The commercial year 2019

Being a commercial lawyer in 2019 involves much more than interpreting the law. Clients want the whole package – trusted advisers who understand their businesses as well as the wider commercial and geopolitical environment, who spot and solve problems before they even arise.

This is what commercial awareness is all about, but law firms and other employers don’t expect people who are starting out in their careers to be experts. Instead they are looking for potential – candidates who are interested and engaged, who understand that the issues in the news affect lawyers and their clients.  

Here is LawCareers.Net’s sector-by-sector round-up of the themes and developments that have dominated the business world in 2019 so far. Taking a few minutes to engage with these issues will help to develop the broad knowledge and understanding needed for successful applications.

Geopolitical impacts on business

The raw commodities needed for daily life are imported and exported all over the world, from food, to metals and oil. This article by lawyers at White & Case explains how a change in international relations caused by social, political and/or economic events can affect the global supply chain and impact businesses and individuals. This turbulent year has arguably been defined by such issues.

Brexit

Business uncertainty surrounding the UK’s exit from the European Union has seen the value of the pound take several shocks over 2019, falling as the risk rises of a ‘no deal’ Brexit that would see the UK leave without a withdrawal agreement.

The year began with companies’ panic about the possibility of no deal emerging into the open, while Theresa May battled to convince MPs to back her doomed Brexit plan. Tech giant Sony revealed that it was moving its European headquarters from London to Amsterdam to avoid Brexit disruption. Maritime operator P&O announced that as part of its Brexit plans, its entire fleet of cross-Channel ferries would be re-registered under the Cypriot flag to keep EU tax benefits. Retailers including Pets at Home and Dixons Carphone began stockpiling goods in the event of no deal. Even the chief executive of luxury British car brand Bentley said that Brexit is a threat to his company’s profitability. However, figures in March nonetheless showed UK employment to be at its highest level since 1971.

By late summer, Prime Minister May had been defenestrated by her own MPs and replaced with Boris Johnson, leader of the official campaign to leave the EU in the 2016 referendum. But with the probability of no deal continuing to rise, in August the UK food industry asked the government to waive aspects of competition law so that companies could work together in the event of Brexit-related disruption to the food supply chain. Meanwhile, a report commissioned by campaigners for a second referendum on EU membership said that more than half of British farms could go out of business if there is no-deal Brexit on 31 October.

In the hours before Parliament was shut down by Johnson on 9 September, MPs passed the European Union (Withdrawal) (No. 2) Act 2019, known as the Benn Act, which requires the prime minister to seek an extension to the 31 October Brexit withdrawal date if MPs have not voted in favour of either an agreement or a ‘no deal’ exit. This effectively rules out leaving without a deal on 31 October unless the EU rejects an extension or Johnson and his advisers can find a way to legally circumvent the Benn Act.

But despite the passing of the Benn Act, uncertainty around Brexit has continued to impact business. The services sector (which makes up 80% of the UK economy) contracted in September, increasing the risk of a recession. The manufacturing and construction sectors are also in decline.

On 3 October, Johnson finally revealed his proposals for a changed Brexit withdrawal agreement that would see Northern Ireland remain in the European single market for goods, but leave the customs union. However, accompanying “take it or leave it” headlines and doubts over whether the proposals would be acceptable to the EU, the Republic of Ireland and the political parties of Northern Ireland have continued to result in deferred orders and investments.

US-China trade tensions

The China-US trade dispute that began in 2018 has escalated this year, with the two superpowers mutually imposing large tariffs on imports of each other’s goods, negatively impacting industries in both countries and contributing to general uncertainty that has seen the real value of global exports fall.

With tensions high, in May the US government banned American companies from trading with Chinese tech company Huawei without a license on national security grounds, alleging links between the firm and the ruling Chinese Communist Party. As a result, Google barred Huawei from updates to its Android operating system.

The US has also called on its allies to take action against the Chinese firm, but the UK has so far resisted going back on a deal with Huawei, agreed in April, to supply equipment for Britain’s 5G network. 

