: they may themselves be sanctioned for covered dealings with Russia, even where the underlying transaction does not involve a US person. Foreign banks conducting significant transactions with the specified Russian banks risk asset blocking and restrictions on access to the US financial system, subject to the statutory treasury exception. Non-US companies may also be targeted for knowingly supplying Russia’s defense industry, undertaking covered vessel transfers or supporting the maintenance or expansion of Russian energy production for use by persons sanctioned under Sections 102 or 103. These risks arise separately from the country-level tariffs.⁹

For businesses, the practical task is to identify exposure before implementing measures are announced. Companies should review their Russian investments, shipping arrangements and banking relationships against the statutory restrictions, including their exposure to secondary sanctions through counterparties and the activities they support. Exporters in countries potentially covered by Section 113 should assess the effect of additional duties of up to 100% across their US sales and review contractual responsibility for those costs. The Graham Act strengthens the legal basis for sanctions, but its commercial impact will depend on the administration’s choices in the weeks ahead.

How we can help

Our International Trade & Foreign Investment Practice advises businesses, financial institutions and boards on US, EU and UK sanctions and related tariff measures. We can help assess exposure under the Graham Act, review counterparties, vessels and banking relationships, and advise on compliance measures, available exceptions, wind-down arrangements and divestments. We also assist exporters in evaluating tariff scenarios and their contractual implications. To discuss how the Graham Act may affect your business, please contact a member of the team below or your usual firm contact.

¹^{Lindsey O. Graham Sanctioning Russia and Iran Act of 2026}^{, H.R. 5334, 119th Cong. (2026) (enrolled bill); The White House,}^{“Congressional Bill H.R. 5334 Signed into Law,”}^{September 18, 2026;}^{“US Congress Passes Sweeping Russia Sanctions Bill, Sends It to Trump,”}^{RFE/RL, September 16, 2026.}²^{Sanctioning Russia Act of 2025}^{, S. 1241, 119th Cong. § 17 (2025); Executive Order 14384 of February 6, 2026,}^{“Modifying Duties To Address Threats to the United States by the Government of the Russian Federation,”}^{Federal Register, February 11, 2026; House Committee on Rules,}^{“Senate Amendment to H.R. 5334 – Lindsey O. Graham Sanctioning Russia and Iran Act of 2026,”}^{H. Res. 1530, September 15, 2026.}³^{Graham Act}^{, §§ 101(8), 102–111, especially § 102(b)(4)(D).}⁴^{Graham Act, §§ 112, 113, and 115; U.S. Census Bureau,}^{“Trade in Goods with Russia,”}^{Foreign Trade Division.}⁵^{The White House,}^{“Joint Statement on a United States-European Union Framework on an Agreement on Reciprocal, Fair, and Balanced Trade,”}^{August 21, 2025; Congressional Research Service, “Tariff Authorities,” LSB11474.}⁶^{Luke Wickenden and Isaac Levi,}^{“August 2026: Monthly Analysis of Russian Fossil Fuel Exports and Sanctions,”}^{Centre for Research on Energy and Clean Air, September 10, 2026, updated September 17, 2026; Office of the United States Trade Representative,}^{“The People’s Republic of China,”}^{accessed September 21, 2026;}^{Graham Act}^{, § 113(a), (c), and (d).}
⁷^{Wickenden and Levi,}^{“August 2026”}^{; Office of the United States Trade Representative, “India,” accessed September 21, 2026; Graham Act, § 113(a), (c) and (d).}
⁸^{Foreign Assets Control,}^{“Issuance of Russia-related General License 133,”}^{March 5, 2026.}
⁹^{Graham Act}^{, §§ 102(b)(2), 102(b)(4), 102(e), 103(a), 103(c)–(d), and 108(b).}

Pensions Weekly Update: 22 September 2026

Tue, 22 Sep 2026 10:47:51 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

New regulations will bring into force provisions of the Data (Use and Access) Act 2025, which provide for the transfer of the functions, rights, liabilities and property of the information commissioner to a new Information Commission. The transfer is due to take effect on 30 September 2026. The post of information commissioner will be abolished from that date. These changes will mean that references to the information commissioner in privacy notices and other scheme documentation will be out of date. The current Information Commissioner’s Office (ICO) has confirmed that during the transition period it remains focused on ensuring a smooth transition and continuity of service for customers and stakeholders.
The first prosecutions for failing to carry out identity verification with Companies House have been brought against three company directors. The directors were convicted and fined following action brought by the Insolvency Service. It should be noted that one of the directors had correctly verified their identity, but they were still convicted because a co-director had not verified their identity and they had allowed that co-director to continue acting as a director of the company. If your pension scheme has a corporate trustee, the trustee directors will need to complete an identity verification process before the trustee company is able to submit its annual confirmation statement. While most trustee directors will have now completed this process, for those who have not yet done so, they can check their hard deadline by searching against their name on the Companies House website. If a person is a director of more than one company, they will need to complete their identity verification before the earliest date shown. More information on verifying a director’s identity can be found in this Companies House publication.
The Work and Pensions Committee (WPC) has launched an inquiry into pensions adequacy and automatic enrolment contributions for low earners and their employers. The call for evidence includes questions around the extent to which minimum contributions should increase, how any increase should be shared between the employee and employer and whether there is a case for reducing or removing the lower earnings limit on contributions and/or the earnings trigger for automatic enrolment. The call for evidence closes at 4 p.m. on 26 October 2026.
The Pensions Regulator (TPR) has published a market oversight report on UK pension funds and private market investment. TPR asked more than 40 key stakeholders about market opportunities, available investment vehicles, limitations, barriers, enablers and appetite of private sector defined benefit (DB) and defined contribution (DC) pension schemes for private market investments. The report found that while trustees of occupational pension schemes are generally open to UK private market investment, trustees of DB schemes are less likely to invest further in private markets. The reasons include the lack of need for growth assets (in relation to well-funded schemes that are locking down risk), the illiquid nature of private market investments (which reduces endgame flexibility) and some open and immature schemes already hold material allocations to private market investments. Trustees’ fiduciary duties were cited as a factor that prevented schemes from making a firm commitment to a certain proportion of assets allocated to private market investment. The report notes that industry appetite for venture capital is limited. There is greater appetite for investment in private equity, private debt/credit, infrastructure and property/real estate. The need for a strong pipeline of high-quality investible opportunities, and fund structures which help facilitate such investments, is highlighted in the report. The report also sets out some actions for trustees.
The EU has invited Canada to become its first “associate member”. In this insight, we look at what this could mean.

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

Mining and the global supply chain: The sulphuric acid crisis

Mon, 21 Sep 2026 11:14:15 +00:00

China has permitted its first outbound shipment of sulphuric acid since May, despite wider export restrictions remaining in place.¹ The 32,000 tons shipment, which left Nanjing for Chile, is a small fraction of the approximately four million metric tonnes of sulphuric acid that Chile annually imports, and it is unclear whether further shipments will follow.²

Sulphuric acid is essential to the production of copper, lithium, nickel, cobalt and uranium.

The restriction of China’s exports of sulphuric acid since May, is part of a wave of global protectionism that has arisen out of the ongoing Middle East conflict. Prior to the conflict, the Middle East accounted for one third of global sulphur production. Half of the world’s seaborne sulphur trade transited through the Strait of Hormuz. Since then:

7 April 2026, Turkey imposes export restrictions on sulphur exports
1 May 2026, China, producer of more than 40% of the world’s sulphuric acid, introduces restrictions on most exports to protect domestic supply
31 May 2026, Russia extends its own sulphur export ban through June 2026

The commercial effect is significant. Chile’s CFR Mejillones spot prices doubled in under seven weeks, from US$190 per metric ton on 25 February 2026, to US$380 per metric ton by 15 April 2026.³

Sulphuric acid’s share of hard-rock lithium processing costs has reportedly increased from around 3% to 11%, while sulphur’s share of costs in certain nickel operations has risen from 26% to approximately 42%.⁴ Some refiners have already reduced production because of limited physical supply.⁵

From a legal perspective, the below contractual considerations may be relevant when considering who will bear the immediate additional cost and supply risk of the ongoing export bans.

Force majeure

Under English law, force majeure can only be relied upon where expressly provided for in the contract. Often the clauses extend to government or export bans or embargoes, which depending on the wording of the clause, may be of relevance to the current sulphuric acid export restrictions.

When reviewing the force majeure clause, the following questions should be considered:

Does the event fall within the categories set out under the clause?
Was the event causative?
Has the threshold (delayed, prevented or hindered etc.) been met for relief?
Could the event or impact of the event be avoided or mitigated?
Are there notice provisions, and have they been met?
What are the consequences of relying on the force majeure clause?

This last question is important. Invoking force majeure does not simply exclude a party’s liability – it may trigger rights, such as:

Termination rights after prolonged nonperformance
Suspension of exclusivity or supply commitments
Obligations to implement contingency measures

The short-term benefit of force majeure may therefore be outweighed by the long-term contractual or commercial risks. Parties must consider whether invoking force majeure could inadvertently give a counterparty a strategic advantage. For example, a supplier may rely on a force majeure clause to evade the immediate repercussions of their inability to supply, but could find itself permitting the buyer to exit an otherwise profitable long-term agreement.

It should also be noted that force majeure relates to unforeseeable events, which are not in contemplation when the parties contracted, therefore for contracts recently entered into, the ability to rely on force majeure for sulphuric acid export bans/government restrictions, may become much more difficult.

Price adjustment or indexation provisions

Parties to long-term supply agreements may link the contract price to a published benchmark, that reflects how they allocated the risk of market movements. These clauses may therefore be of assistance where there is considerable price volatility. Depending on the wording of the clause, parties should consider:

Are prices tied to a specific benchmark or third-party assessment process?
Does the clause contain a cap, floor or threshold before being triggered?

Hardship clauses

Hardship clauses seek to protect parties against the risk of hardship caused by unforeseen changes that impact the economic equilibrium of the contract. Such clauses have been described as the “ultimate safety net” or “manual override”. Once triggered, they typically permit renegotiation or arbitration to adjust the contract terms to alleviate the hardship, or termination if such adjustment cannot be agreed or accommodated.

Under English law, the meaning of “hardship” will depend on the terms of the particular clause. The initial questions will be:

What is the definition of hardship under the clause?
Is the clause linked to any assumptions?
Are there any exclusions?
Does the clause need to be triggered, and if so, are there notice provisions?
What are the consequences, negotiation, arbitration and/or termination?
What are the continuing performance obligations?

