Category: Global

UK Appeal Court Provides Authoritative Guidance on Construction All Risks Insurance Policies

In the UK Court of Appeal decision in Sky UK Limited and Mace Limited v Riverstone, authoritative guidance has been provided on the key principles that apply to Construction All Risks (CAR) insurance policies.
The decision is of great importance to all those involved with the insurance of construction projects because it provides clarification on: (i) the meaning of “damage” under these policies, (ii) recovery of foreseeable damage occurring outside of the policy period, (iii) the recoverability of investigation costs, and (iv) the mechanics of aggregation and deductibles. 
Background
From 2014 to 2016, Sky’s global headquarters (Sky Central) was constructed by Mace Limited (Mace) as the main contractor under a Design and Build Contract. For the purpose of the construction, Mace alongside Sky UK Limited (Sky) were insureds under a Construction All Risks (CAR) insurance policy, which ran from 1 February 2014 (commencement of the project) to 15 July 2017 (one-year post-completion).
Sky Central’s roof covers an area of about 16,000 square meters and is said to be the largest timber flat roof in Europe. The roof is made up of 472 individual wooden cassettes, which were installed between December 2014 and May 2015. Following installation, the cassettes were left waiting for permanent waterproofing and it later became apparent that rainwater had entered the cassettes from an early stage. By March 2015, standing water was found inside the gutter compartments of 27 cassettes which had entered these cassettes and remained there, leading to a wetting of internal timbers. The ingress of water mostly occurred during the construction and therefore within the policy period. The appeal concerned crucial issues under the CAR policy arising from of this extensive water damage. 
Court of Appeal decision 
The Meaning of “Damage” Within the Insuring Clause
The insuring clause in the CAR policy provided that insurers would “indemnify the Insured against physical loss or damage to Property Insured, occurring during the Period of Insurance, from any cause whatsoever…”1 The parties disagreed on whether the wetting of the internal timbers was itself “damage”. The insurers argued that, to constitute “damage”, the timbers needed to have reached a condition where they required immediate replacement or repair. They argued that wetting that could be cured by drying out was not “damage”.
The Court disagreed and determined that, in line with criminal law authorities, “damage” amounted to “any change to the physical nature of tangible property which impair[s] its value or usefulness to its owner or operator.”2 There was no reason to take a different approach—this was the natural and ordinary meaning of “damage”. 
It followed that the insurers’ position—that “damage” required the cassettes to have reached a stage which impaired their structural performance and integrity—was rejected. The entry of moisture into the cassettes was a tangible physical change to the cassettes as long as the presence of water, if left unattended, would affect the structural stability, strength, functionality, or useable life of the cassettes (or would do so if left unremedied).
Recovery of Foreseeable Development and Deterioration Damage Occurring Outside the Policy Period
The Court noted that, by a well-established line of authority, a property insurance claim is a claim for unliquidated damages, which means the measure of recovery is based on the common law principles governing damages for breach of contract. The general objective of damages for breach of contract is to put the innocent party back in the position they would have been in had the breach not occurred. While it is open to the parties to the insurance contract to modify the measure of damages that the general law provides for, the exclusion of the usual remedies must be expressed in clear words. As a result, the cost of remedying the foreseeable deterioration and development damage—which occurred after the policy period but resulted from insured damage occurring during the policy period—was within the measure of recovery under the policy. 
The Court also noted that this conclusion accords with business common sense. A businessperson in the shoes of the insured would “reasonably expect to be compensated for the consequences of the insured damage deteriorating or developing, absent a contract term excluding such recovery.”3 If this was not the case, there would be “serious and unacceptable adverse consequences” because it would make deterioration and development damage occurring after the policy period uninsurable under any subsequent insurance cover.4
Investigation Costs
Concerning the recoverability of investigation costs, the Court determined that, as a matter of principle, where insured damage has occurred for which damages are recoverable under the policy of insurance, the costs of investigating the extent and nature of the damage (including any development and deterioration damage) are recoverable if they are “reasonably incurred in order to determine how to remediate it”.4 Thus, the reasonable costs of investigation of what is reasonably necessary to remedy insured damage was “self-evidently” part of the “full cost of repairing or reinstating” insured damage.6
Aggregation / Deductibles
Lastly, the Court considered whether a deductible of £150,000 “any one event” (the Retained Liability Provision) applied once to the whole of the claim or applied separately in respect of damage to each individual cassette. At first instance, the judge had decided that one deductible of £150,000 applied to Sky’s claim because the proximate cause of the water ingress was the deficient design of the works that failed to provide for a temporary roof over the cassettes during construction. The decision not to provide this roof was therefore the “any one event” for the application of the deductible.
The insurers appealed on the basis that the judge had erred in his construction and application of the Retained Liability Provision by: (a) treating the relevant single “event” as the design decision not to use a temporary roof; and (b) in failing to identify each individual cassette as the “part” or “parts” of the property insured to which the Retained Liability Provision applied. The insurers argued that the term “event” applies to the damage suffered not the cause of the damage—meaning there were numerous “events” for the purposes of this deductible. 
The Court dismissed the insurers’ appeal, noting that “any one event” is an expression used in aggregation clauses both for the purposes of deductibles and policy limits and, in this context, has a well-established meaning, which both parties were taken to have been aware of. “Event” refers to the cause of the damage, not the damage itself, and a decision (in this case not to provide a temporary roof) could amount to an “event” for these purposes. “Any one event” is a classic term for aggregation of losses by reference to the cause of the losses. 
Conclusion
The key points for policyholders are:

