Understand Your Rights. Solve Your Legal Problems
In the very final UN session of the year, a handful of countries seeking to avoid scrutiny of their own human rights records are attempting to cut off essential funding for the UN's independent experts.
(New York) States including China, Russia, Israel and Belarus are expected to attempt to block the funding of key UN human rights experts today, through a resolution at the General Assembly committee which deals with finance and budgetary issues.
The UN's Fifth Committee will decide how much money is provided to finance the work of human rights experts who investigate human rights violations in Burundi, Iran, Syria, the Occupied Palestinian Territories and Belarus as well as violence and discrimination against lesbian, gay, bisexual and trans persons.
ISHR’s New York Director Eleanor Openshaw said the move is an unprecedented attack on the crucial oversight provided by experts of countries whose citizens face severe and widespread human rights violations.
'The States are trying to abuse the authority of the Fifth Committee in order to cripple the decisions taken by the UN Human Rights Council and the General Assembly. It's a few countries attempting to crush mechanisms that the world has come together on and agreed are essential to confront extremely challenging human rights situations.
'This underhand move is particularly shocking in the case of Syria. Just yesterday, the General Assembly voted to create a mechanism to help investigate war crimes in the country, but today China, Russia, Israel and Iran are trying to impede funding of a UN Commission of Inquiry that has been documenting the situation in Syria since 2011,’ said Ms Openshaw.
The assault goes beyond choking funding for work by experts looking at Syria, Burundi, the Occupied Palestinian Territories, Iran and Belarus, it is also an attempt to squeeze the resources and therefore capacity and effectiveness of the Office of the High Commissioner for Human Rights (OHCHR).
‘It’s clear that the end goal for these countries is to make sure that the OHCHR and all UN independent experts are unable to do their work, including exposing human rights violations committed within their own borders,’ said Openshaw.
In an open letter leading human rights organizations have urged ambassadors in New York to block the attack.
‘The UN has agreed that this work is urgently needed, so it’s imperative that it be properly funded,’ said Ms Openshaw.
(Source: ISHR)
The government’s Housing Minister, Gavin Barwell MP, has called the current leasehold system a “widespread problem that needs addressing” during a debate in the House of Commons to discuss the Leasehold and Commonhold Reform Act (2002).
Speaking at the end of a wide-ranging debate, during which MPs offered numerous examples of unfair and unjust practices related to the leasehold system, Mr Barwell said: “[The Secretary of State and I] have been looking closely at the issues raised in recent weeks and I can tell the House that we are both absolutely determined to stamp out unfair, unjust and unacceptable abuse of the leasehold system.”
Mr. Barwell highlighted the results of the National Leasehold Survey 2016, which showed that 57% of leaseholders agreed with the statement “I regret purchasing a leasehold property”. The Housing Minister said: “I most certainly do not feel comfortable with that level of concern right across the country... I am very keen to explore how we can promote greater transparency and fairness, and to work with all interested parties to improve leaseholders’ experience of home ownership.”
His call was echoed by Labour’s Ruth Cadbury, who promised that a Labour government would give leaseholders security from rip-off ground rents, end the routine use of leasehold for new housing developments, and cap ground rent charges.
Louie Burns, Managing Director of leasehold enfranchisement specialists, Leasehold Solutions, has been working with the Leasehold Knowledge Partnership to provide vital information to MPs on the All-Party Parliamentary Group (APPG) considering leasehold reform. The investigation by the APPG prompted the debate House of Commons debate on 20 December.
Louie said: “It is fantastic to see that Parliament is waking up to the deplorable scandal of the UK’s feudal system of leasehold. We have been campaigning for years to raise the issue of leasehold on the political agenda and to educate flat owners about their rights.
“I hope that the government will work to bring about timely and meaningful changes to improve the lives of the UK’s 4.1 million leaseholders. Abuse of the leasehold system is a growing problem; 43% of all new properties in 2016 were built as leasehold homes, so without urgent action increasing numbers of flat owners will continue to be exploited for profit by unscrupulous freeholders.”
