Allenovery.com - Allen & Overy
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Digital transformation
2021
allenovery.com
2 Digital transformation | 2021
Digital transformation
Digital transformation, built on IT cornerstones of cloud,
mobile, social and big data, is affecting all industries.
Going digital is not just about making Setting and implementing a
sales via mobile devices, or using digital strategy requires a host
Twitter to communicate with customers. of interdisciplinary skills.
Digital adopters are making Equally importantly, going digital
transformational shifts in the way requires a significant cultural shift in
they use data all across their many organisations, particularly in the
businesses; carry out back-office way they engage with third parties
functions; manufacture, store and to deliver elements of that strategy.
transport their goods (including money);
Allen & Overy is an engaged and
and approach and communicate with
active player in the digital ecosystem.
their stakeholders (from suppliers,
We work with companies at all
to customers, shareholders,
stages of growth and development,
employees and even regulators).
from established players with scale
Some industries are seeing their and pedigree, to emerging companies
businesses profoundly disrupted making a name for themselves
by new digital entrants (think what through their energy and ideas.
Uber has done to transport, or Amazon One of our particular strengths is
to retail), while for others, the imperative navigating the cultural issues that
is to incorporate digital opportunities can arise when large institutional
into their businesses to become more organisations work with smaller
competitive within their existing markets. digital players. Our lawyers are experts
in working with our clients to produce
No industry is being left untouched
consistent and risk-conscious results
by digitalisation, although some
while preserving and encouraging
(eg financial services, healthcare,
the innovation, creativity and agility
hospitality, retail, automotive) are
that these alliances promise.
moving forward faster than others.
Agility and flexibility characterise We have the ability to field integrated
successful digital businesses and many multidisciplinary teams to help clients
companies are struggling to keep pace smooth the path for digital projects.
with innovation and to engage the From anticipating regulatory hurdles,
right teams within their organisations. to protecting intellectual property,
However, the C-suite increasingly to motivating and retaining key staff
recognises the strategic necessity and negotiating transactions with
of embracing digitalisation, and partners and suppliers, our team
digital strategy is a boardroom issue. has experience of all aspects of the
digital journey. We are able to draw
on insights from across a range of
industries to identify best practice and
mitigate risks – we know the issues
that matter, and those that don’t.
allenovery.com 3
Emerging issues
Engaging partners Culture clash Use of data
Bringing new technology into a business Culture clash can be a particularly The ability to manipulate large sets
frequently involves finding new partners. corrosive dynamic when emerging and of structured and unstructured data
Established market participants may established companies come together (“big data”) is one of the key characteristics
work with new-generation companies in investments, M&A or commercial of the digital revolution. For many
to short-cut the R&D cycle for new partnerships. It is often lamented that businesses, there are two types of big
technologies; they may buy or collaborate while established players may look to data opportunities. One relates to how
to bring new skills into the business; or start-ups precisely because they are they can take advantage of the data
they may use their partners to provide agile and nimble, trying to scale that available to them to improve the way
access to new markets or distribution culture into a large organisation is hard in which they run their business, the
channels. A fundamental question is what to do. Meanwhile, the bureaucracy of the second relates to whether they can
form that collaboration might take. big company may frustrate the start-up. monetise the data they collect through
Digital transformation is certainly driving This culture clash doesn’t start after the business-as-normal activities. There are
M&A as companies buy in technology and deal is signed, it can be a barrier while however a number of legal and regulatory
skills or combine with peers to build scale, the deal is being negotiated. To work issues that need to be considered before
but commercial collaborations are also through this, both sides need to working with big data. The first is a clear
a popular route to achieving these goals. understand the goals of the transaction understanding of relevant privacy and
Equally, corporate venturing may offer and how they might differ for each party. data protection frameworks. Where
a way to connect with early-stage They also need to understand what data includes personal information (of
companies to assess potential technologies, contributions each partner might make. customers or staff, for example), many
exert a degree of influence on the future These contributions are not only financial; data protection laws impose data
direction of the emerging company and for an emerging company ‘softer’ areas minimisation requirements, purpose
be in a good position to acquire or license like the introduction the established player limitation requirements and cross-border
technology if it looks to be shaping can make to other market participants, data transfer restrictions. Data security
up well. It is important to understand or the mentoring that might be available will also be an important concern.
the pros and cons of M&A over other to team members, could all be valuable How should you protect data against
forms of involvement such as investment considerations. Due diligence is also a possible breach? It is important
or collaboration. likely to be different; emerging companies to understand what technical and
simply don’t have the track record of organisational measures may be required
established players. Diligence will need under relevant legislation in order to
to focus more on the strength of the team, protect the data that is held. There will
the company’s references from partners, also be intellectual property considerations
investors and customers, and a solid associated with the use of big data.
understanding of the market in which For example, who owns the input data
the start-up operates. that companies are using to conduct data
analytics? Who owns the output data?