Damage can involve any change to the physical nature of tangible property that impairs its value or usefulness. Property can be damaged even if such damage is capable of remedy.
Recovery is not necessarily confined to damage physically present at the time the policy expires. Unless the policy provides otherwise, the costs of remedying the foreseeable deterioration and development damage are recoverable under the contractual principles that govern common law damages, even if such damage extends beyond the policy period. 
Once it is established that there is insured damage, reasonable investigation costs incurred in investigating the cause and extent of the damage should be recoverable. 
Lastly, reference to “any one event” in the context of an aggregation clause determining the number of policy deductibles meant the event causing the damage—not the damage itself. 

Footnotes 
1 [2024] EWCA Civ 1567, [2].
2 [2024] EWCA Civ 1567, [107].
3 [2024] EWCA Civ 1567, [80].
4 [2024] EWCA Civ 1567, [81].
5 [2024] EWCA Civ 1567, [89].
6 [2024] EWCA Civ 1567, [90].

Dubai Court of Cassation Holds Clause Providing for Court Provisional Measures Not a Waiver of Arbitration Agreement

Introduction
The Dubai Court of Cassation (Court of Cassation) in Case No. 296 of 2024 vacated the decision of the Dubai Court of Appeal (Court of Appeal) in Commercial Appeal No. 2284/2023, in which the Court of Appeal issued a decision on the merits of a claim despite the existence of an arbitration agreement. Relying upon an inaccurate translation of the arbitration agreement, the Court of Appeal found that the parties had agreed that either party could refer disputes arising out of the parties’ contract to any competent court and had therefore waived the right to arbitration. In vacating the Court of Appeal’s decision, the Court of Cassation confirmed that the Dubai courts have the authority to look to the original text of an arbitration agreement, and disregard any inaccurate translation, to ascertain the intent of the parties. 
Background
The claimant filed proceedings in the Dubai Court of First Instance seeking a monetary judgment against the defendant arising out of alleged breaches of contract. The defendant did not appear before the Court of First Instance, and the Court of First instance dismissed the claim due to lack of evidence. 
The claimant (appellant) filed an appeal to the Court of Appeal. The respondent to the appeal (the defendant in the lower court proceedings) argued that the claim should be dismissed on the grounds of lack of jurisdiction due to the existence of an arbitration agreement between the parties. The Court of Appeal dismissed this argument and found, based on the Arabic translation of the arbitration agreement, that the parties had agreed that either party could refer disputes arising out of the parties’ contract to any competent court and therefore, the Dubai courts had jurisdiction over the dispute. 
The defendant appealed this judgment to the Court of Cassation relying upon the existence of an arbitration agreement to argue that the Dubai courts lacked jurisdiction. 
Judgment of the Court of Cassation
The Court of Cassation noted that the arbitration agreement was concluded in English and therefore, the intent of the parties had to be considered in light of the original text of the arbitration agreement and not any Arabic translation thereof. The Court of Cassation held that the original text is clear that either party may apply to any competent court for “injunctive relief” or other “provisional remedies” (but not in respect of the determination of the substantive claim). The Court of Cassation noted that these are common law terms and the closest concepts under UAE law are “provisional orders” and “provisional or precautionary measures”. The Court of Cassation confirmed that the parties’ agreement is consistent with the right of the parties, set forth in Article 18(2) of Federal Law No. 6 of 2018 (UAE Arbitration Law), to seek provisional or precautionary measures from a court of competent jurisdiction in support of current or future arbitration proceedings. Accordingly, the Court of Cassation held that the parties’ agreement did not constitute a waiver of the agreement to resolve the substantive dispute in arbitration and therefore the Court of Appeal decision must be vacated. 
Analysis
This judgment confirms that, under the UAE Arbitration Law, parties may seek provisional or precautionary measures from a court of competent jurisdiction in support of current or future arbitration proceedings and that any express agreement to this effect does not constitute a waiver of the arbitration agreement. It also serves as a reminder to ensure that translations into Arabic for the use in onshore court proceedings are accurate. 