Looking across the contractual chain

The immediate supply agreement should not be reviewed in isolation. A shortage may also affect offtake agreements, mineral sales contracts, financing documents, joint venture arrangements and project delivery obligations.

The same event may have different consequences under each agreement. A miner might receive force majeure relief from a supplier, but remain liable to its offtakers or purchasers for any resulting failure to supply contracted volumes. Equally, a temporary shortage may not justify terminating a commercial contract, but could affect production commitments, delivery obligations, financial covenants or access to further funding.

Businesses should therefore assess their position across the contractual chain and ensure that statements made to suppliers are consistent with those made to offtakers, purchasers, lenders, insurers and other project counterparties.

Practical steps

Review the contractual risk allocation – This includes reviewing the events covered by force majeure, the applicable causation threshold and any hardship, price adjustment, termination or dispute resolution provisions.
Check the notice requirements – This includes when it must be given, how it must be served and what information it must contain.
Comply with any reasonable endeavours or mitigation requirement – Investigate alternative suppliers, sources, products and shipping routes, as well as recording why any option was not commercially or operationally viable.
Preserve evidence of causation and impact – This includes government measures, supplier communications, shipping data and operational records.
Assess the wider contractual chain – Particularly assess customer and offtake contracts, financing arrangements and insurance policies, where the same event may have different legal consequences.
Engage counterparties early, while preserving existing rights – Explore temporary pricing, revised volumes, deferred deliveries or alternative sourcing arrangements, as well as considering any consequences of invoking formal relief.

A commercial response

The recent shipment from China shows that market conditions can change quickly. If your business is preparing to issue a force majeure notice, or if you need to review your price adjustment clauses to manage the price volatility or simply want to consider what options may be available, we would be happy to assist.

1 “China Ships Out First Sulfuric Acid Cargo Since Halt on Exports”, Julian Luk, Bloomberg, September 2026.

2 “China’s Sulfuric Acid Restrictions Set to Squeeze Miners”, Kip Keen, S&P Global, April 2026.

3 “No Quick Sulfuric Acid Fix for Chilean Copper Sector: Analysts”, Kip Keen, S&P Global, April 2026.

4 “What the Sulphuric Acid Supply Crunch Means for Critical Minerals”, Matthew Bird, Benchmark Minerals, May 2026.

5 Ibid.

EU invites Canada to become its first “associate member”

Fri, 18 Sep 2026 14:28:26 +00:00

On 16 September 2026, European Commission President Ursula von der Leyen invited Canada to work towards becoming the EU’s first “associate member”. Up until now, EU law has not contemplated such a status, nor has either side yet defined what it would mean.

As a matter of fact, the concept is absent from the EU’s treaties. Canada has welcomed a closer alliance, while stressing that it is not seeking EU membership. The US has warned that it could impose tariffs on the EU if it views the initiative as hostile, while EU Parliament President Roberta Metsola has suggested that Australia and New Zealand might eventually pursue similar arrangements.¹

Background

The initiative comes after US-Canada trade talks broke down in late August. Canada has accused Washington DC of seeking concessions on French-language protections. The US then imposed tariffs of up to 50% on Canadian cars and trucks, and later extended measures to certain steel products. Canada responded with tariffs on a range of US imports.

Reports from the 12 and 13 September said that Prime Minister Mark Carney was exploring a new form of association with the EU and that European officials were open to the idea. Discussions reportedly covered freer movement of goods, services and workers in strategic supply chains, as well as joint undersea cables, data centres and satellite networks. They also included the possibility of visa-free residence and work for Canadians in the EU. Carney has nevertheless described Canada’s objective as a “unique alliance”, not EU membership. Canadian officials have likewise said that Ottawa did not propose the “associate member” label and expects the Montreal summit to clarify the relationship.

With Prime Minister Carney present in the chamber, President Von der Leyen formalised the invitation in her state of the union address. She called for the parties to move beyond the Comprehensive Economic and Trade Agreement (CETA) and build an “alliance for the future” centred on prosperity and economic security. Canada welcomed the proposal to deepen the relationship, but again stopped short of adopting the associate member label. Jonathan Wilkinson, Canada’s incoming ambassador to the EU, has similarly said that the parties have not yet settled on a name for the relationship.²

Scope of the proposed relationship

President Von der Leyen identified manufacturing, technology, defence production, Arctic cooperation, energy, critical minerals and batteries, artificial intelligence (AI), quantum technology, cybersecurity and economic security as possible areas for closer cooperation. Canada is also in early talks to join Erasmus+, and to secure mutual recognition of professional qualifications. It would be the first non-European country to join Erasmus+.

The proposal would build on an already substantial relationship. CETA has applied provisionally since 2017, although 10 EU member states, including France, Italy and Poland, have not ratified it. Canada already participates in Pillar II of Horizon Europe. It also signed an EU-Canada Security and Defence Partnership in June 2025, and became the first non-European participant in Security Action for Europe (SAFE), the EU’s €150 billion defence loan programme. SAFE already allows Canadian companies to supply some of the capabilities bought by member states with programme funding. That existing network matters because the parties could deepen cooperation step-by-step without first creating an entirely new legal category.³

Legal framework

As the treaties currently stand, Canada cannot join the EU. Article 49 of the Treaty on the European Union (TEU) limits membership to European states. Creating true membership for Canada would therefore require a fundamental change to the EU treaties. Likewise, the treaties do not provide for associate membership.

Canada’s accession to the EU then would possibly amount to formal association. Article 217 of the Treaty on the Functioning of the EU (TFEU) allows the bloc to conclude agreements with third countries, creating thereby reciprocal rights and obligations, common actions and special procedures. The provision is broad enough to support close economic, security and institutional cooperation without making the partner an EU member state. Article 8 TEU has also been mentioned, but it concerns the EU’s relations with neighbouring countries and is therefore a less obvious basis for Canada.

The procedure could be lengthy. Under Article 218 TFEU, the European Council would first authorise negotiations and later conclude the agreement. An association agreement requires unanimous approval in the council and the consent of the European Parliament. If the deal also covers matters that belong partly to the member states, national ratification would be required as well.

Association would not give Canada a vote in EU institutions. Existing arrangements generally exchange access for compliance with EU rules in the areas that they cover. Representatives of partner countries may take part in meetings or joint bodies, but that is distinct from participating in EU decision-making as a member state and enjoying the rights bestowed upon them. A customs union also appears difficult because applying the EU’s common external tariff would sit uneasily with Canada’s trade commitments in North America.

The phrase “associate member” could therefore describe very different outcomes. At one end, the EU could widen Canada’s participation in programmes such as Horizon Europe, SAFE and Erasmus+, with limited effects on Canadian domestic law. At the other, a broader treaty could give Canada access to parts of the single market in return for following EU rules in those sectors, overseen by joint institutions. Norway’s relationship through the European Economic Area and Switzerland’s network of agreements show how extensive such arrangements can become. Neither Brussels nor Ottawa has yet said how far it wants to go, and the eventual substance will matter far more than the label.⁴

Reactions

In the US, President Donald J. Trump has objected publicly to the proposal. On 16 September, he called it “laughable” and said Washington DC would impose serious tariffs on the EU, or halt trade in many products, if it regarded the initiative as hostile. He also signed a memorandum directing federal procurement agencies to remove Canadian-origin products, although a White House official said that measure was unrelated to the EU proposal. The European Commission has maintained that the initiative is not directed against any third country.

Within the EU, Trade Commissioner Maroš Šefčovič presented the offer as a sign of solidarity with Canada, and Ireland, which holds the council presidency, endorsed the initiative. France said it would examine the proposal before taking a position. The German government has reportedly questioned the “associate member” label, while remaining open to new forms of partnership.

In Canada, the conservative opposition has warned against accepting EU laws, taxes or immigration rules, and opposition parties have called for parliamentary approval before the government proceeds. An Abacus Data survey conducted from 4 to 9 September found 81% support for closer integration with the EU and 49% support for full membership.⁵

Australia and other partners

No EU leader has made Australia an equivalent offer. On 17 September, however, Metsola said that Australia and New Zealand could eventually follow Canada, while stressing that discussions remain at an early stage. Australian Trade Minister Don Farrell had said two days earlier that Canberra was “on the same page” as Ottawa on closer EU ties, without defining the form that relationship might take.

Australia’s current framework with the EU is less developed than Canada’s. The parties concluded negotiations on a free trade agreement on 24 March 2026, and Australia expects signature in late 2026 or early 2027 followed by parliamentary procedures. Their Security and Defence Partnership also took effect in March 2026, and Australian entities are due to participate in Pillar II of Horizon Europe from January 2027. If the EU develops a workable status for Canada, it could therefore provide a model for other close non-European partners.⁶

Implications for business

The initiative creates no new legal obligations for businesses today. It nevertheless has immediate practical significance for companies operating across the EU, Canada and the US, particularly where their supply chains, investment decisions or regulatory obligations touch more than one of those markets.

The immediate concern is trade exposure. The US has linked possible tariffs on the EU to its view of the initiative, while USCanada trade measures are already escalating. Companies should identify where further US measures against either jurisdiction, or Canadian countermeasures against US goods, could affect their supply chains, contracts and pricing. Businesses that rely on inputs moving repeatedly across the Atlantic or the US-Canada border may face the greatest practical exposure.

Economic security could also become an important part of the relationship. Von der Leyen placed it at the centre of the proposed alliance, which could lead the parties to coordinate more closely on export controls, foreign investment reviews and sanctions, although neither side has confirmed that these subjects will form part of the talks. Companies in defence, advanced technology, critical minerals and other sensitive sectors should therefore watch any negotiating mandate for signs that the EU and Canada intend to bring their rules closer together.

The proposal may also widen market access. Closer defenceindustrial cooperation could expand opportunities for Canadian suppliers in EU procurement, while cooperation on critical minerals could support further European investment in Canadian projects. Any broader access to parts of the EU single market would probably come with an obligation to follow the relevant EU rules. For companies, the practical question will be whether the additional access justifies the cost of meeting another set of regulatory requirements.

Next steps

The next major milestone would be the EU-Canada summit in Montreal on 29 and 30 October 2026. If the parties choose a formal association agreement, the council would then need to authorise the commission to begin negotiations. Businesses should watch member state positions, any further US trade response and whether Australia or New Zealand seeks a comparable dialogue.

