Europe and UK’s Response – Critical Raw Materials Supply Chains

“To solve global warming, we have to fully electrify the entire economy, including the transportation fleet. There are currently 1.3 billion cars on the planet. By mid-century, that will be close to 3 billion, just light duty cars. To make all of those electric vehicles, as opposed to internal combustible engine, you’ll need more than $5 trillion worth of cobalt, nickel, lithium and copper. That’s incremental, in addition to all the demand for those materials, for just business as usual activities.” CEO Kurt House, KoBold.

This is just one of the many similar public statements from governments, business owners and investors drawing attention to the scale of the task ahead to transition societies and industries to a world where energy needs will depend less on fossil fuels and more on green energy and, as will be seen, is the focus of recent western government actions and policies.  Cobalt, nickel, lithium and copper are in relatively abundant supply. But that is not the case with other minerals, such as rare earths. Without these particular “critical raw materials” there will be no large-scale development of the magnets that will power the EVs and wind turbines which are crucial to the success of green energy policies in the western world.

China has dominated the global mining production of REE, the processing of REE into RE metals and alloys, and the manufacture of permanent magnets for the last 20 or so years.  Whilst China’s share of the world’s REE mining has declined in recent years, it still manufactures around 90% of all NdFeB metals and magnets. In 2018 China supplied the EU with 98.5% and the USA with 95.2% of their respective imports of RE metals and alloys.

The creation of resilient non-Chinese rare earth to magnet supply chains (NCSC) is now the focus of many western governments to reduce their reliance on Chinese imports.

What are “rare earth elements” and “permanent magnets”?

Rare earth elements (REE) are a group of 17 chemical elements that occur together in the periodic table. They are very difficult to mine because they are rarely found in economically extractable concentrations.

REE and metals and alloys that contain them are used in many everyday devices such as batteries, smart phones, catalytic converters, magnets, fluorescent lighting and much more. They also play an essential role in defence electronics in precision-guided weapons and communications equipment.

They are considered to be “critical raw materials” (CRM) because of their “critical” importance, in particular to the production of the magnets that power electric vehicles (EVs) and wind turbines.

A “permanent magnet” is an object made from material that is magnetized and creates its own persistent magnetic field – an everyday example is the simple “fridge” magnet. The strongest, lightest and most commercially available permanent magnet is the NdFeB magnet formed by neodymium (Nd) iron, and boron with praseodymium (Pr) and other REE. This is the magnet most commonly used in motors for hybrid vehicles, EVs and wind turbines.

The global demand for NdFeB magnets is projected to double this decade. The European Commission’s long-term outlook is, “In addition to rapidly rising demand driven by electric vehicles and energy storage, demand for rare earths critical for products like wind turbines could increase ten-fold by 2050”.

Western governments’ actions and initiatives.

A key objective of the establishment and maintenance of resilient CRM supply chains into the west is to ensure that the necessary components for the manufacture of the equipment and infrastructure that is crucial to achieving the transition to sources of greener energy, is increasingly independent of, and less reliant on, China.

Government support for the REE industry in general and NCSC in particular is essential if the private sector is to be able to economically produce the crucial components for the EV and wind turbine sectors. Support will need to come in many forms, including grants, tax allowances, debt financing and equity investment.

Over the last 12 months or so several western governments have announced initiatives and policies in relation to CRM which are necessary to transition to an energy system which is substantially less dependent on fossil fuels.

European Union

In September 2020 the European Commission released its Critical Raw Materials Action Plan focussing on “the most pressing need, which is to increase EU resilience in the rare earths and permanent magnets value chains, as these are vital to most EU industrial ecosystem”.

United Kingdom

The UK Government does not have a critical raw materials policy as such.

On 15 March 2021 in the course of his speech to the House of Commons, the Vice-Chair of the All-Party Parliamentary Group for CRM outlined the Group’s priorities in terms of government policy including “the development of a critical mineral midstream” i.e. the production of RE metals and alloys and the manufacture of RE permanent magnets in the UK.

The UK government’s objectives are ambitious; current policy identifies 2030 as the year when:

  • offshore wind turbines will produce more than enough electricity to power every home in the country; and
  • sales of cars with internal combustion engines will be banned.

