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Legal Opinions – it is time to break the cycle of remediation

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Legal Opinions – it is time to break the cycle of remediation

By Akber Datoo, Managing Partner, D2 Legal Technology and Michael Wood and Annie Bradwell, Senior Consultants, D2 Legal Technology

With the wave of post-crisis regulatory changes, from EMIR to MiFID II, to Margin Requirements for Uncleared Derivatives and Liquidity Reporting now in place, regulators are placing increasing scrutiny on the way institutions conduct business – and with the significant implications on regulatory capital relief and an IMM Waiver, growing attention is being placed on just how well organisations understand counterparty positions and the ability to treat exposures as net rather than gross. Is the close-out netting and the treatment of collateral against those exposures supported by robust legal opinions? Are they current and is the correct relief being taken? Annual attestations to regulators are not only more detailed, they are being ever more rigorously scrutinised and a few too many prudentially regulated firms are falling short of expectations.

Akber Datoo

Akber Datoo

With too many organisations lacking the ability to correctly link counterparty exposures to legal agreement data, and no processes in place to identify those legal opinions that need to be refreshed, the remediation demands continue to escalate. With firms stuck in a remediate, ignore, remediate again cycle, D2 Legal Technology’s Managing Partner Akber Datoo and Senior Consultants Michael Wood and Annie Bradwell ask just why financial institutions are still not treating the management and refresh of legal opinions as an essential business as usual function.

Introduction

Many of the remediation exercises that have occurred recently stem from regulators asking auditors to investigate and to report back on the processes being used by banks as part of the regulatory capital calculations, with a focus on close-out netting legal opinions. And this focus will only increase with the focus on the balance sheet and leverage and liquidity ratios, and the impact close-out netting has on them.

In addition to the immediate impact on the balance sheet, if the regulator is not happy about the way legal opinions are used by the institution for capital relief purposes, such failure will also raise concerns for the regulator that the business is simply not being run properly, prompting further, deeper investigation. Certainly, the remediation work being undertaken by a number of institutions should be raising questions as to the way the legal opinion process is managed. Indeed, under current regulation, institutions are required to review close-out netting and collateral enforceability opinions as frequently as necessary to ensure continuing enforceability.

Yet according to a survey conducted by D2 Legal Technology of sixteen leading investment banks, 42% of institutions had no policy regarding the frequency of legal opinion renewal and two thirds were unable to point to a formally approved and detailed process in relation to the management of legal opinions and associated data. Institutions are stuck in a cycle of poorly managed remediation, ignore, remediate again. It simply is not sustainable to continue with poorly defined processes that are not adequately supported by internal systems or data.

Poor process

Where is the Business as Usual (BAU) process for this critical influence on the balance sheet? Of more concern: do those involved in netting decisions fully recognise and understand the BAU significance? The fact that the decision to net on an agreement is a regulatory determinant that affects the overall balance sheet of the organisation is rarely recognised across the full end-to-end process. This is not just a matter for client on-boarding, nor a legal department, nor middle office or regulatory capital financial and accounting. It is a fundamental process impacting risk, finance and treasury functions.

Given its significance to the process, legal opinion management and renewal should, if not already in place, become a BAU function considered across the full end to end counterparty management lifecycle; and that means organisations need to start factoring in opinion refreshes as part and parcel of both BAU function and cost.

Of course, this is easier said than done. Netting and collateral opinions typically cut across the multiple front office product segments, creating difficult ownership and cost allocation discussions. Furthermore, while some organisations have just a few hundred legal opinions, others have many more, in some cases up to 2,000, creating a huge task and substantial staffing resource to keep them all refreshed.

Data consistency

However, there is also a massive gap between those organisations with good legal agreement, opinion and trade linkage data visibility and those without. Institutions with poor or inadequate data in this area have to undertake a huge manual task to identify what netting flags have been set against what opinion – and what therefore needs updating. In contrast, institutions with good systems in place and good legal opinion data capture, know what they are netting on and can immediately pick up any flags, identify the affected opinions and make the necessary changes. Despite the BCBS 239 regulation mandating data accuracy and lineage for such key netting data, it simply doesn’t exist at many firms.

This is nothing but sensible – an institution should be able to look at all agreements, see what opinions are in force, in what jurisdiction and for which counterparty types and products. If there have been any changes, for example to the automatic early termination provisions in an opinion or recovery and resolution regulatory change within that region, by simply polling all agreements it is easy to identify those that need remediation. But for institutions that have not done the systematic data capture transformation, it is an enormously difficult job – and one that far too often is still at the bottom of the pile.