Streamlining Sustainable Finance: Simplification of the EU Taxonomy

On 5 February 2025, the EU Platform on Sustainable Finance (the ‘‘Platform’’) published a report with recommendations on how to simplify the EU Taxonomy (the ‘‘Report’’). The EU Taxonomy is the EU’s classification system for sustainable activities. The Report sets out key areas of improvement and simplification of taxonomy reporting by making the EU Taxonomy more efficient with the overall aim of enhancing sustainable finance.
The Report sets out five key recommendations to the European Commission for simplification of the EU Taxonomy. The Platform anticipates that its proposals could reduce the burden of reporting on non-financial companies by over a third. The Platform further believes that a materiality approach to EU Taxonomy reporting would increase the efficiency in reporting for both financial and non-financial companies. The Report also emphasises the importance of greater interoperability between the EU Taxonomy and taxonomies being introduced in other jurisdictions.
The Platform’s Proposals:
We set out some of the key proposals below.
 1: Refine the‘‘Do No Significant Harm”(‘‘DNSH’’) assessment and reporting obligations through:

a review of all DNSH criteria in the delegated acts with a focus on increasing their usability for financial and non-financial companies. Until a comprehensive review of the DNSH criteria is complete, a temporary ‘‘comply or explain’’ approach should be introduced for DNSH assessment of the Turnover key performance indicator (‘‘KPI’’);
adoption of a lighter compliance assessment process; and
support international applicability by converting references to European legislation into alternative requirements, such as on quantitative or process-focused requirements based on international standards. This would be a welcome development and has been a real hurdle for EU Taxonomy alignment with non-EU assets.

2: Reducing the corporate reporting burden by more than a third by:

introducing a materiality threshold for calculating KPIs in non-financial company reporting and the combined KPIs of financial undertakings;
making the operational expenditure KPI a mandatory disclosure only for research and development costs;
enhancing alignment of materiality thresholds with existing financial reporting regulations; and
simplifying templates and reducing data points to limit reporting to only the information relevant to making business decisions.

3: Simplifying the Green Asset Ratio (‘‘GAR’’) that encourages green and transition lending by:

excluding assets in the numerator and denominator that cannot be measured against the EU Taxonomy;
simplifying retail exposure reporting and focusing on substantial contribution; and
allowing estimates and proxies to be used in reporting along with measures to protect against greenwashing allegations.

4: Defining clear guidelines for the use of estimates in reporting:

where estimates are used, methods of estimation must be consistently applied to the substantial contribution and DNSH criteria; and
companies must adopt estimation methods with sufficient governance, traceability, transparency, input coverage and input quality in place.

5: Supporting small and medium-sized enterprises (‘‘SMEs’’) in accessing sustainable finance by:

introducing a simplified approach to the EU Taxonomy for listed SMEs; and
adopting a voluntary approach for banks and investors’ exposures to unlisted SMEs.

While the European Commission is not formally bound by the Platform’s recommendations, the proposals set out in the Report have the potential to significantly streamline reporting burdens under the EU Taxonomy and therefore enhance access to sustainable finance.

New EDPB Statement on Agre Assurance: What You Need to Know

On 11 February 2024, the European Data Protection Board (EDPB) adopted a new statement on age assurance. This statement, while not legally binding, will guide the enforcement of age-gating methods across the EU. Age assurance refers to the methods used to determine an individual’s age or age range with varying levels of confidence or certainty.
The EDPB’s statement addresses several online scenarios where age verification is crucial. These include situations where legal age requirements exist for purchasing products, using services that could pose risks to children, or engaging in legal activities. It also emphasizes the responsibility to protect children by ensuring that services are designed and provided in an age-appropriate manner.
Platforms publishing notably adult content and which may be mandated under local laws to implement age control methods will need to take this guidance into consideration.
Implementation Requirements
Perform and document a risk-based assessment explaining the necessity of age assurance for your service and identifying specific risks. The age verification system should collect only the minimum age-related data necessary, typically just determining if a user is above or below the relevant age threshold. The chosen method must not enable tracking, profiling, or identification beyond what’s necessary for age verification.
Technical Requirements
Implement privacy-enhancing technologies that favor user-held data and secure local processing. Ensure multiple verification methods are available to prevent discrimination against users without access to certain tools. Consider a “no-log” policy where age verification data is not retained after the process.
Required Documentation
Conduct a Data Protection Impact Assessment (DPIA) before implementing any age assurance system. Develop clear policies documenting your age assurance governance framework, including roles and responsibilities, data protection measures, and compliance monitoring procedures.
Josefine Beil contributed to this article