The way in which a company treats its employees speaks volumes about the company’s morals and when this goes wrong, it can lead to the employee, much to their employer’s dismay, seeking legal action. Earlier this year, Employment Law reformations gained a contentious reaction in France and great changes have been made recently in the employment law sector; thus, this month we speak with Pascal Petrel, who specialises in Labour Law. He gives his expert insight into France’s reformation in employment law and how to advise clients on these new regulations.
When negotiating transactions in employment relations, what is the most important aspect to consider? What are the challenges with negotiations?
In individual negotiation transactions, the most important aspect to consider is overall security in a breach of contract situation. This is not only to ensure against subsequent employee litigation, but also the safeguarding of confidential information to which he had access. The greatest challenge to be addressed when negotiating a transaction is that of the agreement's general balance, for the best protection of the company's interests. Therefore, limits should be set, beyond which interest in a settlement agreement may fade.
How has the employment law sector changed over the years in France? Are there any more changes underway on which people should keep an eye?
Employment and social security law has undergone great changes in recent years. The legislature has primarily considered the simplification of legal mechanisms, mainly in terms of collective labour relations, by regulating social dialogue with workers' representative institutions. The second area of change is in the growing importance of the collective agreement as a legal source, permitting to take into consideration the needs of the key businesses and employees involved.
What is the most challenging aspect of your role and how do you overcome this?
The labour law attorney has a duty to be constantly attentive to his client, comprehend the company's social context from the very start and determine the most appropriate response in the given situation. To achieve this level of expertise, two factors are ultimately crucial: on the one hand, the Petrel Associés (P&A) law firm's more than 20 years of experience; and on the other, responsiveness to the needs expressed, seeking, prior to any legal solution, a practical solution to the problem it confronts.
As a thought leader, if you could implement legislative changes in France to facilitate your clients, where would you start?
One of the most challenging aspects of the legislation development stage, is the of the number of working hours. Hence, the first reform would be to introduce employee work schedule flexibility, subject to workers' agreement, of course. Today, too many situations related to working hours can lead to extremely negative consequences for the company financially, or even involving criminal issues.
How do you and your company ensure you go the extra mile when advising your clients on new employment regulations?
I have advised companies for well over 30 years; this is the first step in understanding the new legislation process. The second is studying new regulations, comparing them to existing ones and guiding the principles of the legal system, as understood by judges. This ensures, where legislation has not been fully realised, or not been thoroughly thought out, you are able to advise the client in the most efficient and secure way possible.
What is the most common type of case with which you deal? Is there any advice you could offer companies to avoid such case?
Many topics deal with aspects of working hours that are starting to be mixed up with new information and communications technology usage. In this matter, the best rule remains that of anticipating their use and hours of connection / disconnection, to avoid situations of overload.
What is the most rewarding aspect of your role and why?
Obviously, client satisfaction and obtaining the desired result, are the two main driving forces of our profession. This forms an integral part of the firm's quality charter.
As P&A works with an international network of law firms, how do you operate differently regarding international firms? What are the difficulties you face?
I have previously worked in New York and have worked for foreign companies for many years, mainly American ones, in cooperation with the Skadden ARPS firm. Therefore, P&A relies on its international network; it enables us to meet the needs of our international clients, primarily on the subject of international mobility. It also has an international dimension given its offices in Tel Aviv.
What do you want to accomplish achieve in 2017?
P&A has decided to update its website to better develop its communication and marketing policy by using all multimedia tools available, and through social networks.
P&A will continue to expand internationally, especially since for two years, I have been President of the Labor Law Commission of the International Union of Lawyers.
Divorce disputes can become interestingly complex for any family lawyer, and in some cases, relying on a large experienced team can be the best option. Here LM hears from Fiona Wood, Partner & Practice Group Leader in the Family Team at Slater & Gordon, on divorce proceedings and financial settlements, their potential impact on business owners, and the particular sensitivity that must be dedicated to children in some of these cases.
You are renowned for your ‘calm approach’; how do you maintain a consistent level of calm when working with sensitive cases and under pressure?