“Canada invited to become first “associate member” of the EU”, Euronews, 16 September 2026; “Carney to address EU Parliament after Trump says “membership possible hostile act”, Associated Press (ABC News), 17 September 2026.
“Carney pushes idea of making Canada “associate member” of EU, WSJ reports”, Reuters (The Japan Times), 14 September 2026; “Carney says Canada planning to discuss “unique alliance” with EU, but not membership”, CBC News, 14 September 2026; “European Parliament to open Ottawa office as Carney seeks “unique alliance” with EU”, CBC News, 15 September 2026.
“Mark Carney addresses EU Parliament amid “associate membership” furore”, Euronews, 17 September 2026; “Canada in talks to join EU’s Erasmus+ exchanges programme”, Euronews, 16 September 2026.
“Von der Leyen dangles associate EU membership for Canada”, TEU, arts 8 and 49; TFEU, arts 217 and 218; Borderlex, 16 September 2026; “Towards an “Associate Membership” Status for Ukraine?”, Verfassungsblog, May 2026.
“Hostile act”: Trump threatens EU with tariffs over Canada associate-membership proposal”, CNBC, 17 September 2026; “Mark Carney addresses EU Parliament amid “associate membership” furore”, Euronews, 17 September 2026; “As Carney Heads to Europe, 4 in 5 Canadians Support Closer Integration with the EU”, Abacus Data, September 2026.
“Australia and New Zealand could follow Canada into associated EU membership, Metsola tells Euronews”, Euronews, 17 September 2026; “Australia-European Union Free Trade Agreement: Next Steps”, Australian Department of Foreign Affairs and Trade, 2026; “The European Union and Australia successfully conclude Horizon Europe negotiations”, European Commission, 9 June 2026.

New 2025 CFIUS annual report to Congress

Thu, 17 Sep 2026 15:43:39 +00:00

The Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) recently released its most recent annual report to Congress for the calendar year (CY) 2025, containing anonymized and aggregated data on the CFIUS filings and cases during that year.

The report generally reinforces the historical CFIUS trend in filings and shows a steadied increase in the investigation of non-notified cases, but also had some notable deviations. This alert summarizes some of the notable data and trends in the CFIUS annual report, logically separately by the data related to the short-form declaration-type filings and data relating to the long-form (tradition) joint voluntary notices (JVNs) (a summary of the different filings and their significance is included in our CFIUS Authority and Process Overview), followed by some important observations on CFIUS investigations and enforcement actions.

2025 annual report takeaways on declaration filings

CFIUS reviewed 20% more declarations (140) in CY 2025, bringing the volume in line with 2021 and 2022 numbers. Only 116 declarations were submitted in CY 2024, which continued a 2023 trend toward less declaration filings. Declarations filed in 2023 and 2024 were significantly less than those submitted in 2021 and 2022 (164 and 154, respectively), when declaration filings were just introduced under a new law. The increase in declaration filings is likely attributed, in part, to more benign transactions (i.e., those unlikely to raise national security concerns) seeking to file with CFIUS to address the uncertainty accompanying the recent increase in scope of national security concerns, as well as an increase in mandatory filings by more trusted investors (51 of the declarations were for mandatory filings, compared with 36 from 2024).
Japan remained the leading filer of declarations in 2025, submitting 18 filings. Canada, which previously ranked second, fell to sixth place after being surpassed by France (14 declarations), Singapore (13), Germany (12), and South Korea and the UK (11). All the top countries are historic sources of foreign investment and have historically invested in “critical technology” US businesses, which are those that may implicate mandatory filing obligations.

Ranking	2025 country	2025 number of declarations filed	2024 country	2024 number of declarations filed
1	Japan	18	Japan	16
2	France	14	Canada	11
3	Singapore	13	France/UK	9
4	Germany	12	Germany	8
5	South Korea/UK	11	UAE	7

Continuation of Chinese investors rightly avoiding the declaration process. In 2025, five Chinese transactions were filed as declarations, a slight increase from the two Chinese transactions filed as declarations in both CY 2024 and 2023. This continued trend of low declaration numbers for China (PRC) demonstrates that PRC filers are aware that their chances of clearing a deal within the abbreviated CFIUS declaration process remain slim – and that the parties in PRC-related transactions are often better served by filing JVNs, as evidenced by the far higher number of JVNs filed by PRC in 2025 (see discussion in the JVN section below). Nonetheless, there may still be strategic reasons to file a declaration for PRC investors in some cases.
Material risk remains that declaration filings can prolong the process: CFIUS requested full notice filings from parties in approximately 25% of the declaration filings. Of the 140 declarations, 36 (approximately 25%) resulted in a request from CFIUS to submit a JVN filing in 2025. This indicates that a declaration filing option should not have been pursued for 25% of the cases, causing parties to incur additional resources to undergo the declaration process when it would have been more efficient to proceed directly to a notice filing. This highlights the importance of conducting an upfront CFIUS diligence assessment to properly weigh the strategic option of a declaration filing in the context of a deal, particularly deals with tight timelines.
Given the risk that CFIUS can ask for a JVN at the end of the 30-day review, declarations are best suited for only the most straightforward cases that will likely raise minimal issues to diligence by CFIUS (e.g., internal reorganizations). Some declarations are, of course, mandatory, including foreign government-controlled investments, but parties always have the option to submit a JVN in lieu of a declaration, which is commonly used because mandatory filings involve the more sensitive “TID US businesses.”
CFIUS cleared 67% of the declaration filings, indicating that it remains a viable option for straightforward cases. Despite the difficulties with government shutdowns (resulting in 120 days of lapsed funding in 2025), CFIUS impressively was able to clear over two-thirds of all declaration filings within the abbreviated 30-day review period. Note that CFIUS was “unable to conclude action” on 11 declarations in 2024 (8% of the 140 declarations filed); in 2024, the number was seven. The report does not provide statistics on the number of these transactions that were refiled as JVNs.

2025 annual report takeaways on JVN filings

Consistent number of JVNs, but similar investor countries involved. The number of JVNs filed in CY 2024, 207, continues a downward trend from 2022’s record number of 286, 2023’s number of 233, and 2024’s number of 209. PRC is at the top for filer of JVNs, with 33 in total, followed by Japan and the UAE, with 23 and 18, respectively.

	2025 country	2025 number of JVNs filed	2024 country	2024 number of JVNs filed
1	PRC	33	PRC	26
2	Japan	23	France/Japan	23
3	UAE	18	UAE	21
4	Canada	15	Singapore	14
5	Israel	12	Canada/Germany	12

Consistent with prior years, around half of all cases are going into a second-phase investigation. Of the 207 JVNs accepted for review, 114 went to investigation – roughly 55% of JVNs filings. This is consistent with historical data in this category (with an aggregate average of approximately 55%) as evidenced in the following table.
Consistent aggressive review of non-notified transactions (NNTs) (“thousands”) but material drop in official inquiries (down approximately 36%) and subsequent filings (down 25%). As in previous years, CFIUS’ NNT enforcement team reviewed and considered “thousands of potential non-notified transactions.” Of these reviews, the CFIUS NNT team put forth 62 transactions to the Committee for approval to open official inquiries compared to 98 in 2024. CFIUS’ NNT team continues to increase its efforts, year over year, in tracking down cases of interest that have not been filed, but appears to have been more selective in 2025 in those cases it put forth to the Committee for a full vote and official inquiry. Nonetheless, the volume of cases reviewed serves as a warning to transaction parties to carefully consider their exposure – even a seemingly innocuous foreign investment could raise CFIUS interest and, as such, parties should conduct appropriate CFIUS diligence.
Material drop in mitigation conditions but increase in transactions abandoned. In 15 of the 2025 JVNs, CFIUS concluded its review after adopting mitigation measures to resolve national security concerns compared to 15 cases in 2024. The report notes that 10 JVNs were withdrawn and the subject transactions abandoned, which when added to the total cases mitigated would bring the figures in line with 2024. (Note: CFIUS must agree to grant a withdrawal, and the imposition of conditions with a withdrawal is a common occurrence.) The increase in transactions that were abandoned after withdrawal could be attributable to the America First Investment Policy’s preference for mitigation agreements that have concrete achievable goals instead of open-ended obligations, and a preference away from mitigation with foreign adversary countries.
Despite similar number of filings in 2024, material increase in the number of withdrawals and refilings with CFIUS. Sixty-one of the 207 JVNs were withdrawn by the parties after commencement of a CFIUS investigation (roughly 29%), an increase from the previous year (49). There are any number of reasons why this occurs – the most common being because CFIUS or the parties need more time than the investigation period allows: In 51 of these cases, the parties resubmitted their JVNs (37 refiled in 2025, and 14 in 2026). As noted above, in 10 cases the parties withdrew their JVNs and then abandoned the transactions: seven because the parties could not agree on mitigation measures that would resolve the national security concerns, and three due to commercial reasons.

Other notable facts from the 2025 annual report

Same countries at the table. Cumulatively, investors from the top five filing jurisdictions represented approximately 35% of total filings, JVNs and declarations combined:

Top five investor country names	Number of filings (JVNs + declarations) for 2025	Percentage of total filings for 2025 (out of 347)
Japan	41 filings	11.82%
PRC	33 filings	9.51%
UAE	18 filings	5.19%
Canada	15 filings	4.32%
France	14 filings	4.03%

Steady use of presidential authority. As in 2024, there were two presidential orders issued for CFIUS-reviewed transactions in 2025:
- In June 2025, President Donald J. Trump issued a presidential order permitting Nippon Steel Corp. and United States Steel Corp. to complete their merger, originally prohibited by presidential order in January 2025, by then President Joseph R. Biden, subject to the condition that the parties enter into a national security agreement (NSA), with key terms including the parties issuing a “golden share” to the US government.
- In July 2025, President Trump imposed an ordered prohibiting Suirui International Co., Limited (China/Hong Kong) from acquiring Jupiter Systems, LLC and requiring divestment of the US business.

Conclusion

The annual report for CY 2025 is 70 pages long, and transaction parties contemplating filing with CFIUS always are well advised to coordinate with experienced CFIUS counsel when considering how the data and trends outlined within these pages may be applicable to their transactions, and when weighing the shifting national security and foreign policy priorities that may impact their risks. Each transaction presents its own challenges. As with any regulatory risk in the M&A process, diligence preparation is crucial to limiting deal risk and timing uncertainties.