 US

In 2017 President Trump initiated a strategy to ensure secure and reliable supplies of CRM. In February this year, President Biden ordered reports within 100 days from a variety of government agencies, identifying the risks in the supply chains for CRM including REE and policy recommendations to address those risks.

Canada

In March 2021, Canada, a major resource economy, released its list of minerals considered critical for the sustainable success of Canada and “our allies”.

Australia

Another major resource economy, Australia, earlier this year released its 10-year “road map” to create more REE processing capacity as part of a broader push to make Australia one of the developed world’s linchpin suppliers of REE and other CRM.

International cooperation

The policies of EU, UK, US, Canada and Australia all acknowledge that the establishment of NCSC to meet their projected domestic REE processing and magnet manufacturing ambitions will require international cooperation and investment.

Examples of such cooperation include:

Europe

The European Raw Material Alliance (ERMA) is an alliance of organisations from the European public and private sectors covering the entire critical raw materials value chain. Its immediate objective is to increase the resilience of EU supply chains for rare earth magnets and motors, batteries, and fuel cells.

The EU’s Action Plan highlights the need to diversify sourcing of CRM from third countries requiring “strategic international partnerships and associated funding to secure a diversified supply of sustainable critical raw materials, including through undistorted trade and investment conditions, starting with pilot partnerships with Canada, interested countries in Africa and the EU’s neighbourhood”.

US – Canada

In June 2019, the US and Canadian governments agreed to develop resilient, integrated North American supply chains for CRM. A Critical Minerals Working Group has been established and Canada now participates in the US-led Energy Resource Governance Initiative.

US – Australia

In September 2019, the US and Australian governments agreed to develop a Critical Minerals Action Plan to “improve the security and supply of rare earths and other critical minerals in the United States and Australia; increase US-Australia connectivity throughout the supply chain of critical minerals; and leverage the interest of other like-minded partners to improve the health of the global critical minerals supply chain.”

US, Canada and Australia

The US, Canada and Australia have created the Critical Minerals Mapping Initiative to assist with the building of a diversified critical minerals industry.

US, UK, Canada, Australia and New Zealand – The “Five Eyes”

There have been several press reports concerning the possible expansion of the “Five Eyes” intelligence-sharing alliance into a strategic economic relationship that pools key strategic reserves such as CRM and develops NCSC amongst its members.

In its March 2021 Report, the Polar Research and Policy Initiative recommended the creation of a Five Eyes Critical Minerals Alliance with a particular focus on Greenland’s CRM deposits.

Conclusion

It is early days yet to assess the effectiveness of these policies in the development of NCSC to produce permanent magnets that will be price competitive with Chinese producers. There is considerable private sector activity around “the development of a critical mineral midstream” (with government support) but, as The Times’ editorial on 5 April warns, “[T]o reduce reliance on Beijing, the first step is to mine rare earths in new locations”, an issue we consider in the next article in this series.

O’Neill & Borges Puerto Rico Overview 2021 for Chambers Global

O’Neill & Borges LLC asked to author an In-Depth Overview of Puerto Rico for 2021 featured in the prestigious Chambers Global 2021 Guide. The article provides an interesting fiscal, legal and economic outlook for Puerto Rico entering 2021.

 

O&B also authored the Chambers Puerto Rico Corporate Tax Guide (2019) for the Global Practice Guide published by Chambers & Partners.

Squire Patton Boggs Continues Expansion of Data Privacy Practice

Squire Patton Boggs continues the expansion of its Global Data Privacy & Cybersecurity Practice (Data Practice), with the addition of a three-lawyer, bi-coastal team from BakerHostetler, based in the firm’s Los Angeles, New York and Miami offices. Their arrival comes on the heel of the firm welcoming Alan L. Friel as Deputy Chair of the Data Practice from BakerHostetler.

The new team comprises: of counsel Kyle R. Fath New York and Los Angeles; senior associate Kyle R. Dull (New York and Miami); and associate Niloufar Massachi (Los Angeles).

“Speaking from personal experience, this is a dynamic team that will give clients a powerful advantage in creating and implementing data privacy compliance programs, commercializing data, assessing cybersecurity risk and responding to incidents and addressing regulatory changes and enforcement actions,” said Mr. Friel. “Kyle, Kyle and Nilou, collectively, bring an enriched perspective to the table, blending industry and public sector experiences that complement the complex work the Data Practice is handling. The team also counsels clients on advertising and sales practices, and has substantial experience with digital advertising and AdTech matters.”