4 Digital transformation | 2021Open
Cybersecurity innovation/ Liability
Protecting IP
The more we put online, the more Intellectual property frameworks have New business models and working
we expose ourselves to the risks of a clear role to play in protecting and processes also run the risk of
cyberattack. Cyberattackers are quick promoting innovation. However, digital creating grey areas around liability.
to spot the potential vulnerabilities of new technologies also make it increasingly For example, who assumes liability
technologies and exploit them to commit technically possible to easily share ideas if a driverless car has a crash?
civil and criminal offences (and to and content, whether or not this material Current regulations mean that car
frustrate detection of those activities). has IP rights attached. Equally, in today’s owners are generally liable for accidents
Risks to business are significant and ‘smart economy’, a new IP paradigm caused by their vehicles (and are
include damage to reputation, business of open innovation has emerged where consequently required to hold insurance
interruption, financial loss, litigation, companies may bring in innovation from a against this risk). In the connected
loss of IP and confidential information, wide range of external sources, including car world, what interplay will there
and regulatory sanctions. Cybersecurity for example crowdsourcing ideas using be with product liability regimes?
is about prevention of (and/or preparation open digital platforms or working with Will manufacturers be held liable?
for) cyberattacks, but also about reaction open source software. The current IP Or imagine the case of a healthcare app
once the risk has been realised. protection framework can be difficult to which provides monitoring of symptoms
It requires an integrated approach across apply effectively to the digital world and or a reminder to take medication – could
traditional security disciplines proactively there can be challenges for IP rights the producer of the app be held liable
to understand, detect and respond management when ideas or technology for healthcare issues that arise as a
to advanced and evolving threats. born in an open source environment consequence of an issue with the app?
are commercialised at a later date. What if the issue with the app was in fact
triggered by a communications network
outage? In some countries, product
liability legislation is strictly limited to
‘products’ and not ‘services’ – in a digital
environment such a distinction may be
very difficult to make, as may questions
of relevant jurisdiction. Clearly identifying
such risks and planning for them will
be essential, as will expertise in dispute
resolution in the event of such a problem.
allenovery.com 5Our experience
Automotive Consumer & Retail Financial Institutions
– Baidu, on the data and IP aspects of its – Starbucks Corporation on a strategic – BNP Paribas Fortis on the development
open source platform for self-driving cars co-operation with the Alibaba Group aimed and roll-out of an innovative mobile
and corporate partnerships. We also at enhancing Starbucks’ digital experience payments platform in Belgium. The platform
assisted the client on a technology and building Starbucks’ online presence, was developed with Belgacom and
collaboration with leading car makers. delivery capabilities and customer base and Accenture, and integrates mobile payments,
– A leading AI company on a pan-European network in the PRC, while utilising various virtual ticketing, e-couponing and loyalty
study of civil and criminal liability regimes online platforms operated by and services programmes into a mobile wallet.
in the context of connected and offered by the Alibaba Group (including – CLS, the market-leading FX service
self-driving vehicles. Tmall, Taobao, Ali Pay, Hema and Ele.me). provider, on the launch of two new
– Fleetlogic (now part of TomTom Telematics) – Marks & Spencer, the unique own brand products: its CLSNet product (a bilateral
on several digitalisation matters including retailer, on its GBP750m food delivery joint transaction netting solution) and its related
privacy and data protection aspects of venture with Ocado, the UK’s leading pure CLSTradeMonitor product (an innovative
in-car mobility systems, including on play digital grocer. post-trade monitoring and reporting tool).
the negotiations of agreements for the – A Shopping Platform on the establishment of Our advice covered the entirety of the
development of an App for connected car guidelines for the processing of geolocation products’ development and launch phases,
systems with Pon, the importer of VW, data and the launch of geolocation-based and included advising on a range of issues
Audi and Porsche in the Netherlands; and on advertising activities in the European Union. relating to the distributed ledger technology
various technical agreements and projects platform on which the CLSNet product
– Prosus on its hostile GBP4.9bn all-cash
related to their connected car systems, can operate.
offer to acquire Just Eat, the UK-based
including agreements for connected fleet international online food order and delivery – KASIKORNBANK (KBank) on a major
management with car lease companies. service. managed services, transformation and
– Japanese telecoms operator KDDI on the insourcing project with IBM to bring about
– One of the world’s fastest growing travel
telecommunication regulatory framework the establishment of five shared IT service
booking platforms on a cybersecurity
applicable to connected cars in the context companies within KBank and bring about
incident caused by a malicious JavaScript
of a multijurisdictional survey in Europe the restructuring of KBank’s IT operations to
code contained in a web-based analytics
(all EU countries and non-EU countries) and enable KBank to pursue its digital banking
tool developed and provided by a
in 30 countries worldwide. ambitions unencumbered by its historical
subcontractor. We advised on mitigating
terms with IBM.
