Managing the Legal, Regulatory and HR Challenges inEuropean Shared Services, Outsourcing and CloudComputingMark Lewis, Par...
Presentation structure                                                  • Legal and contractual                 Shared    ...
Shared services/outsourcing regulatory and legal landscape • Sector regulation: financial services, healthcare, utilities,...
Shared services/outsourcing: HR regulatory and legal landscape • Acquired Rights Directive (ARD) as implemented throughout...
Shared services scenarios                                     Same territory                                              ...
Outsourcing scenarios                                 Onshore: Same territory                                             ...
Cloud models: public, private and hybridsHybrid             Private                                                       ...
Cloud Computing: regulatory, HR and legal landscape •   How easy is it to migrate from one Cloud     •   Complete understa...
Managing the challenges •   Internal analysis     • what do you own?     • KPIs/service levels     • group structures “bef...
This document provides a general summary only and is not intended to be comprehensive.Specific legal advice should always ...
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Managing the Legal, Regulatory and HR Challenges in European Shared Services, Outsourcing and Cloud Computing

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Managing the Legal, Regulatory and HR Challenges in European Shared Services, Outsourcing and Cloud Computing

  1. 1. Managing the Legal, Regulatory and HR Challenges inEuropean Shared Services, Outsourcing and CloudComputingMark Lewis, Partner and Head of OutsourcingDAY THREE, TRACK C: HR TRANSFORMATION, WEDNESDAY, 11TH MAY AT 1:45
  2. 2. Presentation structure • Legal and contractual Shared services structures scenarios • Legal and contractual issues Outsourcing • Regulatory landscape scenarios • HR legal landscape Cloud • Managing the legal, Computing contractual, regulatory models and HR challengeswww.blplaw.com Page 2 © Berwin Leighton Paisner
  3. 3. Shared services/outsourcing regulatory and legal landscape • Sector regulation: financial services, healthcare, utilities, EU digital society, etc. • Foreign regulation where applicable, e.g. US HIPAA, US Federal Information Security Management Act • Public procurement rules where public sector involved • Data protection and privacy • personal: employees and living individuals • corporate data in some countries, e.g. Austria, Switzerland • cross-border data flows • intra-group data flows and use of EU Model Clauses (if approved locally) • each country has implemented somewhat differently • Human rights legislation applicable in EU territory • Private law rights: customer agreements, confidentiality, contracts with third partieswww.blplaw.com Page 3 © Berwin Leighton Paisner
  4. 4. Shared services/outsourcing: HR regulatory and legal landscape • Acquired Rights Directive (ARD) as implemented throughout EU: 2001/23 • teleological interpretation • ECJ will look through corporate structures: Heineken/Albron (C-242/09) • each country has implemented somewhat differently • There are offshore equivalents, e.g. in India • Works Council and similar consultation/agreements • Redundancy processes • Beckmann/Martin contractual rights in pension schemes • Immigration/visa requirements for offshore staff • Collective labour and governmental pressure against outsourcing, nearshoring/offshoring • Cross-border/offshore outsourcing and the ARDwww.blplaw.com Page 4 © Berwin Leighton Paisner
  5. 5. Shared services scenarios Same territory Assets, staff, share options HQ Co SSC External Assets, staff, services A contract, KPIs A Provider MSA/GFA/SoWs SoW Co External SoW Local Provider B Different territory, within EU/EEACo Co SoW External Local ProviderC D Different territory, outside EU/EEA Co Co SSC SoW External E F B Local Provider www.blplaw.com Page 5 © Berwin Leighton Paisner
  6. 6. Outsourcing scenarios Onshore: Same territory Sub-Contractor HQ Co Assets, staff Outsource Sub-Contract 1 1 A MSA/GFA/SoWs Provider Sub-Contractor Sub-Contract 2SoW SoW Intra-group 2 Intra-group Agreement Agreement Co B Share/Call Option Nearshore: Different territory within EU/EEA SoWSoW SoW Nearshore SoW SubsidiaryCo Co SoW Branch C D Intra-group Intra-group SoW Agreement Agreement Offshore: Different territory outside EU/EEASoW Co Co Offshore Virtual captive/ E F Parent/Subsidiary BOT www.blplaw.com Page 6 © Berwin Leighton Paisner
  7. 7. Cloud models: public, private and hybridsHybrid Private Public On premises/internal Off premises/external www.blplaw.com Page 7 © Berwin Leighton Paisner
  8. 8. Cloud Computing: regulatory, HR and legal landscape • How easy is it to migrate from one Cloud • Complete understanding of the Cloud provider to another? provider’s policies and contract terms, in particular: • Viability of providers and how long they • acceptable use will continue to support customers’ Cloud Computing platforms • variation of terms • data integrity • Siting: data protection/privacy • data preservation • Data sovereignty • data disclosure • Is there an ARD transfer? • data location and transfer • data security • Regulatory compliance • IPR ownership in content • Security • liability • service availability • Disaster recovery/business continuity • See Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services, Bradshaw, Millard and Walden, 1 September 2010, Queen Mary University of London, School of Law, Legal Studies Research Paper No.63/2010, available for downloading from http://ssrn.com/abstract=1662374- 1.09.2010www.blplaw.com Page 8 © Berwin Leighton Paisner
  9. 9. Managing the challenges • Internal analysis • what do you own? • KPIs/service levels • group structures “before and after” • data/information flows • Due diligence (DD): • ideally before you embark on whole project • if not, remember to do it • critical: understand the regulatory and private law impact • Allow plenty of time for regulatory consultation and approvals, labour consultations and agreements and third party consents • Carry DD and results of internal analysis into contract with external providers • Allocate responsibility and liability for regulatory compliance in provider contract • MSA/GFA/SoW to provide for flexibility and “gateway” risk management • Timing of SoWs will affect ARD and regulatory obligationswww.blplaw.com Page 9 © Berwin Leighton Paisner
  10. 10. This document provides a general summary only and is not intended to be comprehensive.Specific legal advice should always be sought in relation to the particular facts of a givensituation.

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