For more information, please contact any of the following members of our International Trade & Foreign Investment Practice Group.

Implementation of the Employment Rights Act 2025

Thu, 17 Sep 2026 15:23:59 +00:00

With the next tranche of Employment Rights Act (ERA) 2025 reforms coming into force in October, now is the time for businesses to assess readiness and ensure that their policies, processes and management capability are aligned with the new requirements.

This update highlights the practical steps that employers should have taken (or be taking now) to prepare for the October changes. Looking further ahead, it also provides a status update on some of the most significant outstanding ERA 2025 measures to help businesses with their planning and priorities for 2027 and beyond.

Read the full insight to learn more.

Second thoughts in moderation: Involve v. DWP clarifies remoderation, technical expertise and conflict controls in public procurement

Thu, 17 Sep 2026 11:09:54 +00:00

In Involve Visual Collaboration Ltd v. Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC), O’Farrell J dismissed a challenge by an incumbent supplier whose technical score in a public procurement process fell from 7 to 1 after remoderation.

The judgment confirms that contracting authorities may reopen completed moderation exercises where there is a genuine concern that published criteria have been misapplied, provided the process remains transparent and consistent. It also provides useful guidance on the use of technical expertise during evaluation and the consequences of breaching agreed conflict-management measures.

Although decided after the Procurement Act 2023 came into force, the procurement was conducted under the legal regime applicable at the relevant time, the Public Contracts Regulations 2015.

Key takeaways

Contracting authorities may reopen moderation where there is a genuine concern that criteria were misapplied.
The reasons for reopening moderation should be clearly documented.
Technical explanations are permissible, but comparisons based on extraneous material are not.
Incumbent suppliers must comply strictly with agreed conflict-management measures.

Overview

The Department for Work and Pensions (DWP) conducted a procurement for a strategic video channels solution. Involve, the DWP’s incumbent supplier of audio-visual services, was excluded after receiving 1 out of 10 on a qualitative question, below the minimum score of 4. The DWP therefore did not evaluate Involve’s commercial proposal and awarded the contract to the successful bidder, Accenture (UK) Limited.

The DWP’s evaluation panel had initially agreed to give Involve a score of 7 out of 10 for the question concerned. One evaluator subsequently raised a concern that Involve’s proposed use of URL masking did not meet the requirement for the service to be integrated into and provided from within DWP or GOV.UK web pages.

The proposed service would look like a GOV.UK page, but would be hosted outside the DWP or GOV.UK domain. The DWP reconsidered every bidder’s response to the relevant question, after which the panel agreed to award Involve a score of 1.

Involve challenged the DWP’s decision to reopen moderation, as well as the way the second exercise was conducted and the revised score. The DWP argued that Involve would in any event have been excluded for failing to follow conflict of interest measures that had been put in place because of its incumbent position.

The High Court decision

Authorities may reopen moderation in appropriate circumstances

The High Court found that, although the invitation to tender did not contain an express remoderation procedure, this did not prevent the DWP from reopening the exercise. The transparency duty required the DWP to publish the award criteria, marking scheme and overall evaluation process. The DWP did not also have to set out every internal step by which evaluators would assess and moderate bids.

Remoderation may be appropriate in certain circumstances, such as where an evaluator identifies a possible error in applying the award criteria. Reopening simply because the contracting authority dislikes the result, on the other hand, would be arbitrary.

In this case, the DWP discarded the earlier assessments and reconsidered every response to the relevant question afresh, which helped ensure equal treatment. The court nevertheless criticised the DWP’s limited written record of how the concern had been raised and discussed internally, and how the remoderation had been approved.

Technical explanation became an impermissible comparison

During remoderation, an evaluator used screenshots and a presentation to explain the technical difference between a service provided from within DWP web pages and one using a masked URL. This was permitted because it helped the panel understand and apply the published requirement, and the explanation was relevant to all bidders.

The same evaluator also compared Involve’s proposal with the existing Attend Anywhere service. That comparison was not part of the published criteria and was made only against Involve.

This therefore crossed the line from explaining a technical point into evaluating Involve’s bid against outside material. This breached the transparency duty. However, the breach did not change the result because the permitted technical reasoning still supported a score of 1, and there was no evidence that the other evaluators were influenced by the improper comparison.

The revised score was not manifestly erroneous

Question 6.4, for which Involve scored 1 point, contained two requirements. The customer interface had to look like a GOV.UK page, and the service had to be integrated into and provided from within DWP or GOV.UK web pages. Involve’s response addressed the GOV.UK appearance requirement, but its proposed use of URL masking did not satisfy the separate hosting and integration requirement.

Alternative methods raised by Involve at trial were not set out in its tender and could not be used to repair the submitted response. The DWP was not required to clarify an already clear requirement or invite bidders to revise their bids.

The conflict measures provided a separate basis for exclusion

Because Involve was the incumbent, its access to information created a risk that it could have had an unfair advantage in the procurement of a new contract.

The DWP and Involve therefore agreed prior to the start of the procurement process that Involve’s technical lead could oversee and review its bid but could not take part in its detailed preparation. The technical lead principally drafted the response to Question 6.4 and contributed to six other technical answers. The court held that this went beyond the agreed role. Involve could not decide for itself that the measures were no longer needed. If they had become unworkable, it could have asked the DWP to revise them.

The DWP was entitled to exclude Involve for that breach and showed that it would have done so had it known the position during the procurement. The court held that Involve had not met the high threshold required to show that exclusion would have been manifestly disproportionate. Involve was therefore entitled only to a declaration recording the transparency breach. It was not entitled to damages or an order setting aside the award decision.

Practical implications

Contracting authorities

A notable feature of the judgment is the court’s criticism of the limited contemporaneous record explaining why moderation was reopened. Authorities should ensure that decisions to revisit an evaluation are documented clearly at the time.

A completed moderation may be reopened for a proper, recorded reason, particularly where the published criteria may have been applied incorrectly. The fresh process should treat bidders consistently, and contracting authorities should guard against information from later evaluation stages influencing technical judgments.

Evaluators may explain technical matters but should not assess a bid against outside material or comparisons that are not part of the published criteria.

The concern, internal discussion, decision and reasons for reopening should be recorded at the time.

Suppliers

Tender responses must contain the solution on which the supplier relies. Alternatives raised after exclusion are unlikely to assist. Incumbent suppliers should also ensure that everyone involved in the bid understands any agreed conflict controls. If those controls prove unworkable, the supplier should seek an agreed variation before departing from them.

Final thoughts

The case confirms that moderation is not necessarily a one-way process. Contracting authorities may revisit evaluation where there is a genuine concern that published criteria have been misapplied, but must document their reasoning carefully and avoid introducing extraneous considerations. Suppliers, particularly incumbents, should ensure both compliance with tender requirements and strict adherence to agreed conflict controls.

Above all, the judgment demonstrates that while authorities have flexibility to correct perceived evaluation errors, that flexibility depends on a process that is transparent, documented and applied consistently across bidders

Defective contract award notices may preserve Procurement Act set-aside claims

Thu, 17 Sep 2026 09:36:10 +00:00

In Apasen Limited v. London Borough of Tower Hamlets [2026] EWHC 2239 (TCC), the High Court refused to strike out a claim seeking the set-aside of interim domiciliary care contracts that had been awarded directly under the Procurement Act 2023, indicating that defects in a contract award notice may leave completed contracts vulnerable to set-aside claims.

In refusing a strike-out application, the court held that it was arguable that a contract award notice should be treated as unpublished if it failed to provide accurate information about the basis for a direct award. It was also arguable that the urgency justification had to appear in the contract award notice itself, rather than only in an earlier transparency notice. The ruling is preliminary and it does not decide that the contract awards were unlawful, the notice was inaccurate or the contracts must be set aside.

Why this judgment matters

Contracting authorities relying on direct award grounds should ensure that their justification is fully and accurately reflected in the contract award notice itself. Failure to do so may leave completed contracts exposed to set-aside claims. This is so even where a contract award notice has been published and a voluntary standstill period has been observed.

Overview

The contracting authority, the London Borough of Tower Hamlets, abandoned a competitive procurement for domiciliary care services after challenges by Apasen Limited (Apasen) and other tenderers. On 13 March 2025, the contracting authority published a transparency notice stating that it intended to make seven interim direct awards on grounds of “extreme and unavoidable urgency”. It published a contract award notice later that day, but that notice did not identify or explain the urgency justification.

Two of the proposed direct awards were initially intended for Apasen. Tower Hamlets subsequently decided not to proceed with the awards to Apasen and instead entered into contracts with other providers. Apasen challenged those decisions and sought orders setting aside the contracts in question.

Tower Hamlets applied to strike out Apasen’s set-aside claim. It argued that none of the set-aside conditions in Section 105 of the Procurement Act 2023 (2023 Act) could be met because it had published a contract award notice and waited until the end of an eight-working-day voluntary standstill period before entering into the contracts.

The key legal issue

Under Section 104 of the 2023 Act, where the court finds a relevant breach after the contract has been entered into, it must set aside the contract if a Section 105 condition is met, unless an overriding public interest requires the contract to remain in place. Those conditions address cases where the claimant was denied a proper opportunity to seek a precontractual remedy. Section 105(4) of the 2023 Act treats a published notice that did not provide accurate information about the contract as not having been published.

The strike-out application therefore turned on whether Apasen had an arguable case that the contract award notice published by Tower Hamlets was inaccurate or failed to contain information required by the Procurement Regulations 2024, and hence should be treated as never having been published.

The High Court decision

Inaccuracy may not be apparent from the face of a notice

Despite the different statutory terminology and notice framework that apply under the 2023 Act and the Public Contracts Regulation 2015 that it replaced, the court treated R (Faraday Development Ltd) v. West Berkshire Council [2018] EWCA Civ 2532; [2019] PTSR 1346, which had been decided under the 2015 regulation, as a useful guide to the information needed in a procurement notice. Drawing on Faraday, the court considered that a notice should provide a clear explanation and enough objective detail for interested third parties to make a properly informed decision on whether to challenge.

An inaccuracy may not be apparent from the face of a notice. The court may need to examine the underlying facts and contract documentation. Omitted facts may also be so extensive or misleading that the notice becomes inaccurate. The judgment does not set a general test under Section 105(4) of the 2023 Act, and the answer will be fact specific.