Welcoming the team to the firm, Ann LaFrance, who co-chairs the Global Data Practice, commented, “The continued expansion of our US Data team is an important step in the strategic buildout of our global practice in this area of high and growing demand for our clients, and we are delighted to have these talented and experienced colleagues join our ranks.”

Mr. Fath has developed a practice that offers a unique blend of deep experience in counseling companies through compliance with data privacy laws, such as the CCPA, drafting and negotiating technology agreements, and advising on the privacy, IT, and IP implications of M&A and other corporate transactions. His practice has a particular focus on the ingestion and sharing of data, the implications of digital advertising (as companies look toward the so-called “cookieless future”), and assisting clients through the build-out of e-commerce and other global online platforms.

Mr. Dull, CIPP/US, draws on extensive experience investigating and prosecuting privacy and advertising law violations to advise clients on their own data privacy, cybersecurity and advertising risks. As a former assistant attorney general, he has a solid understanding of consumer protection laws, as well as domestic and international privacy laws, enabling him to counsel clients on technical, contractual, intellectual property and regulatory issues while balancing commercial and consumer interests. Additionally, Mr. Dull has experience defending and resolving privacy and advertising enforcement actions throughout the country.

Ms. Massachi, CIPP/US, focuses her practice on data privacy and protection, advertising, sales and digital media practices counseling, technology transactions, cybersecurity and breach response, and consumer protection law. Her experience includes substantive research and analysis on and application of data privacy laws, including the CCPA, CPRA, the California Shine the Light Act, the California Online Privacy Protection Act (CalOPPA), the Video Privacy Protection Act (VPPA), and the Children’s Online Privacy Protection Act (COPPA). Ms. Massachi draws on her experience to counsel clients on the development and implementation of information governance and compliance programs, including on conducting data inventory and mapping. She regularly drafts policies and procedures for providing consumer data privacy transparency and choice, as well as drafts and negotiates privacy and data security provisions for various types of multiparty agreements. Ms. Massachi also advises clients on digital media and advertising consumer protection programs, such as enhanced notice requirements for cross-device interest-based advertising and the collection of precise location data.

IFLR Asia-Pacific Awards 2021 Shortlist Announced

Conyers is once again shortlisted in the IFLR Asia-Pacific 2021 Awards.

We are pleased to be nominated as Offshore Firm of the Year this year again, an award that we won in 2020.

In addition, five of our significant matters advised by our Hong Kong and Singapore based lawyers are shortlisted as Deals of the year:-

The IFLR Asia-Pacific awards celebrate legally innovative cross-border transactions, teams and firms in the region. The results will be announced virtually on Thursday, 25 March 2021. For more information on the nominations, please visit: https://www.iflr.com/article/b1qj1khd0cnqmz/iflr-asia-pacific-awards-2021-shortlist-revealed

Fasken Clients Shine at the Infrastructure Industry Awards

Toronto (Canada) – The successes of Fasken clients were highlighted at the 2020 P3 Bulletin Awards. The seventh annual awards ceremony took place virtually on March 4, 2021. The P3 Bulletin Awards recognize and reward outstanding achievements in public-private partnerships across the Americas. Winners were selected by a panel of industry experts.

The Fasken team advised on a number of client matters that received accolades, including:

  • Windsor-Detroit Bridge Authority and the Gordie Howe International Bridge project – Gold, ESG Performance of the Year
  • Corner Brook Acute Care, Canada – Gold, Best Social Infrastructure Project
  • Regina Bypass, Canada – Highly Commended, Best Operational Transport Project
  • Belle Chasse Tunnel and Bridge Replacement Toll Concession, USA – Highly Commended, Best Road Project

The Gordie Howe International Bridge project has been the recipient of several other industry awards, including: IJGlobal’s Road Deal of the YearLexpert’s Canadian Deal of the YearPFI’s Transport Deal of the Year, the National Council for Public-Private Partnerships Outstanding Emerging Project Award, and CG/LA Infrastructure’s prestigious 2019 Oracle Project of the Year Award.