US-EU trade tensions

Another long-running trade dispute flared up again earlier this month, as the US imposed tariffs worth $7.5 billion on goods imported from the EU. The tariffs are the latest development in a 15-year row between the US and EU over illegal subsidies to aircraft manufacturer Airbus, with the World Trade Organisation (WTO) recently giving the US the go-ahead to retaliate. The EU has threatened to respond with new tariffs on US goods, which could further damage the global economy.

Iran sanctions

In September a series of drone attacks on Saudi Arabian oil refineries knocked out half the country’s oil capacity, causing oil prices to rise 20%. Yemeni Houthi fighters claimed responsibility for the attack, but the US and Saudi Arabia both blamed Iran, with US President Donald Trump promising to increase sanctions against Tehran.

The Strait of Hormuz between the Persian Gulf and the Gulf of Oman is a key shipping route feeding the global supply of oil, so tensions in the region increase the threat to energy security.

Economic slowdown

The beginning of October saw the WTO downgrade its trade growth forecast for 2019 – trade disputes, slower-than-expected growth in China and the US and uncertainty over Brexit are taking their toll on the world economy. If those predictions are correct, economic growth is at its slowest rate since the global financial crisis in 2008.

Technology

The technology revolution in the worlds of finance and law has been underway for some time and it has accelerated this year.

In September, London overtook New York as the world’s number-one city for fintech investment, with over £1.6 billion invested in fintech firms over the first three quarters of 2019.

One of the most high-profile examples of these disruptors challenging traditional market leaders is of course digital bank Monzo, which doubled its value to £2 billion with a fresh round of investor funding in June. Monzo is now the second most valuable fintech start-up in the UK behind investment lender OakNorth.

The rise of challenger banks such as Monzo, Revolut and Starling has also contributed to the decline of traditional high-street banks, whose collective brand value has fallen by £1.6 billion over the past 12 months.

However, the early winners in the tech revolution – established giants such as Google, Amazon, Apple and Facebook – have become subject to concerns relating to their market dominance. In April the International Monetary Fund (IMF) warned that the disproportionate power exercised by a handful of global companies could stifle innovation and make it more difficult for central banks to deal with recessions. The IMF said that stronger competition policies are needed to ensure that tech giants don’t block the entry of new competitors to the market.

Competition

The debate over the regulation of tech firms is far from the only competition issue to make headlines this year. In April, UK watchdog the Competition and Markets Authority (CMA) proposed to partially split up the ‘big four’ accountancy firms on conflict of interest grounds, following a number of major corporate insolvencies including Carillion and BHS.

The big four – PricewaterhouseCoopers, EY, Deloitte and KPMG – were found by the CMA to have “serious competition problems” relating to the close proximity of their audit divisions and lucrative consultancy services. The CMA did not go as far as calling for the complete break-up of the big four firms, but said that this option could be revisited if they did not improve within five years.

Meanwhile in the retail sector, the CMA banned a proposed merger between supermarkets Sainsbury’s and Asda over fears that the tie-up would result in higher prices for consumers. The terms of the ban prevent the two supermarkets from re-attempting the merger for 10 years.

The merger plans were in response to the rise of discount retailers Lidl and Aldi, whose share of the market has increased at the expense of the ‘big four’ supermarkets Sainsbury’s, Asda, Tesco and Morrisons. With its merger plans in tatters, Sainsbury’s has had to change its strategy, announcing a shake-up that would see 70 of its Argos stores move inside Sainsbury’s supermarket sites to save £500 million over the next five years.

In October, the CMA also referred the £90 million merger between sports fashion retailer JD Sports and Footasylum for further scrutiny. With JD Sports already the biggest player in its sector, the CMA is concerned that owner Mike Ashley’s latest acquisition could reduce choice and drive up prices for consumers. The merger now faces an in-depth investigation after the CMA said that JD Sports failed to address its concerns.

M&A

Although it has been a busy year for the CMA, many more high-profile mergers have completed successfully. In January, Coca Cola acquired coffee chain Costa from Whitbread for £3.9 billion. Costa has some 4,000 outlets in 30 countries, so the deal provides Coca Cola with an ideal platform to expand in the coffee market, which is growing at 6% a year globally.