An unsupported urgency justification may render a notice inaccurate

Apasen alleged that the urgency was neither extreme nor unavoidable and arose from Tower Hamlets’ own actions or omissions. The court did not decide whether those allegations were correct. It held that, if the urgency justification was not factually well founded, it was at least arguable that a notice asserting that the urgency condition was met would not provide accurate information.

The justification may need to appear in the contract award notice

For a direct award under Section 41 of the 2023 Act, Regulation 27(2)(u) of the Procurement Regulations 2024 requires the contract award notice to contain the relevant direct award information specified in Regulation 26, including the applicable Schedule 5 justification and an explanation of why the contracting authority considers that it applies.

In this case, that explanation appeared in the transparency notice but not the contract award notice. The court held that Apasen’s argument that the contract award notice itself had to contain the explanation was arguable. Although not clearly pleaded, the point could be added by amendment without injustice.

The court therefore refused to strike out the parts of Apasen’s claim seeking set-aside orders. Whether the urgency ground applied, whether the contract award notice was inaccurate and whether any contract should be set aside remain for later judicial determination.

Practical implications

Contracting authorities

Before making a direct award, a contracting authority should:

Verify that the factual basis that justifies the direct award is fully documented
Review whether urgency was genuinely unforeseeable and not self-inflicted
Ensure that the contract award notice itself contains all information required by the Procurement Regulations 2024
Not assume that information contained elsewhere, such as in a transparency notice, will cure deficiencies in the contract award notice

Suppliers

Suppliers considering a challenge should review the notices and the facts behind the stated justification. Publication alone may not be decisive. Missing required information, a justification that does not match the facts, or material omissions, may support an argument that the notice should be treated as unpublished under Section 105(4) of the 2023 Act. A claimant must still prove the relevant breach and establish a set-aside condition under Section 105 of the 2023 Act.

Looking ahead

The decision leaves open important questions on the operation of sections 104 and 105 of the Procurement Act 2023. A substantive hearing may provide further guidance on when inaccuracies in procurement notices are sufficiently serious to justify treating a notice as unpublished.

If it reaches full trial, any decision may clarify the circumstances in which suppliers can seek a set-aside remedy after a contract has been entered into, particularly where challenges focus on the adequacy or accuracy of procurement notices rather than the fact of publication alone.

Pensions Weekly Update: 16 September 2026

Wed, 16 Sep 2026 09:46:10 +00:00

Here is our weekly summary of key legal and regulatory developments relevant to occupational pension schemes that you might have missed, with links for further information.

Along with its final response to consultation, The Pensions Regulator (TPR) has published a new enforcement strategy. The new approach is designed to reflect the more prudential style of regulation that TPR has been moving towards. It sets out a high-level, principles-based framework that allows TPR to respond to risks faster and act earlier to prevent harm. It integrates enforcement with TPR’s supervision and market oversight work, and says that it centres its focus on delivering outcomes for members. TPR says that it aims to be proportionate, accountable, consistent, transparent and targeted in its enforcement approach. It will act early where it can, take a risk-based, outcome-focused approach and target deterrent action where it counts, focusing on the greatest risks and harms to members. TPR notes that this approach will give it flexibility to adapt to changing priorities and risks more swiftly while achieving statutory objectives. The underlying enforcement policies and guidance will be reviewed and developed as new legislation and regulations come into force.
In line with its updated pensions roadmap, and following on from the Pension Schemes Act 2026, the Department for Work and Pensions (DWP) has published a consultation document relating to the framework and digital infrastructure for multiple default consolidators in relation to small pots, including appropriate eligibility criteria and potential exemptions within the system. Pensions minister, Torsten Bell, notes that the intention is to have small pot consolidation operational from 2030. The DWP is expected to publish its response to consultation during Q2 of 2027. Consultation closes at 11:59 p.m. on 17 November 2026.
TPR has published its occupational defined benefit (DB) scheme funding analysis 2026. The analysis provides an overview of funding levels and recovery plans in occupational DB and hybrid pension schemes in the UK. The publication is based on tranche 19 schemes, with effective valuation dates from 22 September 2023 to 21 September 2024 inclusive. The key findings are that 67% of schemes reported a surplus position in tranche 19 on a technical provisions basis. This compares with 39% in tranche 16. The average (mean) assets to technical provisions liabilities ratio for schemes in tranche 19 was 106% (median: 104%). This compares with 94% (median: 95%) in tranche 16. The average (mean) recovery plan length for schemes in deficit was four years (median: 3.2 years), with a median end date falling in 2027, while the average (mean) recovery plan length in tranche 16 was 5.7 years (median: five years). TPR notes that this is the last year that the analysis will be produced in this format, given that all subsequent valuations will fall under the new DB funding code. TPR is still formulating how future analyses will be presented.
The Society of Pension Professionals (SPP) has published a paper, "In praise of contingent assets". This argues that contingent assets deserve renewed attention. Adrian Bourne, co-chair, SPP Covenant Committee says that “properly designed, they are not simply technical funding devices or insolvency protections. They are flexible risk-sharing instruments that can strengthen member security while preserving sponsor flexibility and supporting sustainable covenant outcomes”. The paper looks at the broader picture and includes some useful case studies.
New research from the Money and Pensions Service has found that two in five people (41%) aged 55-65 have no financial plan for later life. In response to this, it has launched a new retirement guidance tool to help with understanding options, estimating retirement income and finding information on where to get help and support.
UK Private Capital has published three reports on “Defined Contribution (DC) Pensions & Private Capital: The State of the Market”, “The Local Government Pension Scheme (LGPS) & Private Capital: An Evolving Landscape” and “Understanding UK DC Pension Schemes: A Practical Guide for Private Capital Firms”. The first report on DC pensions found that evidence to-date indicates that actual allocations from default funds into private markets remain very low. The most recent update of Mansion House Compact signatories found that as of February 2025, only 0.6% of assets under management by signatories were allocated to private markets, while a UK Private Capital survey of venture capital and growth equity firms could only identify two legally binding commitments. UK Private Capital notes that with the ambition to reach significant allocations into private markets by 2030, now only a few years away, further action is needed. The LGPS report found that there was a strong commitment across the system for supporting regional growth and maintaining investment in private capital, but there are ongoing challenges over local investment targets and investment ticket sizes. There are challenges in relation to LGPS investments small enough to include lower and mid-market private capital funds, along with challenges around the regional investment requirements where private capital firms cannot guarantee a specific level of investment in one region or locality.
Large-scale redundancy exercises can create significant legal, operational and reputational challenges for businesses. Careful planning and effective execution are essential to minimise risk, ensure compliance and support successful business outcomes. Register for a webinar on 7 October 2026, in which our UK Labour & Employment colleagues will provide some practical tips for dealing with these challenges.

If you would like specific advice on any of these issues or anything else, please contact a member of our Pensions team.

What can you expect from the proposed digital duty of care?

Fri, 11 Sep 2026 14:21:01 +00:00

The Australian government has introduced a draft digital duty of care (the Duty) bill for consultation.¹ Initially proposed by the government in 2024, the return to this mode of regulation signals what the government itself referred to as a “shift away from reacting to harms by relying on content regulation alone, and moving towards systems-based prevention”.

However, after recent legislative efforts, such as the industry codes and Basic Online Safety Expectations (both now repealed), have codified obligations (rather than overarching duty-based regulation), the maze of online legislation continues, with a real risk of historically different laws creating confusion.

The future of the Duty is not assured, with the Coalition expressing significant objections. However, with the Greens on side, our prediction is that some form of it will make its way into Australian law. Meanwhile, the public’s time to provide feedback on the draft Bill will soon be up. The deadline of Noon 22 September – and the government’s emphasis that they are looking for only “targeted consultation”² – is consistent with recent, equally short time frames for other digital laws.

In this article, we answer some of your most pressing questions about the Duty and identify the provisions that we believe would benefit from greater clarity.

Who does the Duty apply to?

Much of the discourse around the Duty has focused on social media services – the prime minister himself introduced the bill by calling it “the next step following [the government’s] world leading social media age ban”³, and by referring specifically to social media algorithms. However, the impact of the Duty goes beyond social: the Duty covers internet search engines, app distribution services, hosting and internet services, relevant electronic services (including games and apps), equipment providers and services that allow the generation and sharing of gen AI material: see Section 25A.

Unlike other online safety legislation⁴, there is no express statement that a service’s obligations under the Duty will vary depending on the level of risk posed by that service, and where it sits in the online ecosystem (for example, whether the service provider directly engages with individuals). Given its breadth, this will need to be clarified in supporting materials.

What does the Duty require?

The Duty requires a person responsible for an online service to ensure, so far as is reasonably practicable, a safe online environment. This means:

Managing design features of the service appropriately, including through providing user empowerment tools (further discussed in “Does the duty really require opt-in to algorithms?”)
Conducting risk assessments (further discussed in “Are there related governance obligations”?)
Taking effective measures necessary to address those risk assessments.⁵

What is a safe online environment?

At a high level, providing a safe online environment will include protecting:

All Australians from serious harmful material and conduct (e.g. child abuse, sexual violence, extreme violence or cruelty and promotion of illicit drug use).
Australian children from both material and conduct that is harmful to children (e.g. pornography, encouragement of disordered eating or hostile attitudes towards women) and harms associated with the operation of design features. Where the online service is a social media service, then any design features which have “negative behavioural impact” must not operate for under 16s. Other online services may need to take a more nuanced approach to design.

And what is “reasonably practicable”?

The bill sets out what is meant by “reasonably practicable” in Section 25H. The standard expressly requires an organisation to take into account and weigh up relevant matters, including (on a non-exhaustive basis) the matters set out in Subsections 25(a) to (e), such as the likelihood of the harm concerned occurring, the degree of harm that might result and the availability and suitability of ways to eliminate or mitigate the risk.

This framing borrows heavily from work health and safety duties, which require a person conducting a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers while they are at work⁶, and which list factors for determining what is “reasonably practicable”⁷ that are almost identical to those set out in the bill. The intention appears to be to keep this concept as broad as possible, allowing different online services to craft their own approach towards ensuring a safe online environment.

Although they address different subject matter, we expect that recent enforcement on work health and safety duties – and, specifically, the “weighing up” that was undertaken – will prove informative.