While clearly institutions need to prioritise this activity, and ideally make it a BAU process, respondents in the D2LT survey raised concerns about a lack of industry standards that can be supported by detailed policies, procedures and systems for legal opinion management, especially regarding the determination of counterparty types and products, and problems with a lack of jurisdiction-based taxonomies. This is a fundamental need prior to any automation and move to a sustainable industry approach, perhaps underpinned by the ISDA Common Domain Model initiative.

There are signs of a move towards standardising counterparty types across jurisdictions, which will help in the initial data capture aspect of legal opinions. Certainly, agreements are well mapped, and content is more readily available now in systems than it was ten years ago. Questions such as: ‘What branches are on the agreement?’ ‘Is automatic early termination applicable?’ ‘What counterparty type am I dealing with?’ can all be quickly answered – the key now is to integrate the relevant systems and data flows to the legal opinion and to productionise the entire process – through technology and automation.

Understanding liability

Of course, this cannot be done overnight. Institutions need to have tough conversations regarding costing and priorities. But with regulators providing very clear demands regarding the basis of opinion review, simply ensuring industry opinion records are updated in a more process friendly manner would cover a huge portion of the balance sheet.

But the most fundamental step is to acknowledge there is a requirement to improve the current state of affairs and recognise accountability in the end to end process. In today’s regulatory environment someone within an institution is accountable for the close-out netting and collateral decisions. If a lawyer signs off on the legal opinions that are being relied upon for the IMM waiver, that is a personal liability. If that individual does not understand whether the data representation of the legal opinions is correct, whether all opinions are still current, or that there may be opinions with conditions attached that have changed, how can that individual stand by that decision?

Repeated remediation is not a sustainable strategy. From both a corporate and personal standpoint, it is becoming imperative to satisfy the regulator that netting and collateral opinions are in order and that the proper processes for refresh are in place. Managing and refreshing legal opinions has to become BAU.

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EU Commission sets out new intellectual property action plan affecting SEPs, patent pooling and EU design protection

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EU Commission sets out new intellectual property action plan affecting SEPs, patent pooling and EU design protection 1

By Andrew White, Partner and UK & European patent attorney at intellectual property firm, Mathys & Squire

The EU Commission published a new intellectual property action plan.  The action plan, touted as “an intellectual property action plan to support the EU’s recovery and resilience” outlines possible future moves, noting that intangible assets are “the cornerstone of today’s economy”, with IPR-intensive industries generating 29.2% (63 million) of all jobs in the EU during the period 2014-2016, and contributing 45% of the total economic activity (GDP) in the EU worth €6 trillion.

The action plan also notes that the quality of patents granted in Europe is among the highest in the world, and that European innovators are frontrunners in green technologies, and leaders in specific digital technologies, such as connectivity technologies.  That being said, the action plan notes that while smart intellectual property (IP) strategies can act as a catalyst for growth, European innovators and creators often fail to grasp the benefits of IP.

The action plan indicates that the Commission is willing to take stronger measures to protect European IP, to increase IP protection amongst European SMEs and to help European companies capitalise on their inventions and creations.

Ambitiously, the action plan also notes that the EU aspires “to be a norm-setter, not a norm-taker” and is keen to seek ambitious IP chapters with high standards of protection in the context of Free Trade Agreements, to help promote a global level playing field.

Some of the key takeaways are noted below.

Unified Patent (UP)

The implementation of the Unified Patent is seen as a priority in the action plan, indicating that it will reduce fragmentation and complexity, and will reduce costs for participants, as well as bridging “the gap between the cost of patent protection in Europe when compared with the US, Japan and other countries”. The action plan also indicates that it will “foster investment in R&D and facilitate the transfer of knowledge across the Single Market”.

SEP licensing

With the introduction of 5G and beyond, the number of standard essential patents (SEPs), as well as the number of SEP holders and implementers, is increasing (for instance, there are over 95,000 unique patents and patent applications supporting 5G).  The action plan notes that many of the new players are not familiar with SEP licensing, but will need to enter into SEP arrangements, and that this is particularly challenging for smaller businesses.

One area that has garnered a lot of press attention recently relating to the licensing of SEPs, and in particular to businesses that are perhaps not as familiar with SEP licensing, is that of the automotive sector.  The action plan acknowledges this and notes that “although currently the biggest disputes seem to occur in the automotive sector, they may extend further as SEP licensing is relevant also in the health, energy, smart manufacturing, digital and electronics ecosystems.”