Elsewhere in the café drinks sector, an accounting scandal sent Patisserie Valerie into administration in January, but by February the struggling business had been bought for a fraction of its original worth by investment firm Causeway Capital, which agreed to take 96 shops, saving almost 2,000 jobs.

March saw Disney complete its $71 billion to buy Rupert Murdoch’s 21^st Century Fox. The acquisition has dramatically increased the amount of entertainment content controlled by the company as it gears up to take on Netflix with the launch of streaming platform Disney Plus.

In the legal sector, accounting giant EY continued its expansion into legal services with the acquisition of Pangea3 from media conglomerate Thomson Reuters. The managed legal services business employs over 1,000 legal professionals in eight locations around the world, so the acquisition promises to improve EY’s lifecycle management, regulatory risk and compliance, and investigation and litigation offerings.

In May, Pret a Manger agreed to buy Eat in an effort to meet demand from vegan and vegetarian customers. Pret is acquiring more sites as it looks to convert more stores to the Veggie Pret brand, while Eat had been running at a loss in the crowded lunch and coffee market.

Spring also saw Brazilian cosmetics corporation Natura, owner of The Body Shop and Aesop, buy Avon for around £1.6 billion. The deal established Natura as the world’s fourth largest cosmetics company, but commentators have warned that it will need to invest significantly in Avon’s operations in Brazil, as Avon’s door-to-door sales model has become less popular in the internet age.  

In the fashion sector, internet retailer Boohoo bought the online sales arms of struggling brands Karen Millen and Coast out of administration in August in a deal worth £18 million. The move did not save either business’s network of stores, leaving 1,100 jobs at risk.

Insolvencies

Not all firms that go into administration are saved and there have been a number of high-profile UK insolvencies in 2019. In May British Steel went into liquidation, putting 5,000 jobs at risk, after bosses and the government failed to reach an agreement over emergency funding. The company partly blamed the collapse on Brexit-related uncertainty deterring customers.  

That same month, celebrity chef Jamie Oliver’s restaurant chain collapsed with the loss of 1,000 jobs, in part of a wider pattern of mid-market restaurant chains struggling in recent years due to higher rents, rising food prices and increased competition from more innovative players in the market.

The biggest insolvency of the year happened in September when 178-year-old holiday firm Thomas Cook entered administration when last-minute talks to save the business failed. The package holiday operator’s collapse has put 22,000 jobs at risk worldwide. It also left 150,000 UK holidaymakers stranded, forcing the government to oversee the country’s biggest ever peacetime repatriation.

IP and trademarks

The intellectual property (IP) courts have been a hot destination for celebrities aggrieved at the fast-fashion retailers allegedly ripping off their outfits this year. In May a US court awarded Kim Kardashian-West $2.7 million in compensation from Missguided, after she accused the brand of “knocking off” designer items she was pictured wearing.

Meanwhile Ariana Grande launched a lawsuit in September against Forever 21 for allegedly using her likeness and lookalike outfits from the “7 Rings” video for a promotional campaign.

Employment

The ‘gig economy’ continues to be at the forefront of developing employment law, as workers, employers, lawyers and politicians grapple with the tensions between flexibility and people’s rights at work. Uber and Deliveroo workers across Europe gained important new minimum rights in April when the European Parliament approved legislation entitling them to compensation for work cancelled at short notice and obliging companies that use gig economy workers to pay for any mandatory training. However, if there is a no deal Brexit and the UK leaves the EU without a withdrawal agreement, Uber drivers and Deliveroo riders in the UK may not benefit from the new rules.

Another hugely important employment issue that has rumbled on this year is the ongoing battle being fought by women supermarket employees to gain equal pay to their male colleagues. Supermarket staff at all of the major retailers have banded together to launch legal action against their employers over alleged discrimination between women and men employees. The dispute centres on higher pay being awarded to warehouse staff, who are predominantly male, than to store workers who are predominantly women.

In January the Court of Appeal ruled that the roles of shop workers could be compared to those of warehouse staff, upholding rulings made by an employment tribunal in 2016 and the Employment Appeal Tribunal in 2017. Now Asda has launched its final appeal to the Supreme Court, whose ruling promises to be highly significant for UK employment law.

Josh Richman is the senior editor of LawCareers.Net.