– Toyota on a wide range of matters relating the adverse impact of the incident occurring
to the regulatory and privacy aspects of a a few weeks prior to a Series D funding – The Bank of Cyprus in negotiating
global project to develop and commercialise round; minimising the reputational impact; an agreement with IBM for a digital
‘connected cars’. We also advised (through security measures implemented by our transformation program aimed to improve
Toyota Research Institute) on a minority client to identify and contain the impact of their online offering. The agreement
investment in SLAMcore Limited. SLAMcore the cybersecurity incident (ie precautionary consisted of several separate components,
is a London-based start-up focused on the measures, initial investigation, engagement including an outsourcing component,
development of Simultaneous Localisation of an independent expert); transparent software development and a digital factory.
and Mapping Algorithms (SLAM) for communication with the public; safeguarding – AirSwap on its development of a
Augmented Reality (AR)/Virtual Reality (VR) the interests of the company vis-à-vis the decentralized exchange for the trading of
systems, mobile robotics and autonomous subcontractor responsible for delivering the virtual currencies and related crypto-tokens.
vehicles (including drones). data analytics tool; and investigations by the – A global bank on a range of digital/data
– TASS International, an autonomous data protection regulators. initiatives including their use of cookies
(self-) driving software developer for the – Tesco on big data and privacy issues for across Europe and their approach to Adtech.
automotive industry, and its shareholders on behavioural advertising with its diverse
its acquisition by Siemens. customer base, including the approach to
its customer-facing ‘privacy centre’ and
the required changes to its external privacy
policy. This included providing strategic
advice in relation to the monetisation of its
data assets, involving its provision of certain
customer data elements to third parties in
return for digital marketing, advertising, and
online monitoring services.
6 Digital transformation | 2021Industrials, Energy & Life Sciences Telecommunications,
Infrastructure – Google DeepMind on various issues Media and Technology
relating to the potential commercialisation of
– Saudi Aramco on a range of matters their AI protein-folding product “AlphaFold” – PLDT and its mobile unit Smart
connected to its digital transformation through drug discovery partnerships. Communications on their digital
including a cloud project with Alibaba – Bupa on a multi-jurisdictional regulatory transformation programme which involved
and a partnership with Google for the advice in connection with the global launch a) a >USD300m seven-year strategic
establishment of IT cloud capabilities in of its new app, Bupa Touch. transformation partnership with U.S.
the KSA. technology company Amdocs to update
– GSK on a wide range of digitalisation matters existing core application systems and b) a
– Abu Dhabi Future Energy Company PJSC including in relation to data protection
on collaboration framework and agreements >USD50m transformation partnership with
aspects of the roll out of a new mobile global information and communications
with Siemens for Masdar City’s, Smart Grid application for Apple iOS smartphones and
and Smart Buildings. technology leader Huawei to transform
Android smartphones that will be used by wireless service delivery platforms.
– HOMA in contract negotiations with a big Pulmonary Arteria Hypertension patients to The deal involves the delivery of new
utilities and energy grid provider concerning assist them in managing their condition and systems and services integrating artificial
a complex software and infrastructure project the launch of a post-marketing observational intelligence, machine learning and other
in the field of smart grid and decentralised study of the effectiveness of a newly advanced technologies into the PLDT
energy sources for implementing the marketed asthma drug. As part of this study operating environment.
energy transition. patients will be invited to use a wearable
activity monitor to be worn on the patient’s – A large Indonesian telecommunications
– INRIX, a U.S.-based provider of location-
wrist, which will collect data on the patient’s company on the use of artificial intelligence
based data and analytics, such as traffic
activity (steps, calories, active and latent in relation to data exchange arrangements
and parking, to automakers, cities and road
bouts) and sleep patterns. and data monetisation services.
authorities worldwide, on its Europe-wide
terms for the sale of its iPhone Application – A major electronics company on the – A leading global technology provider on
through the Apple iStore. regulatory classification of different mobile the development of standard terms and
health applications and digital platforms conditions for their software-as-a-service
– Nuon Energy on the establishment
as medical devices, and on the regulatory and platform-as-a-service offerings.