To this end, the Commission is considering reforms to further “clarify and improve” the framework governing the declaration, licensing and enforcement of SEPs.  This includes potentially creating an independent system of third-party essentiality checks, and follows off the back of a pilot study for essentiality assessments of Standards Essential Patents and a landscape study of potentially essential patents disclosed to ETSI also published alongside the action plan.

Modernising EU design protection

The Commission has indicated that it wants to “modernise” EU design protection “to better reflect the important role design-intensive industries play in the EU economy”.  At present, the Commission is asking for stakeholder feedback on the options for future reform. Recent results of an EU evaluation show that the current legislation works well overall and is still broadly fit for purpose. However, the evaluation has also revealed a number of shortcomings, including the fact that design protection is not yet fully “adapted to the digital age” and lacks clarity and robustness in terms of eligible subject matter, scope of rights conferred and their limitations. The Commission also considers that it further involves partly outdated or overly complicated procedures, inappropriate fee levels and fee structure, lack of coherence of the procedural rules at Union and national level, and an incomplete single market for spare parts.

Updating the SPC system

While the Commission notes that, following an evaluation, the Supplementary Protection Certificate (SPC) framework finds that the EU SPC Regulations “appear to effectively support research on new active ingredient, and thus remain largely fit for purpose”, it believes the EU SPC regime could be strengthened to reduce red tape, improve legal certainty and reduce costs for business.  One option being touted is to introduce a centralised (‘unified’) grant procedure, under which a single application would be subjected to a single examination that, if positive, would result in the granting of national SPCs for each of the Member States designated in the application. The creation of a unitary SPC, complementing the future unitary patent, is listed as another option.

Patent pooling in times of crisis

The EU Commission notes how the pandemic has highlighted the importance of effective IP rules and tools to boost innovation and secure fast deployment of critical innovations and technologies, both in Europe and across the globe, but that it sees a need to improve the tools in place to cope with crisis situations. To this end, the action plan includes proposals to introduce possible mechanisms for rapid voluntary IP pooling and better coordination if compulsory licensing is to be used.

Increasing access for SMEs to IP protection and the introduction of an “IP voucher”

Andrew White

Andrew White

The action plan notes that only 9% of EU SMEs have registered IP rights.  It aims to help SMEs better manage their IP and improve their competitiveness by giving EU SMEs easier access to information and advice on IP. Through the EU’s public funding programmes and further rolled-out at a national level, EU SMEs will get financial aid to finance so-called IP scans (comprehensive, initial, strategic and professional advice on the added value of IP for the individual SME’s business), as well as certain costs related to IP filings.

This will happen through the implementation of an “IP voucher”, which is made available in co-operation with the EUIPO, providing co-funding of up to €1,500 for:

  • IP Scans: up to 75% of the cost and/or
  • registration of trade marks and design rights in the EU and its Member States: up to 50% of the application fees.

SMEs will be able to apply as of mid-January for the IP voucher, through a dedicated website. We understand that the voucher will be provided on a “first come first served” basis.

The action plan also indicates the EU Commission’s intention to make it easier for SMEs to leverage their IP when trying to get access to finance, and that this may be done for example through the use of IP valuations.

EU toolbox against counterfeiting

The EU commission notes that counterfeiting is still a major problem for European businesses and proposes that an “EU toolbox” is set up to set out a co-ordinated European approach on counterfeiting.  The goal of this EU toolbox should be to specify principles for how rights holders, intermediaries and law enforcement authorities should act, co-operate and share data.

AI and blockchain technologies

The action plan notes that in the current digital revolution, there needs to be a reflection on how and what is to be protected – perhaps a nod to the recent litigation we have seen regarding whether an AI can be considered as an inventor.  The action plan in particular notes that questions need to be answered as to whether, and what protection should be given to, products created with the help of AI technologies.  A distinction is made between inventions and creations generated with the help of AI and the ones solely created by AI.  The action plan notes that the EU Commission’s view is that AI systems should not be treated as authors or inventors, which is the approach taken by the EPO, but that harmonisation gaps and room for improvement remain and the EU Commission has indicated that it intends to engage in stakeholder discussions in this respect.

Conclusion

There is much to take in from the action plan, and we will closely monitor developments in all of the above areas to see what will be implemented and when.

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Tech talent visa sees 48% increase in applications over one year as global founders look to the UK

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Tech talent visa sees 48% increase in applications over one year as global founders look to the UK 2
  • Demand for Global Talent Visa applications has increased over two consecutive years since 2018 – up 45% and 48% respectively
  • Demand is expected to increase from 2021as, from January, the Tech Nation Visa will be opening up applications to exceptional tech talent from the EU hoping to work in the UK
  • 52% of those endorsed for the Tech Nation Global Talent Visa are employees, while 28% of those endorsed are tech founders
  • App & software development, AI & machine learning,and fintech are the most common sectors for visa holders. Most endorsed applications come from India, the US and Nigeria
  • 41% of Global Talent Visa applicantschose to reside outside of London to work in the UK’s strong regional tech hubs

Today, Tech Nation, the growth platform for tech companies and leaders, launches a new report, which reveals changes in the international talent landscape and growing interest in the Global Talent Visa.