6 Steps to Manage Tariff Risks in a Trade War

As Trump seeks to raise U.S. tariffs (which currently tend to be among the lowest worldwide), manufacturers, distributors, retailers, and other companies that frequently import (“importers”) must determine the best strategy to deal with the resulting uncertainties. Determining such a strategy is further complicated by the fact that President Trump has made a number of different proposals depending on the country and product.

Trump Tariff Proposals

25% tariffs on Mexico and Canda
10% tariffs on China
100% tariffs on BRICS countries (comprising Brazil, Russia, India, China, and more recently additional countries in the Middle East and Africa)
10–20% tariffs on the rest of the world
“Reciprocal tariffs” that would impose varying tariff levels by country

But while the exact form of higher tariffs is unknown, the reality is that higher tariffs are coming. This means importers have three tariff-related problems:

Identifying and Managing Immediate Risks and Cost Increases. Importers need to manage the immediate risk of higher tariffs, which can sharply change production cost structures.
Nimbly Responding by Changing Supply Chain Structure. Importers need to ensure they can nimbly respond to rapid shifts in importing from planned suppliers, even if it means entirely changing long-standing supply chains.
Maintaining Supply Chain Integrity to Avoid Detained Goods. Importers need to continue to comply with ongoing efforts of Customs & Border Protection (CBP) to emphasize supply chain integrity issues so that goods do not get detained at the border — specifically, supply chain integrity issues related to forced labor, human trafficking, and the importing of goods potentially violating the Uyghur Forced Labor Prevention Act (UFLPA).

To cope with these problems, importers need to identify their import-related risks, add flexibility within their supply chains, address tariff-related risks in both their buy- and sell-side contracts, and ensure their customs and supply chain integrity compliance is in good working order. Below are six practical steps that importers can take to identify and mitigate their import-related risks.

Step 1: Risk Identification – Understanding Your Company’s Importing Patterns and How They Impact Your Company’s Importing Risk Profile. Importers need to gather full information on their historic and planned import patterns so that they can understand the full scope of potential supply chain disruptions and higher tariffs on importing costs.
Step 2: Risk Planning – Understanding How to Add Flexibility to Your Supply Chain to Address Your Company’s Import-Related Risk. It is likely that the Trump Administration will announce tariff rates that target certain countries, including not just China, Canada, and Mexico but also Europe and countries that have free trade agreements with the United States. Accordingly, importers need to conduct risk planning and identify areas where they can build in supply chain flexibility to ensure they have the ability to quickly pivot import patterns if needed to respond to a rapidly changing tariff environment, particularly when importing from countries that maintain higher tariffs and non-tariff barriers, such as China, India, and Brazil (which will likely be targets of reciprocal tariffs).
Step 3: Contractual Risk Management – Identifying Ways to Increase Your Company’s Contractual Ability to Adapt to Unexpected Changes in the Importing Environment. Importers should gather and audit their contractual provisions, on both the buy and sell sides, to determine how the contracts address tariff-related risks. The goal is to ensure all contractual arrangements incorporate supply, sales, and pricing flexibility to deal with unanticipated tariff changes.
Step 4: Risk Minimization– Ensuring Your Company’s Customs Compliance Is in Order. In a high-tariff environment, tariff underpayments mount up much more quickly, as do potential penalties. As a result, manufactures must examine import-related compliance to ensure your company is exercising reasonable care in import operations and not underpaying customs tariffs.
Step 5: Opportunity Identification – Ensuring Your Company Is Maximizing Tariff Savings. In a high-tariff environment, it also is more important to identify potential tariff-saving opportunities. Therefore, importers must examine their historic and planned import patterns to identify available tariff-saving opportunities, including potential ways to minimize tariffs if USMCA disappears (or if it is substantially modified), or if additional tariffs are imposed on Canada or Mexico or other major sources of imports.
Step 6: Minimizing Supply Chain Integrity Risks– Understanding Your Supply Chain and Mitigating Supply Chain Integrity Risk, Right Down to the Last Sub-Supplier. Finally, CBP has been detaining a record number of goods for supply chain integrity issues, especially for UFLPA violations. An importer must carefully consider whether it has implemented measures to help ensure it is ethically sourcing goods from abroad, including the need to quickly vet secondary or alternative suppliers brought on board to expand supply chain flexibility.