and structuring of green energy provider
PowerPeers that allows customers to choose aspects related to the launch, marketing, and – Forum Group, a developer of mobile
from which green energy producer (wind, advertising of these technologies in several applications, in drafting terms and conditions
solar, biomass) they want to buy energy EU jurisdictions. for its applications, as well as on related
and advising PowerPeers on the negotiation – Exscientia Limited on a research advice on data protection and e-commerce
of software agreements with a global collaboration and licence agreement with aspects. This includes an app which allows
consultancy firm and Ponsfacio, a flexible Roche pursuant to which Exscientia will use customers to place and pay for orders in
SaaS provider in the Energy sector. its AI drug discovery platform to design catering venues. The data collected from the
pre-clinical drug candidates for Roche. customers is being sold to venue owners
– Umicore in relation to a digitalisation project
and can be used eg for targeted marketing.
with the University of Queensland. – Novartis on a wide range of digitalisation
matters including its first ever ‘telehealth’ – Euvision Technologies a specialist in
project, involving Qualcomm Life, aimed image recognition applications powered by
at the development and commercialisation artificial intelligence, on its acquisition by
of a new internet-enabled inhaler for the Qualcomm from its shareholders.
treatment of lung patients. – A technology group on the launch of an
application relating to a natural disaster alert
system in more than 50 jurisdictions.
allenovery.com 7Contacts
Laurie-Anne Ancenys Tom Butcher Saranpaal Calais
Counsel – Data protection/ Partner – Technology transactions/IP Senior Associate – Technology transactions
Technology transactions Tel +971 2 418 0414 Tel +612 9373 7588
Tel +33 1 40 06 53 42 tom.butcher@allenovery.com saranpaal.calais@allenovery.com
laurie-anne.ancenys@allenovery.com
Jane Finlayson-Brown Jim Ford Rose Hall
Partner – Data Protection/ Partner – Technology transactions/IP Head of Business Development –
Technology transactions Tel +44 20 3088 4797 Life Sciences and TMT
Tel +44 20 3088 3384 jim.ford@allenovery.com Tel +44 20 3088 3618
jane.finlayson-brown@allenovery.com rose.hall@allenovery.com
Paul Keller Tom Levine Catherine Di Lorenzo
Partner – Intellectual Property Partner – Telecommunications/ Counsel – Data protection/Technology
Tel + 1 212 610 6493 Technology transactions transactions/IP
paul.keller@allenovery.com Tel +44 20 3088 3114 Tel +35 24 4445 5129
tom.levine@allenovery.com catherine.dilorenzo@allenovery.com
David Lucking Will McAuliffe
Partner – Regulatory Partner – Technology transactions/M&A
Tel +1 212 756 1157 Tel +852 2974 7119
david.lucking@allenovery.com will.mcauliffe@allenovery.com
8 Digital transformation | 2021Nigel Parker Michael Reede Ben Regnard-Weinrabe
Partner – Data protection/ Partner – Technology transactions/M&A Partner – Regulatory
Technology transactions/IP Tel +612 9373 7731 Tel +44 20 3088 3207
Tel +44 20 3088 3136 michael.reede@allenovery.com ben.regnard-weinrabe@allenovery.com
nigel.parker@allenovery.com
Alexandre Rudoni William Samengo-Turner Peter Van Dyck
Partner – Intellectual Property Partner – Technology transactions/M&A Partner – Data Protection/Technology
Tel +33 1 40 06 50 34 Tel +44 20 3088 4415 transactions
alexandre.rudoni@allenovery.com william.samengo-turner@allenovery.com Tel +32 2 780 25 12
peter.vandyck@allenovery.com
Filip Van Elsen Nicole Wolters Ruckert
Partner – Data Protection/ Counsel – Data Protection/
Technology transactions Technology transactions
Tel +32 3 287 73 27 Tel +31 20 674 1401
filip.vanelsen@allenovery.com nicole.woltersruckert@allenovery.com
allenovery.com 910 Digital transformation | 2021
allenovery.com 11
GLOBAL PRESENCE
Allen & Overy is an international legal practice with approximately 5,500 people, including some 550 partners, working in over 40 offices worldwide.
Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. Allen & Overy LLP is a limited liability partnership registered in England and Wales
with registered number OC306763. Allen & Overy (Holdings) Limited is a limited company registered in England and Wales with registered number 07462870.
Allen & Overy LLP and Allen & Overy (Holdings) Limited are authorised and regulated by the Solicitors Regulation Authority of England and Wales.
The term partner is used to refer to a member of Allen & Overy LLP or a director of Allen & Overy (Holdings) Limited or, in either case, an employee or
consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP’s affiliated undertakings.
A list of the members of Allen & Overy LLP and of the non-members who are designated as partners, and a list of the directors of Allen & Overy
(Holdings) Limited, is open to inspection at our registered office at One Bishops Square, London E1 6AD.
UK
© Allen & Overy LLP 2021. This document is for general guidance only and does not constitute definitive advice. CS2003_CDD-59207_ADD-90554You can also read