I always explain to clients the legal and practical processes involved at the outset of their divorce, how I envisage their case progressing, what I will do for them, and what I need them to do. Knowing that there is an action plan helps clients feel more proactive and confident during what is often a very difficult time. Knowing that my client and I are working together as a team to progress the case means that there should be few unexpected issues that arise, which means less pressure for both me and my client.
What are the most prominent and common issues that arise pertaining to your family clients in the UK?
The majority of my work involves obtaining a financial settlement for my clients when they divorce. All clients want to know how much money they will receive as part of the settlement, and whether a clean break settlement is achievable or if spousal maintenance will need to be paid. Many of my clients are business owners and are very worried about the impact that their divorce will have on their business.
What challenges accompany these issues and how do you navigate them?
The law that governs financial settlements on divorce is a law of discretion. This means that different judges will make different orders when presented with the same set of facts. This can make it difficult to predict what financial settlement a client will receive if they argue their case before a judge. Whilst there is usually a range of likely outcomes, this can be very frustrating for both lawyers and clients. Having done this job for nearly twenty years, I have a wealth of experience to draw upon. I also have very experienced colleagues, including one who sits part time as a judge, whose experience I also tap into. One of the advantages of working in a large team is that if you have not come across something unusual before, one of your colleagues is likely to have.
How do you deal with the mix of business and emotions in a sensitive, yet effective way? What complications arise in these scenarios when children are involved?
The end of a marriage is a very difficult time for the vast majority of those who divorce. Whilst some seem to cope better than others on a superficial level, I always try to remember that I am not meeting my client at their best. I try to be patient and understanding, but it is also important for me to remember that I am not a trained counsellor and that if my client needs that type of help I should suggest that they speak to an appropriately trained professional. Luckily, most parents put their children first when they separate, and try not to involve them in their dispute with their spouse. Sadly, in a small number of cases this does not happen and solicitors need to become involved with issues relating to the children. As a parent, I can see that this is very difficult for clients. I encourage a child centric approach to children issues and remind parents that they need to try to communicate with each other in a reasonable way for the sake of their children. Mediation is very good in assisting newly separated parents to deal with issues relating to their children. I often encourage mediation where issues regarding children arise.
This month at Lawyer Monthly, we had the wonderful opportunity of speaking with the General Counsel one of the UK’s most successful communications companies, providing broadband, TV, mobile and landline services. Mine Hifzi has worked internationally but now focuses on the UK to share her expertise and constantly push her own boundaries in order for her and her hardworking team to flourish. Here, Mine speaks about how Virgin Media constantly ‘changes the game’, the legal process behind upcoming launches and the challenges behind representing an iconic company.
What is an aspect which surprised you the most when you first began working as General Counsel at Virgin Media? How did your perception of the company change?
What struck me is how Virgin Media really lives up to its reputation as a challenger brand by shifting the status quo and changing the game. Whether that is through Project Lightning – the single largest investment in UK broadband infrastructure for more than a decade, or by questioning whether TV football fans are getting a fair deal.
Working here really pushes your boundaries. The team is extremely collaborative with a collective drive and we help each other to think creatively and differently.
My ethos and that of my team is summed up well in the David Whyte quote: “Anything or anyone that does not bring you alive, is too small for you.”
What is the biggest challenge of representing such a big company? How do you overcome this challenge?
Quite simply the size, complexity and volume of the matters the Company undertakes. I meet that challenge by having a great team. I am fortunate to have such talented lawyers who are experts in their fields and who thrive on the unexpected and unprecedented. We partner closely with the business to immerse ourselves with the business priorities and to provide wise counsel, which often goes above and beyond legal advice. At the same time, we have established relationships with external counsel who really understand our business and the markets in which we operate so that they naturally operate as an extension to our in-house team.
A key example of the Legal team’s contribution to the business is Project Lightning where our input is critical to its success. In addition to driving the contractual negotiations with multiple vendors, supply and outsourcing arrangements, we work with other departments on obtaining planning permissions and seeking reform of the wayleave framework.
At the same time, Virgin Media has launched its new TV proposition to ensure our customers have the best way to watch the best TV, today and in the future – a new set top box, a revamped TV Anywhere proposition and Virgin Media Store – a digital locker. The lawyers have been a valuable part of the team driving the necessary deals forward and abandoning predictable thinking to help obtain the necessary rights to future proof the deals.