The Tech Nation Global Talent Visa

As the race for global tech talent heats up, many countries have been making their pitch to attract the best and brightest tech talent to grow their tech industries and create jobs. The Global Talent Visa, for which Tech Nation is the official endorsing body for Digital Technology, plays a key role in enabling international tech talent to contribute to the UK economy and to the growth of high priority sectors such as AI and Cyber.

The visa has seen applications increase significantly over the past two years, with 45% and 48% increases respectively. Since November 2018, the Tech Nation Global Talent Visa has received 1,975 applications and endorsed 920 visas from over 50 countries worldwide. Demand is expected to increase in 2021 with the EU coming into the route.

52% of those endorsed for the Tech Nation Global Talent Visa since 2014 are employees at some of the UK’s leading tech firms, helping to fill existing talent gaps, while 28% are tech founders bringing ideas, talent and capital into the UK’s fast growing tech sector. In 2020, the visa enabled 421 founders to set up business in the UK, up from 400 in 2019.

This global talent is distributed right across the UK. 41% of endorsed applicants for the visa are based outside of London, working in the UK’s strong regional tech hubs. App & software development, AI & machine learning, and fintech are the most popular sector destinations for visa holders, reflecting growth in those tech sub-sectors. India, the US, and Nigeria are the top three countries from which exceptional talent has come into the UK with the Tech Nation visa.

A surge in demand and interest

Labour markets around the world and in the UK have undergone profound shifts in 2020. The data released today shows that there has been a 200% increase in the volume of users in the UK searching online for terms explicitly related to ‘UK tech visas’ between April and September 20201. This surge in interest to work in the UK’s digital tech sector is reflected globally too, with a 100% increase in users internationally searching for these terms in countries like the US and India.

Digital tech roles remain in high demand in the UK. Cyber skills are becoming increasingly important within the UK, particularly in regions such as Wales and the East and West Midlands where there has been a huge increase in demand between 2017 and 2019 (351%, 140%, and 86% respectively). Demand for AI skills has increased by 111% from 2017 to 2019, with Northern Ireland and Wales seeing the greatest increases in demand – 418% and 200% respectively.

Minister for Digital and Culture Caroline Dinenage said: “It’s no surprise the UK’s world-beating technology sector appeals to international talent. Our dynamic companies reflect the UK’s long-standing reputation for innovation and are renowned on the global stage. We are open to the brightest and the best talent, and this visa scheme makes it easier for companies across the country to recruit the talent they need to grow.”

Stephen Kelly, Chair of Tech Nation, comments“The UK is a global talent magnet for Tech founders. The UK provides rich opportunities for entrepreneurs to set up,  flourish and scale a business. The Global Talent Visa is crucial to making this process easy and accessible. Tech Nation’s Visa Report shows that, despite the pandemic, international interest to work in the UK tech sector has never been higher. Attracting tomorrow’s tech leaders to the UK is crucial to the continued growth of the sector, the UK’s place in the world, and driving the nation through recovery to growth in the digital age.”

Trecilla Lobo, SVP, People at BenevolentAI and Tech Nation Board Director, said: “The UK tech ecosystem continues to contribute to the creation of jobs and to innovative products and services. The Tech Nation Visa enables the UK tech sector to maintain its competitive advantage by attracting the best talent in specialist skills in tech, research and AI and a more globally diverse perspective to help us innovate and create amazing products and services. As an immigrant to the UK in my late teens, the UK visa scheme has enabled me to bring my experience, expertise and contribute to the people agenda for tech scale-ups in the UK, and helped me build a successful career in tech. I am really excited that the Tech Nation Visa will open opportunities and streamline the visa process for future global tech talent.”

Hao Zheng, Co-founder & CEO at RoboK, based in Cambridge and Newcastle, said: “I decided to work in UK tech because of the well-established ecosystem, world-class research and innovation and the high-level of experience that is extremely valuable for startup technology companies.”

Congcong Wang, Head of Operations at TusPark, based in Cambridge, said: The UK is a world leading innovation hub, particularly in the fields of AI and Healthcare. Its environment fosters young talent, breeds disruptive innovation and creates amazing companies. Also, the culture of the UK is nurturing and tolerant for innovation, as it is considered a “safe place” for those inspired to take on the more risky route of entrepreneurship.”