Are the concepts of “harm” or “negative design features” static?

No, “harm” and “serious harm” can change over time. Much has been made of the minister’s new ability under Sections 25C and 25D of the Bill to prescribe new forms of “harm” and “serious harm” under legislative rules, with the opposition alleging that the “government is now actively seeking to censor and has been active in censoring, attempting to censor any view they don’t like”. Equally, under Section 25G, the minister may determine that a specific design feature shall be deemed as having negative behavioural impacts, in addition to those which are already listed.

While we understand that technologies can evolve, in preparing for the Duty, online services need to exhaustively and clearly understand what is meant by harm and which design features are in-scope. The fact that there is no effective limitation on the minister’s powers listed above frustrates this objective, which is all the more critical given the application of the Duty.

We have also identified that many forms of harm (or serious harm) are broadly defined. While the intention behind this is clear, the penalties under the Act are prohibitive, reaching to over AU$100 million. There is a real risk that, where the characterisation of content posted is complex or unclear (for example, in the context of illicit drug use, where such content can serve to help those who are addicted), online services will err on the side of caution and act swiftly to contain.

Does the Duty really require opt-in to algorithms?

No, but watch this space. The Duty has automatically deemed certain hallmark features of online life as being unlawful. One of the most significant is recommender systems or algorithms, which is identified in Section 25G as having “negative behavioural impacts”.

The Bill explicitly requires that an online service provide “user empowerment tools” as part of satisfying the Duty, and that such a tool should allow a user to manage the way design features of the service operate for the user (such as through providing control over the kind of content that is recommended). However, in case this is not enough, the bill expressly reserves the right for the minister to required “specified” online services to provide “specified” user empowerment tools: see Section 26(4). It is not difficult to guess what these services and tools might be.

We have identified three issues with this approach:

The intention of the Duty is that it is principles-based, with online services able to determine what steps are reasonably practicable for that provider. As flagged in “Are the concepts of ‘harm’ or ‘negative design features’ static?” above, rules which propose a highly prescriptive approach to compliance for certain services detract from that objective.
A recommender system is not necessarily negative. As others like the Digital Industry Group, Inc. have persuasively noted, an algorithm is not just “one thing…they make digital services more relevant and useful for Australians' different interests and needs”.⁸
Offering total opt-outs as a form of “user empowerment” becomes difficult for platforms that depend on certain personal information to deliver a meaningful service. For example, online retailers may struggle to provide a nonpersonalised feed, when understanding the location of their users helps determine which products and services are available.

While the other design features stated in both Section 25F and 25G are unlikely to generate the same level of attention (for example, feedback features, through which services display information to end-users about who has engaged with their material), some of these are unlikely to be relevant to many services captured by the Duty, making it unclear as to how the Duty is intended to operate beyond social media and gaming platforms (who seem increasingly to be the specific targets of a broad-brush approach).

Isn’t online safety already regulated?

Yes, and some existing laws will be repealed. In particular, the bill proposes to repeal both the Basic Online Safety Expectations (BOSE) and the commissioner’s ability to enact industry codes and standards, which will in practice also mean the phasing out of industry codes as and when the Duty takes hold.

If enacted, the Duty would require that online services comply with what is now a very broad obligation to put in place open-ended systems and processes to ensure a safe online environment. The trouble with this approach is that for a long time now, service providers have been subject to highly specific obligations. To use the Relevant Electronic Services Online Safety Code (Class 1C and Class 2 Material) (RES Code) as an example; under that code, a gaming service provider must:

Implement appropriate age assurance and access control measures to prevent under 18s from playing 18+ computer games⁹
Have terms and conditions in place that prohibit the sharing of illegal material
Moderate content to ensure compliance with those terms and conditions¹⁰

The BOSE are even more prescriptive. For example, they expressly require a service which uses “recommender systems” (i.e. an automated system which shows users posts, ads and accounts to follow, typically based on what a user is most likely to engage with) to take reasonable steps to consider end-user safety and incorporate safety measures in the design, implementation and maintenance of recommender systems.¹¹ This is quite different from the blunter approach foreshadowed by the Duty: “see Does the Duty really require opt-in to algorithms?” above.

There are real questions about whether repealing highly prescriptive legislative instruments is appropriate. The BOSE have been in place for four years, meaning that the industry would have already taken significant steps towards ensuring compliance with them. Conversely, the latest of the codes have only been in place since March 2026, meaning that there has been no time to truly test their impact on the online ecosystem. If enacted, there is no guarantee that steps taken to comply with these laws would still satisfy the Duty – industry may find themselves establishing an entirely new set of compliance standards.

Equally, age-restricted social media services have taken steps to remove under 16 accounts from their platforms, in accordance with Part 4A of the Online Safety Act 2021 (Cth). While this remains law, the Duty includes as part of its assessment of whether there is a “safe online environment” and whether negative design features have been “switched off” for under 16s. This shifts focus and distracts from the main obligation introduced by law not yet two years ago.

What will this mean for upcoming laws and for age assurance?

As any digital enthusiast will know, laws in this space have been rapidly shifting. Over the next few months, we can expect to see several amendments to existing laws (including the Privacy Act 1988 (Cth)), as well as a brand-new Children’s Online Privacy Code (COPC), coming into effect in December.

While still in draft form, the COPC covers similar ground to the Duty, and proposes equivalent protections (including a requirement to handle personal information consistently with ‘the best interests of [a] child’ and a qualified right to erasure, which applies to large digital platforms). Imposing an entirely new obligation on online service providers, before the impact of these changes is understood, seems premature. Equally, any contradictions between these two laws need to be addressed. For example, the COPC requires that an entity only collect personal information about a child that is strictly necessary to provide an online service – it will need to be clear that “strictly necessary” includes implementing steps which satisfy the Duty.

As to age assurance, unlike the COPC, the Duty does not expressly require that services take steps to ascertain the age of their users. In practice, though, this will be required for online services who are required under the Duty to protect children from harmful materials, conduct and design features (if they elect not to remove any such risks altogether). While the Duty creates an exception in Section 26(7) for lawful private communications between adults, online services will still have to put in place measures to assess whether the senders and recipients of such communications are in fact over 18.

Are there related governance obligations?

As expected, yes. Most relevantly, a provider of an online service must conduct a written assessment of the risk of harm posed by that service: Section 26A. This needs to be retained for six years and must be produced to the eSafety Commissioner on demand. A service provider must also prepare transparency reports about the safety of the online service, on request by the eSafety Commissioner: Section 192C.

A few comments:

The scope of the assessment under Section 26A exceeds what is required by the Duty, with Section 26A(2) specifying that “all reasonably foreseeable risks” includes, but is not limited, to those relevant to the Duty. This potentially puts no limit on the “risks”, which should be included, although it is obviously limited by context.
As flagged in “What will this mean for upcoming laws?”, digital regulation is a crowded space. An assessment is clearly necessary to determine the scope of the Duty but may in practice need to be combined with an organisation’s other related obligations, including to conduct a privacy impact assessment under the COPC
Transparency reports can only be issued if certain criteria are met (including if the Commissioner considers them necessary to promote best practice) but can, at least potentially, be required on a periodic, ongoing basis.

What are the penalties for non-compliance?

As mentioned above, penalties for breach of the Duty can extend past AU$100 million for online services. Importantly, the bill clarifies that the Duty applies to a person responsible for an online service, indicating that individuals who either provide the service or exercise day-to-day control over it may have personal liability for breach – including, potentially, criminal liability for failing to comply with issues noticed by the Commissioner or requests for cooperation.

“Online Safety Amendment (Digital Duty of Care) Bill 2026—Exposure Draft”, Australian Government, 8 December 2026 (the Consultation).
See the Consultation.
“My Feed, My Way”, Anthony Albanese, 8 September 2026.
For example, the Head Terms to the Industry Codes of Practice for the Online Industry, which state the following:
Electronic products and services provided across different sections of the online industry may include different functionalities, which in turn may be relevant to:
- The connection between a product or service and risks associated with access or exposure to class 1C and class 2 material
- The relationship between a product or service and an end-user, including whether or not a service controls the end-user interface
- The visibility, control or administration of specific material accessible to an end-user
Section 26(3) of the Bill.
See for example Section 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
Section 19 of the WHS Act.
“Digital duty of care to let Aussies opt out of social media algorithms”, Information Age, 8 September 2026.
Section 7.1, RES Code.
Section 8.1, RES Code
Section 8B, BOSE.

No adverse costs, greater private enforcement risk

Thu, 10 Sep 2026 14:33:10 +00:00

The usual rule for litigation in Australia is that “costs follow the event”. In other words, the party that loses will usually be ordered to make a payment in respect of the legal costs incurred by the winning party.

One exception to the usual rule is where a losing claimant has successfully obtained a “no adverse costs order” (NACO) from the court. As the name suggests, a NACO prevents a claimant from being liable for the other party’s costs if the legal claim fails at trial. This is a highly beneficial outcome for a claimant because legal costs associated with defending a complex legal claim can easily run into the millions of dollars.

NACOs are able to be made in legal proceedings brought by parties alleging breaches of Australia’s competition laws under Part IV of the Competition and Consumer Act 2010 (Cth) (CCA). Under sections 82(4) and (5) of the CCA, the court has the discretion to make a NACO where the action raises a reasonable issue for trial, that issue may also be significant for other parties and the financial disparity between the parties means that a potential adverse costs order might deter the applicant from continuing the action.

The NACO regime was introduced in 2019, to address concerns highlighted by the 2015 Harper Competition Policy Review about the barriers smaller businesses face in privately enforcing competition law.

The recent decision in Woodman Beenleigh Pty Ltd v Bunnings Group Ltd (no adverse costs order) [2026] FCA 1231 appears to be the first reported instance in which the Federal Court has granted a NACO under section 82(4) of the CCA, and is the first detailed judicial consideration of the statutory criteria. In that proceeding, Woodman – the operator of two Mitre 10 hardware stores in Jimboomba – alleges that Bunnings has substantial market power in a national wholesale hardware market.

It claims that Bunnings’ conduct in developing and proposing to open a new Bunnings Warehouse adjacent to Woodman’s Mitre 10 store in Jimboomba has deterred Woodman from expanding its store, and will ultimately force it to exit the local retail market as a result of the retail overcapacity that will be caused by the opening of Bunnings’ store, thereby substantially lessening competition in the local hardware retail market in contravention of section 46(1) of the CCA. Those allegations have not been determined.