How do you ensure that you receive the best outcome for your company, whilst adhering to Virgin Media’s policies?
Our policies are there to enable the Company’s success and protect the best interests of the Company, its employees and its customers. The policies have been put together to ensure they are memorable and fun and so that they spark a thought process and discussion. It won’t surprise you to hear that we are committed to ensuring our policies are fit for purpose and that we make a conscious decision about how and when to update.
In what ways are you ensuring that the legal department at Virgin Media is constantly progressing and ‘changing the game’ – how do you develop your team and keep up to date with new regulations?
We are a relatively small team but our nimbleness means we can get things done quickly and flex to meet business priorities. Our lawyers use their expertise to lean in and work as true business partners, playing to individual and collective strengths to achieve the best commercial outcome.
Our size also means there are plenty of chances for our lawyers to grasp development opportunities and get involved in matters outside their comfort zone. All of our lawyers gain direct exposure to senior stakeholders throughout the organisation and take accountability for their projects. Being part of the Liberty Global group presents further openings for new roles and we have had lawyers move internally to business roles. It is the greatest compliment when I get approached by a business colleague who identifies the talent with the legal team to headhunt them for another role within the organisation.
On new regulations, we work hand in hand with the regulatory and public affairs teams to ensure we are ahead of the curve and can influence the debate on new regulations.
In retrospect, how did your experience at Discovery Communications help you to progress as General Counsel?
When I joined Discovery in 2003, I was the first lawyer that Discovery hired outside the US. I had to build the legal team from scratch and also had to win the respect of the business as part of a cultural shift in working closely with an in-house lawyer. This clean canvas was a fantastic opportunity but brought significant challenges in proving to the business the benefits of in-house legal resources. It was a truly eye opening experience and made me realise what makes an excellent in-house lawyer stand out from the rest: the ability to be a business partner who never loses sight of the commercial objective.
My experience has taught me that the General Counsel role is really one of ‘wise counsel’ to the CEO and the business. The General Counsel should act as a strategic sounding board to the business and with their team, think creatively about the legal hooks that can be deployed to achieve the business objectives in a proactive way. It’s about adding value, closing deals and providing an independent and at times an instinctive view.
How does your international experience enable you to prosper as General Counsel?
Having held a number of international roles, I have been fortunate to work with incredibly interesting and diverse individuals across the world. Leading diverse groups of people and negotiating with people from different backgrounds and cultures opens your eyes to different ways of working. In addition, it underlines the importance of having diversity within teams.
I feel privileged and humbled by my international experience and have fond memories. To prosper I fundamentally believe that you have to enjoy what you do. The experiences I have had, and the vibrant and varied people I have met and worked with would fill many pages and I do harbour a desire to write a book at some point. In the meantime, it is my children who often benefit from my international tales. Or, on some occasions my colleagues will find me explaining legal problems through storytelling – it is a great way to capture attention!
Have there been any instances where there is disagreement when reporting to the CEO? How do you push past that and ensure the right decision is made?
Healthy disagreement is a good thing because voicing diverging opinions ensures a robust debate to ensure the right decision is made. It’s important that differences are called out so that all perspectives can be put on the table. One of my roles is to ensure the facts are presented accurately and independently so that a decision is made with full transparency.
Here Nancy B. Pridgen, Partner at the Patel Burkhalter Law Group in the US, provides LM with particular insight into employment benefits, compliance with regulatory change, ERISA litigation and the latest updates therein.
On employment matters, what are the most common issues you engage in alongside your businesses clients, whether it be employers or employees? Who are the most common clients you work with?
On behalf of my employer clients, the most common issue I see facing businesses today is compliance with the vast sea of changing regulatory and statutory oversight that employers face in the US broadly with regards to employment law. Employers need, and seek out, counsel and litigation avoidance advice on a daily basis to navigate the treacherous waters of both federal and state regulation, certainly with regard to hiring, benefits, wage and hours, termination, and everything in between. Employees tend to seek counsel when they are beginning or ending an employment relationship, whether it be a key executive seeking assistance with an employment contract containing restrictive covenants, or an exiting employee working through a severance offering.