Sumit Janmejai, Data-Driven Cybersecurity Professional at Capgemini, based in London said: “Having studied in the UK and worked with UK professionals, I could appreciate the fact that the UK is fast becoming the center of innovation, research and development in the Tech Industry. Besides that, the country offers an excellent life, welcoming culture, and a safe environment. It was an easy choice.”

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Are bots eating your Facebook budget?

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Are bots eating your Facebook budget? 3

By Mike Townend, founding CMO of Beaconsoft Ltd

In an increasingly digitised world, social media has arguably become the most powerful and influential tool at the disposal of businesses, both large and small.

With more than 3.6 billion active social media users worldwide today, it is no surprise that many companies view it as an unparalleled means of marketing their products and services to new and otherwise unreachable audiences, as well as an opportunity to better understand consumer demand and habits.

Facebook is often regarded as one of the very best social media platforms for marketers – not least because of its targeted digital advertising service – but many firms using it may not realise just how much of their budget could be being wasted due to ad fraud.

Numerous studies suggest digital ad fraud affects between 10% and 60% of all types of digital advertising, with businesses of every size falling prey to so-called ‘bots’ – automated programs used by scammers to undercut deals, divert visitors or steal clicks.

But how do bots work, how might they be affecting businesses’ Facebook budgets, data and analytics, and what can be done to combat them?

How do bots work?

A report published by security firm Imperva found that bots – both good and bad – are responsible for 52% of all web traffic, while a separate study by White Ops concluded that as much as 20% of websites that serve ads are visited exclusively by fraudulent click bots.

In simple terms, a click bot is specially designed to carry out click fraud – in other words, the bot poses as a legitimate visitor to a webpage and automatically clicks on pay-per-click [PPC] ads, buttons or other types of hyperlinks.

Their purpose is to trick a platform or service – in this case, Facebook – into believing that real users are interacting with the webpage, app or ad in question.

Usually, bots will not just click a link once; they will click it over and over again to give the impression that the webpage is receiving a high level of traffic.

Why is this a problem?

The presence of click bots on Facebook is particularly problematic because they can effectively drain a business’ online marketing budget without many of its targeted ads reaching real users who might have a genuine interest.

There are a number of reasons why click fraud could be used – for example, competitors may employ a ‘click farm’ – a group of low-paid workers or bots hired to click on paid advertising links – or organised criminals may have found a way to profit from clicking on a business’ links.

In other cases, apps and software are created to collect the payout for a company’s ads, often with the help of bots.

Mike Townend

Mike Townend

Considering the average cost per click in the UK is £0.78, according to Hubspot, with some ad campaigns for popular key phrases running at £10 per click, or even more, it is clear to see how easily this could mount up if a firm’s budget were to be hijacked by scammers.

How might bots affect data and analytics?

Negative click bots have the potential to produce skewed analytics from Facebook advertising campaigns.

Because many businesses are unable to distinguish between fake clicks and legitimate ones, the data that they collect can lead to false conclusions and decisions that could have a detrimental impact on the business. For example, firms may choose to overspend or under-invest on a campaign based on findings that are substantially erroneous.

Businesses must be confident that they are making sound decisions that are informed by reliable data and analytics – and fortunately, there is a way that they can do this.

Taking the fight to the bots

There are a number of methods that firms can use to identify bot clicks, some more straightforward than others.

Frequently checking Facebook analytics for irregularities in traffic that could be attributable to bots can make this task considerably easier.

Specific things to monitor include the average number of page views, the average session time, and the source of referrer traffic – if there are any glaring anomalies in the data, bots could be the source.

Big spikes in page views caused by a higher number of visits than usual can also be indicative of bot activity and are especially dangerous given their propensity to slow down the page for genuine visitors.

Once malicious traffic has been identified, steps can then be taken in blocking it at source, although this is not a simple process and requires technical knowledge and know-how.

After removing negative click bots, companies can take comfort in knowing they are optimising their campaigns by gaining accurate insights that help to increase efficiency, lower the cost per visit, and improve return on investment.

Conclusion

Defeating the bots that are impairing a business’ performance on Facebook is by no means easy, and it requires time and effort to keep malicious traffic under constant surveillance.

Having experts on your side who are well versed in identifying and removing instances of click fraud can help to turn the tide in the battle against bots and ultimately allow a company to make big savings on its advertising spend.

Firms not only owe it to themselves, but to their customers also, to knock these harmful and disruptive programs offline for good.

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