The Fasken Global Infrastructure and Projects Group works extensively with authorities, proponents, consortia, constructors, lenders and other private sector project participants in multiple jurisdictions at the federal, provincial, state and municipal government levels in the US and Canada. Fasken was recognized as North American Public Sector Legal Adviser of the Year (2018) for its expertise in Infrastructure and PPP Projects and is also a past recipient of the Gold Award – Top Legal PPP Advisor in North America (2015) and Silver Award – North American Legal Advisor of the Year (2019) from P3 Bulletin.

About Fasken

Fasken is a leading international law firm with more than 750 lawyers and 10 offices on four continents. Clients rely on us for practical, innovative and cost-effective legal services. We solve the most complex business and litigation challenges, providing exceptional value. For additional information, please visit the Firm’s website at fasken.com.

Labor Practices Antitrust Violations – Trends in Brazil and Worldwide

In article available on The Future of Antitrust e-book, published by IBRAC in August 2020, our partners Tatiana Lins Cruz and Patrícia Bandouk Carvalho, along with associate Natan Maximiano Munhoz, analyze labor practices as antitrust violations, a new target for antitrust investigations by Competition authorities.

The labor practices under analyzes include the so-called no-poaching agreements and wage-fixing agreements, as well as the exchange of competitively sensitive information about terms and conditions of employment.

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Squire Patton Boggs Builds Private Equity Growth in London

Squire Patton Boggs’ London Private Equity Practice has seen a significant increase in client transactional activity over the past 18 months, as the firm continues to invest heavily in its London team. The firm’s practice group has recently been recognised, for the first time, in the top 20 of legal advisors to companies by volume of deals globally in Refinitiv’s Global Private Equity Legal Advisor Review for the full year 2020.

Since the start of 2020, the UK Private Equity team, which is highly ranked for Private Equity Transactions – Mid-Market in The Legal 500 UK 2021, has acted on 106 private equity-related transactions, with a total deal value of £11 billion.

The firm has made five strategic Private Equity partner hires into its 32 lawyer-strong London Corporate team in the past 13 months: Ben Squires and Charles Leeming from Simpson Thacher & Bartlett and Stephen Ball from KPMG in February 2020, and Fergus Gallagher from McDermott Will & Emery and Julian Thatcher from MHMK Capital Group (and formerly Macfarlanes) in February 2021.

Recent highlights for the team include:

  • Advising Broadridge Financial Services on its acquisition of Itiviti Group, a leading provider of trading and connectivity technology to the capital markets industry, from Nordic Capital.
  • Advising the shareholders of Qmee Ltd, a data-driven rewards and loyalty company, on a majority stake investment in the company by Capital D.
  • Advising the management team of Ascential plc’s political intelligence, research and stakeholder engagement business, DeHavilland, on its MBO with Bridgepoint.
  • Advising ECI on its acquisition of CSL (Dualcom), the international critical communications service provider.
  • Advising Inflexion on its acquisition of Sparta Global, the technology and training services provider.
  • Advising Lloyd’s Register in connection with the carve-out and sale of its energy services business to Inspirit Capital.
  • Advising US corporate and PE-backed (Oak Hill Capital Partners), Safe Fleet, on its acquisition of Durite, the UK’s leading brand for electrical, lighting and vehicle safety aftermarket products for commercial vehicles.
  • Acting for the incoming management team of the Addison Lee Group, the private car hire operator, in connection with its acquisition by a consortium of investors.
  • Acting for the management team of a KKR-controlled portfolio company on its management equity plan.
  • Acting for a UK real estate-focused investor and investment manager on its logistics joint venture with a US-headquartered global institutional alternative asset management firm.
  • Advising the management team of LDC-backed ADEY Innovation, a manufacturer and supplier of products and services that improve the effectiveness of heating, cooling and water treatment systems, on the sale of the company to Polypipe Group plc.
  • Advising the shareholders of Helios Medical Communications, a global healthcare communications and strategic consultancy, on the investment by NorthEdge.
  • Advising Baird Capital and the management of Prescient Healthcare Group, a global pharma services firm specialising in dynamic decision support and product and portfolio strategy, on the investment in the group by Bridgepoint Development Capital.
  • Acting for Endless LLP on its acquisition of Amscan International, the world’s largest designer, manufacturer and distributor of wholesale party products and supplies, from Party City.
  • Advising Tenzing on its acquisition of Motion Picture Licensing Group, the world’s leading global public exhibitions umbrella licence provider.
  • Advising shareholders and management on the buyout backed by MML of Roboyo, the leading robotic process automation consultant and software provider.
  • Advising MML Capital on its investment in Waystone (formerly DMS Governance), a specialist service provider to the asset management industry, and several subsequent platform acquisitions by Waystone.
  • Advising the senior management team of ERS Insurance, the UK’s largest specialist motor insurer, on the terms of PE investment led by Aquiline and Abry.