Changes to U.S. Mission India’s Nonimmigrant Visa Processing

The U.S. Embassy and Consulates in India recently announced updates to nonimmigrant visa processing that took effect last week, including changes to interview waiver (drop box) eligibility and the centralization of visa interview appointments to increase efficiency and optimize resources to address the continued high demand for U.S. visas.

Quick Hits

The U.S. State Department has revised drop box eligibility criteria, limiting it to applicants renewing a visa in the same class that is either still valid or expired within the last twelve months (a departure from the previous forty-eight-month policy for any visa class).
Despite efforts to streamline processing, visa appointments for certain nonimmigrant categories remain backlogged by more than a year.
U.S. Mission India broke records in 2024, issuing more than one million nonimmigrant visas for the second year in a row, underscoring the huge demand of Indians for travel to the United States for tourism, business, and education.

Interview Waiver (Drop Box) Changes
According to U.S. Mission India’s appointment scheduling service, applicants seeking a waiver of the standard visa interview requirement must meet stricter eligibility criteria:

Applicants must have a previous U.S. visa in the same class as the visa they are applying for.
The prior visa must be either still valid or have expired within the past twelve months.

This is a significant change from the previous policy, which permitted drop box processing for applicants with a visa in any category that had expired within the past forty-eight months.
The U.S. Visa Service Desk is advising visa applicants who have already scheduled an interview waiver appointment to review their eligibility. If they are no longer eligible for an interview waiver under the new criteria, they must cancel the existing appointment and reschedule a biometric and consular appointment for an in-person interview.
The narrower eligibility criteria mean more applicants will have to attend in-person visa interviews, which may further impact currently posted visa wait times:

City/Post
Interview Required Student/Exchange Visitors (F, M, J)
Interview Required Petition-Based Temporary Workers (H, L, O, P, Q)
Interview Required Crew and Transit (C, D, C1/D)
Interview Required Visitors (B1/B2)

Chennai (Madras)
85 Days
28 Days
9 Days
436 Days

Hyderabad
85 Days
15 Days
1 Day
429 Days

Kolkata
375 Days
415 Days

Mumbai (Bombay)
302 Days
10 Days
444 Days

New Delhi
85 Days
37 Days
442 Days

Source: U.S. Department of State—Bureau of Consular Affairs
U.S. Mission India advises that drop box processing typically takes up to three weeks from document submission at a Visa Application Center (VAC) until the visa is ready for pick-up or delivery. However, due to the more restrictive eligibility criteria, more applicants will be required to schedule in-person interviews, potentially exacerbating wait times.
Nonimmigrant Visa (NIV) Rescheduling Policy
Effective January 1, 2025, the following rescheduling rules apply to nonimmigrant visa appointments:

Applicants can initially schedule their visa appointment at any preferred location.
One free reschedule is permitted.
If an applicant misses an appointment or needs to reschedule a second time, they must repay the visa fee to book a new appointment.

Centralization of Visa Processing
To streamline operations, U.S. Mission India has centralized processing for certain visa categories:

First-time H & L visa interview appointments → Centralized in Hyderabad
First-time Blanket L visa applications → Processed in Chennai
B1/B2 interview waiver (drop box) appointments → Centralized in New Delhi
H & L interview waiver (drop box) appointments → Centralized in Chennai

Regardless of where the interview waiver appointment is scheduled, applicants can submit documents at any of the five Visa Application Centers (VACs) at no cost:

Chennai
Hyderabad
Kolkata
Mumbai
New Delhi

Alternatively, applicants may submit documents at one of six Document Drop-off Centers for a fee of 850 rupees (approximately USD $9.81) per application:

Ahmedabad
Bangalore
Chandigarh
Cochin
Jalandhar
Pune

In certain cases, applicants may still be required to attend an in-person interview at the designated consular post where their visa category has been centralized.
Next Steps
Given the continued high demand and processing delays, stakeholders may want to schedule visa appointments as early as possible to minimize disruptions.
The U.S. Department of State’s Bureau of Consular Affairs has not yet announced whether it will extend or expand its domestic visa renewal pilot program, which ran from January to April 2024. With stricter interview waiver eligibility and more applicants now required to attend in-person interviews, visa processing times might increase, potentially leading to longer wait times across multiple visa categories.