On the application of Woodman, the Federal Court was persuaded that the statutory criteria for the grant of a NACO were satisfied and ordered that Woodman not be liable for Bunnings’ costs, regardless of the outcome of the legal proceeding. Bunnings was also ordered to pay Woodman’s costs of obtaining the order.

A key issue was what constitutes a “reasonable issue for trial”. Bunnings argued that Woodman needed to establish at least a prima facie case or a “serious question to be tried”, involving a sufficient likelihood of success. Bromwich J rejected that approach, holding that an issue need only be capable of being reasonably argued or contested at trial. Notably, Bromwich J held that detailed opposition to a legal claim may itself reinforce the conclusion that there are genuinely contestable issues. In this case, the court considered that Bunnings’ arguments and competing expert evidence supported the existence of serious legal and factual issues requiring determination at trial.

His Honour reasoned that a higher threshold would undermine the regime because a NACO has practical significance precisely where an applicant may ultimately lose, and described Woodman’s proceeding as “precisely what the NACO regime was intended to facilitate”.

On the other elements required to be satisfied before exercising its discretion to order a NACO, the court found:

· Woodman’s claim raised issues potentially significant for other independent hardware retailers “contending with Bunnings in a way that imperils their commercial viability”

· Notwithstanding Woodman had received some financial support from the Mitre 10 group, the disparity in available resources between Bunnings, owned by Wesfarmers, operating over 300 stores nationally and with revenue and profit in the billions of dollars, and Woodman, a family-owned operator of two Brisbane hardware stores, was “undeniably enormous” and the possibility of an adverse cost order could deter Woodman from pursuing its case

To be clear, the court has not decided that opening a store next to a competitor constitutes misuse of market power by Bunnings. That remains to be determined at trial.

Family Office Insights
Affluent Neglect: A Perspective for Family Offices, Advisors

Thu, 10 Sep 2026 14:08:45 +00:00

This article was previously published in WealthBriefingAsia in two parts. Part one can be read here, and part two can be read here.

Material wealth does not automatically equate to a happy and balanced childhood. Patricia Woo, taking a lead from important work on human relationships and psychology, examines how high-net worth (HNW) families and their advisors can work together to achieve better outcomes.

Introduction

Affluent neglect refers to forms of neglect experienced by children in wealthy families that may be less visible than neglect in economically disadvantaged contexts, yet can have significant consequences for psychological development, relational functioning and long-term family continuity. Material abundance can coexist with limited emotional availability, intense performance pressure, inconsistent attunement and chronic under-recognition of children’s subjective needs.

For family offices, trustees and advisors, these dynamics matter because they are not confined to childhood. They may emerge later as succession conflict, next-generation disengagement, dependency, secrecy, impaired stewardship capacity or disputes about control, recognition and entitlement. Parents may be deeply committed to provision, education, opportunity and protection, while still having limited time, emotional presence or capacity for relational contact. In some families, care is expressed mainly through access, structure, control and achievement-oriented investment, rather than emotional availability.

Bowen theory in practice

“Bowen” family systems theory offers a useful framework because it shifts the focus from locating pathology in a particular parent or child, to examining the emotional processes that organize the family over time. Rather than asking only whether a parent is neglectful or a child is problematic, a Bowenian approach considers how chronic anxiety is managed across relationships and generations, and how family members become organized around particular roles, symptoms, expectations and patterns of distance.

For advisors, this perspective is particularly valuable. A family office may believe that it is dealing with isolated issues, for example an unmotivated beneficiary, a difficult sibling relationship, a reluctant successor or a demanding patriarch, when it is in fact encountering a broader family emotional system.

Differentiation of self

Differentiation of self is Bowen theory’s central construct. Intrapersonal differentiation of self refers to the capacity to balance thinking and feeling, and interpersonal differentiation of self is about maintaining a balance between individuality and togetherness. A differentiated person can remain meaningfully connected to important others while retaining the ability to think, decide, set boundaries and articulate personal values under emotional pressure.

High-functioning, high-status families may appear highly differentiated because they are capable, educated, disciplined and successful. Yet their apparent competence may depend substantially on external structures, role expectations, wealth, status and image management. When anxiety rises, for example through illness, business decline, divorce, succession, public scrutiny or conflict over wealth, members may become reactive, controlling, compliant or emotionally cut off.

The distinction between the solid self and the pseudo self is important here. A solid self rests on internally grounded principles, values and beliefs that remain reasonably stable despite relational pressure. A pseudo self is more reactive and context-dependent: it is shaped by the need for approval, status, belonging or protection from conflict. The related idea of a borrowed self describes identity and functioning adopted from significant others rather than developed through independent reflection.

In affluent neglect, children may be conditioned to perform, conform and protect the family’s reputation. They may become highly successful academically, professionally or in business, yet their identity may depend heavily on parental approval, elite institutional affiliation, family wealth or expectations about legacy. Their competence can therefore mask a limited ability to tolerate disagreement, make independent decisions, identify authentic preferences or remain connected while differing from the family script.

This can appear in family office work when a beneficiary presents as polished and capable, but cannot express views that differ from a parent’s, a family council’s or a dominant wealth-holder’s expectations. Others may over comply, become emotionally reactive or withdraw from governance participation. Advisors should not assume that technical competence, educational pedigree or social confidence necessarily reflects a solid self.

For practice, the question is not whether the next generation is “ready” in an abstract sense. It is whether family structures allow members to develop and express an internally grounded identity while maintaining connection with the family. Trustee discretion, committee design, beneficiary development, family employment policies and succession planning should avoid rewarding only compliance with an inherited family identity.

Triangles

Triangles are natural and universal ways of managing anxiety. When tension rises between two people, one or both may involve a third person to stabilize the relationship. Triangles become problematic when positions harden over time, limiting flexibility, direct communication and genuine emotional contact.

For a child experiencing affluent neglect, the primary triangle is often formed with the two parents. Marital tension about work, wealth, status, relationships or family obligations may be displaced onto the child. One apparently constructive route is to focus on the child’s education, leadership development, elite opportunities or anticipated role in the family business. This can create a shared parental project that appears attentive and invested, but is actually instrumental.

The child may become central to family discussion, while remaining emotionally peripheral. The parents share the real emotional and material power, while the child functions as a container for their anxiety. Achievement pressure may regulate marital distance: the parents can collaborate over the child’s performance rather than address conflict, loneliness, resentment, grief or ambivalence in their own relationship.

Sibling triangles may become organized around comparison, competition and uncertainty. Parents may keep succession plans, ownership arrangements or expectations about children’s roles unclear, ostensibly to preserve flexibility or avoid upsetting anyone. In practice, secrecy and partial disclosure can direct parental anxiety into sibling rivalry. Children compete to demonstrate loyalty, competence and alignment with parental values, rather than engaging openly with their own interests or concerns.

Intergenerational triangles can be especially powerful in wealthy families. A patriarch or wealth creator may designate a grandchild as a future steward, while sidelining the middle generation. The resulting structure can leave the adult child feeling displaced or resentful, the selected grandchild burdened and fearful and other family members uncertain about their standing. Yet the family may focus primarily on trusts, share transfers, education pathways and governance appointments rather than the emotional impact of these decisions.

Family advisors can be drawn into triangles as secret-keepers, informal messengers, proxy decision-makers or allies of a dominant family member. This may temporarily reduce tension, but can reinforce the underlying emotional process. Good practice requires role clarity, disciplined communication channels, appropriate documentation and careful resistance to carrying messages that family members should address directly with one another.

Nuclear family projection process

The nuclear family projection process describes how a couple manages chronic anxiety through recurring patterns: emotional distance between spouses, marital conflict, dysfunction in one spouse expressed through dominant-submissive positioning and impairment of one or more children through intense parental focus.

In affluent families, emotional distance can be rationalized through legitimate demands: business responsibilities, international travel, philanthropy, social obligations, family expectations and the maintenance of wealth and reputation. These activities may genuinely be necessary, but they can also serve as anxiety regulators. Work and public engagement can become ways for one or both parents to avoid emotional contact, marital vulnerability or conflict.

Marital conflict may also become focused on what children “need.” Parents may disagree intensely over education, lifestyle, discipline, career planning, relationships or family-business involvement, while both believe that they are acting for the child’s benefit. The child’s emotional experience can become incidental, minimized or dismissed. In a dominant-submissive marital pattern, the less powerful spouse may be constrained by explicit or implicit no-talk rules: “Do not complain,” “be grateful” or “family matters stay within the family.”

The projection process becomes particularly evident when parental anxiety is concentrated on one child. Fear of failure, loss of status, disappointment or missed opportunity may be transmitted as relentless monitoring of performance and prospects. A child can be positioned as the future repository of the family’s hopes, status and continuity. Elite education, coaching, leadership grooming and early governance exposure may be valuable developmental support, but they may also reflect over functioning around a child who is carrying a disproportionate share of family anxiety.

Meanwhile, siblings perceived as less relevant to succession may be overlooked, underprepared or informally written off. The contrast between the heavily groomed child and the less attended sibling may later fuel resentment, dependency, disengagement or disputes about fairness.

For family offices, this means that parental investment should not automatically be equated with healthy preparation. Advisors should ask whether development opportunities reflect genuine aptitude and interest, or whether they are organized around projection, status anxiety and rigid assumptions about who must carry the family forward. Succession criteria, stewardship programs and family employment policies should support broader participation, and avoid embedding a single child’s projected role into formal structures without adequate reflection.

Multigenerational transmission process

The multigenerational transmission process explains how patterns of relating, anxiety management, role allocation and emotional functioning are transmitted across generations. Affluent neglect is rarely a first-generation phenomenon. It often reflects longstanding family adaptations to migration, economic hardship, business formation, public scrutiny, loss, conflict or the demands of preserving a family enterprise.

In wealthy families, anxiety may be intensified because relatives not only live together but may also work together, invest together, hold assets together and share responsibility for a family name and legacy. Wealth can create powerful togetherness pressures. Family members may believe that individual choices affect not only themselves, but the reputation, security and continuity of the entire system.

Founder narratives often become central to family governance and education. They can inspire resilience, responsibility and stewardship. However, they may also normalize the sacrifice of emotional life for survival, achievement, prestige or business expansion. A story of exceptional success may leave little room to acknowledge the psychological cost borne by spouses, children, siblings or employees.