“We are keenly focused on our London Private Equity Practice,” commented European managing partner, Jonathan Jones. “We are very pleased with how the team has developed over the past year or so, with our lateral partner hires bringing with them a wealth of experience in advising many of the most sophisticated private equity sponsors on a wide-range of high-profile transactions. They have been a perfect fit for the practice and further bolster the firm’s existing top-notch global private equity M&A capabilities, adding further depth to our highly-talented bench of lawyers in London.”

“Our London Private Equity Practice continues to go from strength-to-strength,” added Paul Mann, leader of the UK Private Equity Team. “We had an extremely busy 2H 2020, which has continued into Q1 2021, with sponsors increasingly looking at healthcare, life sciences and tech-focused investments; the deal pipeline continues to look strong in these and other sectors as our private equity clients seek to deploy their capital. Our private equity lawyers have strong sector experience which, combined with the firm’s global, multi-service platform, means that we are ideally placed to provide best-in-class advice to private equity sponsors and financial institutions on complex deals in the UK, continental Europe and globally.”

CMS European M&A Study 2021

Europe has returned to a ‘buyer-friendly’ environment, after the COVID-19 pandemic created more risk-averse attitudes. As a result, CMS’ latest annual M&A study identified significant increase in liability caps, longer limitation periods and fewer locked box deals.

The multi-year analysis of the key legal provisions within M&A agreements is the most comprehensive of its kind and is based on a proprietary database comprising more than 5,000 deals.

The study reveals that the primary deal driver for transactions continues to be buyers entering a new market (45%), a marginal decrease on 2019 (46%). Almost a third (31%) of all deals were either the acquisition of know-how or acqui-hire transactions, whilst 22% of deals were the acquisition of a competitor.

Louise Wallace, Head of the CMS Corporate/M&A Group, said:

It comes as no surprise that the first half of last year was difficult for dealmakers, with more delays and renegotiation of terms. But it was perhaps not as gloomy as many feared – we saw a strong recovery towards the end of 2020 and many corporates have confidently adapted their processes to the continued uncertainty and early shoots of ‘new normal’. The strength of equity capital markets and the resilience of private equity, with trillions of dry powder, indicates there should be an increase in transaction volumes – all of which makes us hopeful about the future of deal activity in Europe.
Louise Wallace

Stefan Brunnschweiler, Head of the CMS Corporate/M&A Group, said:

Deal volumes aside, the dynamics of deal terms playing out should be watched closely. Up until 2020, Europe has been regarded as favouring the seller. This year, we are seeing far more ‘buyer-friendly’ positions – a similar risk allocation to across the pond in the US.
Stefan Brunnschweiler

Signals of more ‘buyer-friendly’ trends include:

  • Longer limitation periods – there was an increase in limitation periods of 24 months or more (23% of deals – up 4% from 2019)
  • Increase in liability caps – the level of liability caps applying to transactions increased significantly in 2020. There were fewer deals where the cap was less than 50% of the purchase price – down to 49% from highs of 60% in 2017 – and we saw more deals where the liability cap was equal to the purchase price
  • Use of locked box transactions – slight decrease in non-PPA deals (51% in 2020 vs 56% in 2019, although the overall upward trend remains
  • De minimis and basket provisions are the market norm – applying in majority of transactions (74% and 68% respectively vs 73% and 66% in 2019)

Other key findings include:

  • Steady use of Warranty & Indemnity (W&I) insurance – popularity of W&I insurance dropped off in 2020 by 2% (down to 17%), though it was still used in almost half of transactions over EUR 100m
  • Gradual decline of purchase price adjustments (PPAs) – a small decrease in the use of PPAs in M&A agreements (44% compared with 45% for 2019), suggesting parties are seeking more certainty as to the amount of the purchase price when signing transaction documentation
  • Earn-outs remain consistent – Despite the anticipaton of more earn-outs due to COVID-19, there was little change albeit at 21% of deals. This is above the average level of the last decade, though still less popular than use in the US

Regional differences

The COVID-19 pandemic has triggered a shift in favour of the buyer in Europe, similar to the US where more ‘buyer-friendly’ positions are common. However, market practice in Europe relating to PPA has remained consistent in the 44-45% range for the past three years. This is a noticeable difference to the US where a PPA features in almost all deals (95%).