Clock is Ticking for Responses to UK Government Consultation on Copyright and Artificial Intelligence

Ever since the emergence of generative AI, a major concern for all participants has been the extent to which copyright works can and should be used in training AI models.
The application of UK copyright law for this purpose is disputed, leading to inevitable high-profile tension between, on one hand, rights holders keen to control and be paid for use of their work and, on the other, developers who argue that this legal uncertainty is undermining investment in, and the development of, AI in the UK.
Whilst cases are making their way through the courts in the UK and further afield (such as in Germany[1] and the US[2]) on this issue, there have been frequent calls for specific legislation (including by the UK government itself, which has publicly stated that the status quo cannot continue).
As a result, the UK government has launched a consultation[3] open until 25 February 2025 inviting interested parties to submit feedback on potential changes to UK copyright legislation in light of AI. The options set out in the consultation, and on which feedback is sought, range from doing nothing through to the introduction of broad data mining rights which would allow use of copyright works for AI training (including for commercial use), without rights holders’ permission and subject to few or no restrictions.
The Options
The consultation invites feedback on four potential options under consideration:

Do nothing and leave UK copyright and other related laws as they are – essentially this would defer the matter to the courts to resolve on a piecemeal and ad-hoc basis. Whilst feedback on this option is invited the consultation makes clear this is not an option looked upon favourably by the government, given that it would prolong the current legal uncertainty.
The opt-in model requiring licensing in all cases – this would strengthen copyright protection for rights holders by providing that AI models could only be trained on copyright works in the UK if an express licence to do so has been granted. This option is likely to be popular with rightsholders, but at odds with the government’s desire to turbocharge the AI economy in the UK.
A broad data mining exception – this would follow a similar approach already seen in Singapore[4] (and to some extent in the US under its “fair use” standards) and allow data mining on copyrighted works in the UK, including for AI training, without the rights holder’s permission. Under this approach, copyrighted material could be used for commercial purposes, and would be subject to few, if any, restrictions. Needless to say, this option is likely to be very popular with AI developers but is the least favoured by rights holders.
Allow data mining but copyright holders to reserve their rights along with increased transparency measures – this is the middle ground between options 2 and 3, and would allow AI developers to train AI models using material to which they have lawful access, but only to the extent that right holders have not expressly reserved their rights. Any such use would also be subject to robust transparency measures requiring developers to be transparent about what material their AI models have been trained on. For rights holders, this means an “opt-out” as opposed to “opt-in” model and pro-active monitoring to identify unauthorised use.

The Unanswered Questions
Option 4 broadly follows the approach which has already been seen in the EU under the not uncontroversial text and data mining exception in the EU Directive on the Digital Single Market,[5] which has been further enhanced by the EU AI Act[6] which declared these text and data mining exceptions to be applicable to general-purpose AI models. The government’s view expressed in the consultation is that option 4  is the option which would balance the rights of all participants, although the EU approach was rejected by the previous government as being a threat to rightsholders interests.
However, at this stage it does not represent a “silver bullet” as many issues would still need to be resolved, including those set out below:

It is unclear how a “rights reserved” model would work in practice and how exactly copyright owners would be able to reserve their rights. The EU equivalent provision requires opt-outs to be machine readable, but query how this works once multiple copies are available. There is also the question of what “machine-readable” means in the context of machines designed to read anything (including handwriting).
How would such a model apply to works that are already publicly available and how does it address works which have been previously used to train current AI models? It is uncommon for legislation to have retroactive effect. This would then leave it open to debate what will happen with works that have been mined prior to the effective date of the legislation, and would leave early entrants into the AI market with a huge advantage (or disadvantage) depending on what shape any future legislation and court cases take.
Does this apply to works in non-digital formats? The EU legislation on data mining specifically refers to “automated analytical technique aimed at analysing text and data in digital form.” But how does this apply to books which are scanned in (a process which Google went through many years ago)?
What happens to AI models if all or a significant volume of rights holders opt-out? An AI opt-out could soon become ubiquitous at which point developers could find themselves wading through a significant volume of claims making the UK an unpopular location for AI development.
How will rights holders know that their material has been used? The consultation states that robust measures will be put in place to ensure that developers are transparent about the works their models are trained on, but what will be the penalties for failing to be transparent and will there be robust enforcement against non-compliance?
To what extent can and should any new legislation have extraterritorial application? With many major AI players headquartered outside of the UK, any new legislation which is limited to those based in the UK may have limited impact and an increased legislative burden in the UK could make it a less attractive location for AI businesses.