To protect family image, difficult experiences such as affairs, addiction, mental-health crises, financial collapse, estrangement or perceived failures may be minimized, reframed or hidden. Positive elements of the family story are amplified, while complexity is excluded. Children may then experience pressure to live up to an idealized legacy and uncertainty about whether they can ever meet its standards.

For advisors, continuity planning is therefore not merely an asset-transfer exercise. Legacy is transmitted relationally, as well as economically. Governance documents, mission statements, philanthropy programs, family constitutions and next-generation education should be designed with awareness that unresolved anxiety, secrecy and rigid role expectations can be reproduced through otherwise sophisticated legal and financial arrangements.

Emotional cutoff

Emotional cutoff is a way of managing anxiety through physical or emotional distance. It may occur in families at any economic level, but in affluent families it can take socially sanctioned forms. Children may attend boarding school, study abroad, live internationally or be cared for primarily by nannies, tutors, household staff and specialist programs. These arrangements can provide real opportunity and excellent practical care, but may also involve an outsourcing of emotional availability.

A child may experience material abundance alongside invisibility, loneliness or a sense that their inner life is not of primary interest. Later, geographic distance may feel like freedom. A young adult may be able to develop interests, relationships and a way of life away from family scrutiny. However, physical distance is not necessarily differentiation of self. A person may remain highly reactive to family expectations, financial dependence, approval, criticism or the possibility of exclusion.

Complete cutoff may be difficult where financial security, social status and access to family networks are at stake. Consequently, many people maintain physical contact and apparent loyalty while adopting an internalized form of cutoff. They compartmentalize, avoid difficult topics, keep their feelings private, do not ask questions and refrain from challenging family decisions. This allows the outward structure of unity to continue while authentic emotional contact remains limited.

Family offices should distinguish differentiated autonomy from emotionally driven cutoff. A beneficiary who lives overseas, declines a family-business role or limits participation in family governance is not necessarily disengaged or immature. The critical question is whether that person can remain connected, communicate clearly and make thoughtful decisions without fusion, avoidance or fear of punishment.

Sibling position

Sibling position can shape expectations about responsibility, caretaking, achievement and leadership. In affluent families, birth order may influence not only family roles but also access to information, developmental investment, governance participation and control over wealth.

In traditional high-wealth contexts, particularly in parts of Asia, the eldest son may be positioned as the natural leader and expected to be strong, stoic, responsible and emotionally restrained. The eldest may also be functionally promoted into a quasi-parental role, supporting younger siblings when parental availability is limited. This can create competence and authority, but also burdens the child with family anxiety.

Middle and younger children may be neglected in subtler ways. Resources and attention may concentrate on the heir or designated successor, while others are expected to find their own path, accept a more peripheral role or rely on endowment support without comparable emotional or developmental investment. These patterns can become embedded in succession arrangements, even when they are not explicitly articulated.

Advisors should assess whether opportunities and roles have been intentionally designed or simply allocated according to birth order, gender, family habit or historical expectations. The apparent preparedness of a designated successor may reflect projection and training, rather than genuinely superior aptitude. Conversely, a less visible sibling may have substantial ability but limited confidence, information access or permission to develop an independent role.

Societal emotional process

Affluent neglect is shaped not only by family dynamics, but also by societal emotional process. Wider cultural assumptions often treat children from wealthy homes as inherently advantaged because their material needs, education and opportunities are well supplied. This can make emotional neglect, limited supervision, performance pressure and psychological distress harder to recognize.

Family offices operate within this broader field. An office that is highly client-dependent or culturally deferential to family authority may avoid difficult issues, minimize conflict, preserve secrecy or prioritize superficial harmony. In doing so, it can become absorbed into the family’s anxiety system and inadvertently sustain the invisibility of emotional problems.

A family office is not outside the family system. It often becomes one of the principal structures through which the system organizes itself. In relatively stable families, this can promote continuity, trust, stewardship and thoughtful decision-making. In more anxious systems, however, the office may be recruited into buffering conflict, controlling information, preserving family myths or stabilizing a dominant principal at the expense of broader family inclusion.

Implications for family advisory

For this reason, one of the most valuable contributions a family office can make is to help reduce chronic anxiety rather than amplify it. This begins with clear role definition, transparent communication and consistent decision-making processes that lower uncertainty and reduce the need for rigid triangling. Family offices can also support differentiation of self by encouraging thoughtful boundaries, rather than emotional fusion or cutoff.

This may include separate forums for different generations, structured family meetings, independent advice for beneficiaries and governance processes that allow disagreement without punishment or withdrawal. It also involves creating safe environments in which next-generation members can speak for themselves, make decisions gradually and develop a more solid sense of self, rather than relying on borrowed identity or constant external validation.

References

“‘We’re giving you the sack’ – Social workers’ perspectives of intervening in affluent families when there are concerns about child neglect,” Bernard, C, & Greenwood, T., British Journal of Social Work, 49, 2266–2282, 2019.
“Family therapy in clinical practice,” Bowen, M., Jason Aronson, 1978.
“Differentiation of self: A scoping review of Bowen Family Systems Theory’s core construct,” Calatrava, M, Martins, M, Schweer-Collins, M., Duch-Ceballos, C, & Rodríguez- González, M, Clinical Psychology Review, 91, 102101, 2022.
“Shadow of the Prince: Parent-incumbents’ coercive control over child-successors in family organizations,” Huang, X, Chen, L., Xu, E, Lu, F., & Tam, K-C, Administrative Science Quarterly, 65(3), 710–750, 2020.
“Family evaluation,” Kerr, M E, & Bowen, M, W W Norton, 1988.
“Privileged but pressured? A study of affluent youth,” Luthar, S S, & Becker, B E, 73(5), 1593-1610, Child Development, 2002.
“Bowen’s effort to differentiate a self: Detriangling from triangles and interlocking triangles,” In P Titelman (Ed.), “Triangles: Bowen family systems theory perspectives (pp. 85-103,)” Titelman, P., Haworth Press, 2008.
“Family feelings: Affective ties and the reproduction of wealth in super-rich families,” Wiest, F, Emotions and Society, 7(3), 331-348. 2005.

The opinions expressed in this update are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Case insight: The Tribunal’s discretion to award indemnity costs in compensation claims

Wed, 09 Sep 2026 16:24:57 +00:00

The Tribunal’s discretion as to costs in claims for compensation is long established, as prescribed in both Section 29 of the Tribunals, Courts and Enforcement Act 2007, as well as the Tribunal’s Practice Direction.

Notwithstanding this wide discretion, in practice, the Tribunal awarding costs on an indemnity basis remains noteworthy, with indemnity costs only generally being awarded where there is something “exceptional” to warrant it (Purfleet Farms Ltd v Secretar of State for Transport, Local Government and the Regions [2002] EWCA Civ 1430).

The recent case of Harnek Singh Samra and Karnail Singh Samra v Sandwell Metropolitan Borough Council [LC-2024-709] gives a timely example of one of those “exceptional” instances.

Facts

The claimants made an offer to settle the compensation claim on 21 October 2025, in the amount of £425,000 (and £100,000 plus value-added tax (VAT) in respect of costs). The acquiring authority made a counteroffer on 31 October 2025, in the sum of £250,000 plus £21,242 for costs. The claimants were ultimately awarded compensation of £547,039 by the Tribunal in February 2026, and therefore “beat” their October 2025 offer.

The acquiring authority accepted liability for costs in principle but rejected the claimants’ argument that costs should be assessed on an indemnity basis.

Arguments raised

The claimants’ primary position hinged upon the principle of equivalence, meaning that claimants should be put as closely as possible in the same position as if their land had not been taken.

The claimants raised a further argument that the acquiring authority had been unreasonably obstructive in their approach to the claim, which was not ultimately addressed by the Tribunal.

The acquiring authority did not specifically raise a defence to the claims that it had been obstructive, but instead relied on the position that, in this case, the compulsory purchase had been made on public interests grounds because the claimants had failed to adequately maintain their land. The acquiring authority also highlighted that there is a clear absence, within the Tribunal Practice Direction, of confirmation that the principle of equivalence is to apply to costs comprised within a disturbance claim.

Decision

The claimants were therefore awarded their costs, assessed on an indemnity basis, in line with the principle of equivalence. While the Tribunal acknowledged the acquiring authority’s position in respect of the Tribunal Practice Direction, this was ultimately not enough to dissuade the Tribunal from exercising the wide powers of discretion afforded to it.

In reaching its decision, the Tribunal referred earlier decisions, including Mann & Ors v Transport for London [2018] EWCA Civ 1520 and Purfleet Farms Ltd v Secretar of State for Transport, Local Government and the Regions [2002] EWCA Civ 1430, which acknowledge that costs can be awarded on an indemnity basis where there is something exceptional to warrant it and, where the claimant has been awarded compensation in excess of the amount offered to it and has accordingly incurred costs in order to determine the correct compensation payable, all costs should be paid to the claimant unless it can be found that the expenses were unnecessary and unreasonable.

What does this mean in practice?

In reality, nothing has changed as a result of this decision. While the decision in this case operates as a reminder that the principle of equivalence can apply to cost claims, this gift has always been the Tribunal’s to give, in line with its wide discretion.

However, unless and until the Tribunal Practice Directions are amended to explicitly provide for the same, this decision will not be binding and therefore isn’t likely to impact advice that is given to claimants in respect of cost risk. Instead, the emphasis remains on the parties to seek to engage collaboratively, notwithstanding any history between the parties, and to carefully consider sensible and early settlement offers.

Multi-club ownership (Part III): Football spotlight – MCO types, trends and compliance

Wed, 09 Sep 2026 11:19:12 +00:00

Sport has been described as the “new frontier” for private capital, of which football has been front and centre. There has been a palpable shift from “passion-led” to “returns-oriented” investment. Rather than “trophy assets”, football clubs are increasingly viewed as yield-generating, diversified asset vehicles.

In our previous article, we reviewed the portfolio-style investment and regulatory approaches in other sports, including rugby union, cricket and motorsport, where further MCO opportunities may present themselves, particularly in relation to new sports, competitions and territories.

In Part III of our multi-club ownership (MCO) series, we examine:

The three core types of MCO group
The latest investment trends in football, including recently published statistics, the role of private equity (PE) and the rise in minority investments
The regulations (current and impending) that shape MCO decision-making