The analysis also revealed marked differences in market practice between the European regions:

  • The UK used PPAs in 54% of transactions, well ahead of France (36%) and Benelux countries (34%).
  • CEE and the Southern European countries have significantly higher liability caps (67% and 76% of transactions respectively had a liability cap of more than 50% of the purchase price), compared to the European average of 43%.
  • The take up of W&I insurance cover remains low in France, Benelux, and the Southern European countries – ranging from 5% to 20% – and has dropped off significantly in the UK (from 37% in 2019 to 27% in 2020).
  • Locked boxes dropped off significantly in the UK (30% vs 61% in 2019) but not in other European countries.
  • There was a large increase in the use of earn-outs in CEE with 20% of transactions compared to 8% in 2019 – more in line with the European average of 21%.
  • Limitation periods for warranty claims are much longer in CEE, France and the Southern European countries.
  • Arbitration was used as the dispute resolution mechanism in a third (32%) of deals. It was less popular in certain regions (UK, France and Benelux) than others (CEE, German-speaking and Southern European countries).

Download the report here: cms.law/int/publication/cms-european-m-a-study

Anderson Mori & Tomotsune Future Working System

In response to the spread of the 2019 coronavirus disease (COVID-19), our firm has set up a response team to deal with any new developments. We have taken advance measures in consideration of the safety of our clients, business partners and personnel. In light of the government having lifted the state of emergency declaration across Japan on March 21, we will implement the following measures from March 22 (Mon).

Combination of Increased Frequency of Personnel Coming to the Office and Working from Home

With effect from March 22, 2021 (Mon), we will slowly increase the percentage of our personnel working in the office. Simultaneously, our personnel will still be able to work from home to the extent that it does not interfere with their work.
Even in the case of working from home, you may still contact the office email address and the direct phone number of the attorney or patent attorney in charge of your matter. We may not be able to answer your call in a timely manner, but we will return your call wherever possible.

Non face-to-face Conferences and Meetings

We will continue to conduct conferences, internal meetings and external meetings with clients non face-to-face (by online or telephone conference, etc.) as much as possible. In addition, we will also refrain from holding face-to-face seminars.

Recommendation for staggered working hours and thorough implementation of measures to prevent the spread of COVID-19 such as by having our personnel wear a mask at all times

We will thoroughly implement measures to prevent the spread of COVID-19, such as ensuring that our personnel take their temperature before coming into the office, recommending our personnel stagger their working hours when going back to work in order to avoid rush hour, having our personnel wear a mask at all times in the office, having them wash their hands and use hand sanitizer, and ensuring that social distancing is carried out.

We apologize for any inconvenience that this may cause our clients and business partners, and we kindly ask you for your understanding.

Our firm will continue to promptly implement measures based on the policies and action plans of the national and local governments, giving the highest priority to preventing the spread of COVID.

COVID-19 comes to an end – Extension of Limitation

In view of the outbreak of COVID-19 pandemic in March 2020, the Supreme Court of India by an order dated March 27, 2020 extended the period of limitation prescribed under the general law or special laws with effect from March 15, 2020 till further orders.

On March 5, 2021 the Supreme Court reviewed its decision and observed that in view of the changing scenario relating to the pandemic, the extension of limitation has served its purpose and should come to an end.

Accordingly, by an Order dated March 8, 2021 (https://main.sci.gov.in/supremecourt/2020/10787/10787_2020_31_1501_26732_Judgement_08-Mar-2021.pdf) the Supreme Court has directed that in computing the period of limitation for any suit, appeal, application or proceeding, the period from March 15, 2020 till March 14, 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on March 15, 2020, if any, shall become available with effect from March 15, 2021.

In cases where the limitation have expired during the excluded period, all persons shall have a limitation period of 90 days from March 15, 2021. The Supreme Court also clarified that this order shall apply to limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.