Ultimately the outcome may be collective licensing deals between rights holders and AI developers as has already happened for a number of news outlets and websites. However, that will be reliant on collective will and action by rights holders and a willingness to embrace AI, which so far has not been forthcoming.
[1] Breaking News from Germany! Hamburg District Court breaks new ground with judgment on the use of copyrighted material as AI training data | Global IP & Technology Law Blog
[2] Copyright Office: Copyrighting AI-Generated Works Requires “Sufficient Human Control Over the Expressive Elements” – Prompts Are Not Enough | Global IP & Technology Law Blog
[3] Copyright and Artificial Intelligence – GOV.UK
[4] Artificial Intelligence and Intellectual Property Legal Frameworks in the Asia-Pacific Region | Global IP & Technology Law Blog
[5] EU Directive 2019/790.
[6] EU Regulation 24/1689.
Sumaiyah Razzaq contributed to this article

Tariff Update: 25 Percent Tariff on Steel, Aluminum Imports and Other Imports Affected

The tariff dance continues, as the new administration on Feb. 10 imposed 25 percent tariffs on all steel and aluminum imports for national security purposes under Section 232, effective March 12, 2025. Although the detailed annexes of products subject to the tariffs were not immediately published on the White House website, they should be published soon in the Federal Register.
The proclamation states, among other things, that (i) a product inclusion process for derivative steel products will be established 90 days after the date of the proclamation, (ii) the product exclusion process will be revoked and no renewals or additional exclusion requests will be permitted (iii) classification of imported steel and derivative steel products will be a Customs and Border Protection priority and maximum penalties apply if importers misclassify products to evade tariffs, and (iv) duty drawbacks do not apply to these tariffs.
This action mirrors the tariffs initially imposed in January 2018 for national security reasons. However, during that period, certain exemptions were granted to key trading partners. This new proclamation reinstates the tariffs without exception or exemptions, signaling a renewed focus on protecting domestic steel and aluminum industries.
Far-Reaching Implications
The implications of these tariffs are far-reaching for U.S. businesses, particularly those in industries that rely on imported steel and aluminum for manufacturing. Companies in sectors such as automotive, construction, and manufacturing will face increased costs, potentially leading to higher prices for consumers and reduced competitiveness in global markets. U.S. businesses that rely on these materials for production could experience disruptions to supply chains and a push for diversification of sourcing to mitigate the impact of these tariffs.
Moreover, a Feb. 7, 2025, Executive Order again allows packages from China to qualify as duty-free under the de minimis program until “adequate systems are in place.” This action reverses a Feb. 1 Executive Order and applies to the program that handles millions of low-value shipments daily. The Executive Order’s instruction ”would require mail from China to go through the ‘formal entry’ process, rather than the less-burdensome informal option.”
The action imposing 10 percent tariffs on China on Feb. 1 also prohibited de minimis treatment for any shipments from China worth $800 or less. Similarly, the U.S. Postal Service announced a prohibition on all packages from China on Feb. 4 when the tariffs became effective, only to reverse the position the next morning.
According to media reports, additional tariffs are expected on semiconductors, pharmaceuticals, and other industries, as well as further reciprocal tariffs against China after imposing tariffs on U.S. goods in response to the Feb. 1 action. Trading partners, including the European Union and Canada, are expected to impose reciprocal tariffs against the latest U.S. steel and aluminum tariffs, based on media reports.

President Trump Directs US Trade Agencies to Formulate Reciprocal Tariffs

On 13 February 2025, President Trump announced that he is directing the US Commerce Secretary and US Trade Representative to report to him by 1 April 2025 on specific tariffs the United States should impose to address bilateral trade deficits with countries that maintain higher tariffs on US exports than the level of tariffs that the United States imposes on their products. These “reciprocal” tariffs are expected to be finalized soon after the Commerce and USTR reports are finalized, but the date on which they may be implemented has yet to be announced.
Key points to remember concerning this latest tariff announcement are:

There will be no additional tariffs immediately as a result of this latest announcement.
US trade agencies (primarily Commerce and USTR) are to study tariffs imposed by other countries on US exports and recommend whether the United States should impose comparable tariffs against US imports from those countries.
Value-Added Tax and other tax regimes that US trading partners use but the US does not are potentially going to be included in the tariff rate calculations for those countries. Also potentially addressed will be distortions in exchange rates caused by currency policies of some countries and “non-tariff barriers” such as regulatory requirements (e.g., country-specific product standards) that are found to restrict market access opportunities for US exporters.
The US trade agencies must provide their recommendations to the president by 1 April 2025, the same date as originally set in the “America First Trade Policy.”
Thereafter, the US trade agencies are to use their respective statutory authorities (e.g., Section 232, 301, etc.) to impose relevant and necessary remedies such as tariffs, quotas, or other measures. Such remedies are likely to be in addition to the 10% tariffs on imports from China and 25% tariffs on imports of steel and aluminum that President Trump announced earlier this month. They are also likely to include new Section 232 tariffs on semiconductors, autos, and pharmaceuticals.
On its face, the Executive Order applies to all countries, but we may see exemptions for some (e.g., Australia) with which the United States maintains relatively balanced trade in goods.

Overall, this latest trade action signals the form that eventual additional US trade measures may take – e.g., tariffs and quotas under existing statutory authorities – as well as, most importantly, that there will be a process and longer time horizon for interested parties to comment before such measures go into effect. Companies and investors with interests impacted by these issues should use this time to prepare data and other analyses and advocacy to support their interests.

‘Fair and Reciprocal Plan’ Threatens Future Tariffs on All U.S. Trading Partners

On Feb. 13, 2025, President Trump announced his “Fair and Reciprocal Plan” to “reduce [the United States’] large and persistent annual trade deficit in goods and to address other unfair and unbalanced aspects of [U.S.] trade with foreign trading partners.” At this time, the White House has only released a memorandum and accompanying Fact Sheet addressing this new Plan for reciprocal tariffs. Below are a few key observations based on the limited information so far:

Unlike the tariffs recently imposed against China and currently deferred on Mexico and Canada under the International Emergency Economic Powers Act (IEEPA), reciprocal tariffs will not be imposed immediately. The memorandum states that the U.S. Department of Commerce and the U.S. Trade Representative, in consultation with other agencies, shall initiate and investigate any harm to the U.S. from non-reciprocal trade practices of other countries after submission of the specified reports due under the America First Trade Policy Memorandum. Most of these reports under the America First Trade Policy are due April 1, 2025. 
All U.S. trading partners will presumably be subject to the Fair and Reciprocal Plan investigations, including World Trade Organization (WTO) members. Indeed, the White House Fact Sheet refers to “132 countries and more than 600,000 product lines” where U.S. exporters face higher tariffs more than two-thirds of the time. Interestingly, the Fact Sheet provides specific examples of non-reciprocal treatment by certain countries and in certain industries, such as the European Union (shellfish, cars), India (agriculture and motorcycles), and Brazil (ethanol). It is unclear if these named countries and industries will become prioritized targets for reciprocal tariffs. Ultimately, any new reciprocal tariffs imposed by the U.S. are likely to be challenged in the WTO.
The Commerce Department and USTR will be charged with investigating not only unbalanced tariff treatment by other countries, but also other nontariff barriers such as digital trade barriers, government procurement, lack of intellectual property protection, and export subsidies, among others. Thus, we may see the U.S. take action beyond imposing just reciprocal tariffs, e.g., digital service taxes. 
The Fact Sheet uses the phrase “The Art of the International Deal,” which may suggest that the “Fair and Reciprocal Plan” is intended primarily as a negotiating tactic.

New Administration Establishes International Criminal Court-Related Sanctions

On Feb. 6, 2025, President Trump issued an executive order (EO) establishing International Criminal Court (ICC)-related sanctions. The EO characterized the ICC as “ha{ving} engaged in illegitimate and baseless actions targeting America and our close ally Israel.”
The EO imposes sanctions on persons listed in its annex, which currently includes Karim Khan, prosecutor of the ICC since 2021. The EO also authorizes sanctions on any foreign person determined by the U.S. State Department to, e.g., have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality or to have provided material assistance or support for such activities or persons sanctioned under the EO. As a result of these sanctions, U.S. persons generally may not engage in any unlicensed transactions with Khan, and his property in the U.S. is blocked (i.e., frozen). The sanctions also impose travel-related restrictions. These prohibitions would also extend to anyone else sanctioned under this authority.
These new ICC-related sanctions represent one of several actions President Trump has taken under the International Emergency Economic Powers Act (IEEPA), which provides the president with broad authority to regulate international transactions in response to a declared “national emergency.” IEEPA has previously been used to target China, Canada, and Mexico.
U.S. and international businesses must carefully monitor the Trump Administration’s use of IEEPA to regulate international trade. Prohibitions established under IEEPA can take effect immediately, and non-compliance can lead to significant penalties.