Clients with whom I work most often tend to be human resources and benefits managers who need extra assistance with an unusual circumstance, whether it has already turned into litigation, or litigation is a very real possibility. I also do a lot of work with other attorneys who need assistance understanding the intricacies of employment law, or specifically, ERISA litigation.
You have dealt with almost every type of employment matter possible; which of these stands out to you as the most challenging segment to confront with a client? Please explain why.
ERISA litigation is one of the hardest areas of the law for individuals to understand. It has concepts – like deferential review of benefits determinations made by experienced administrators – that can be counterintuitive. There are numerous procedural hurdles that must be successfully cleared in order for a claimant’s case to proceed, unheeded, in federal court. These hurdles can provide traps for the unwary, but also provide opportunities for employers, plan sponsors and fiduciaries to keep the bulk of the decision-making in the hands of professionals responsible for shepherding claims through the administrative process. There are pros and cons to any process, of course. But once the process is mastered, ERISA litigation fits into the mold of other employment litigation – there is always a story to be told, usually with colorful characters and facts, and an interesting history behind the current dispute.
Have there been any recent US legislative or caselaw developments that would affect the way you conduct litigation matters surrounding employment benefits?
While the statutory and regulatory changes to ERISA affect the ERISA compliance world, the ERISA litigation landscape actually changes constantly with regard to case law development. The US Supreme Court has recently taken on an important ERISA litigation issue in many of its annual terms, handing down pronouncements that have variously clarified existing Circuit Court splits of authority, or in some cases, very nearly revamped some aspect of ERISA law. One must stay on top of the Supreme Court precedent in order to keep abreast of this ever-changing landscape.
Could you tell LM a little about your experience in ERISA litigation and how this contributes to your thought leadership in the employment sector?
ERISA litigation can be one of the most challenging areas of the law for employers, plan sponsors, fiduciaries, and employees/plan participants and beneficiaries alike to confront. I have litigated scores of employee benefits matters, ranging the gamut between individual benefits claims and class action fiduciary breach actions on behalf of employers, plan sponsors, insurers, claim fiduciaries and claimants. My experience on both the defense and plaintiff side provides my clients with the benefit of a well-rounded and full view of their case from all angles, rather than tunnel vision. Rather than arbitrarily dismissing potentially-viable arguments based on some misplaced sense of loyalty, I focus on analysing all aspects of a case from all viewpoints, in order to arrive at a full understanding of the issues. I have found that this balance has served all of my clients well.
You often write and speak publicly on benefit claims litigation and similar topics; how do you believe this helps you expand the boundaries of your speciality field?
Despite being out of law school and in practice for nearly 17 years now, I still very much enjoy the process of learning new things, which is very important in a practice area like ERISA litigation, where the case law is ever-changing. I especially enjoy the process of preparing for speaking engagements, as it requires me to read and learn a specific topic at a breadth and depth I might not otherwise be required to do for any particular case. I have found that this expands the boundaries of my practice, as it teaches me new areas of the law, allows me to spot new issues, and prepares me to see connections that I may not have otherwise seen. It is also a great way to meet interesting people who love what they do and are adept at articulating the intricacies of their chosen field of practice.
There has been much discussed on Brexit and the future of the UK, legally, economically and socially. Some are apprehensive the UK’s departure could result in hindering the UK’s economy and international appeal, whereas some imply it will bring a positive impact by releasing some of the EU’s shackles. We speak to Daniel Cheung, the Managing Partner at Maxwell Alves with expert knowledge on Brexit; he discusses the biggest legal impact of Brexit, M&A in the UK, property development, foreign direct investment (FDI) and immigration, post-Brexit.
What recent M&A transactions, including any that your firm has conducted, indicate the UK is remaining quite strong post-Brexit? Do you feel this will continue or hither when article 50 is underway?
In October 2016, we acted for a Hong Kong company that completed their purchase of the Isle of Eriska and its assets for an undisclosed sum. The Isle of Eriska is a 360 acre island on the west coast of Scotland. It has considerable history with the island having a fortified dwelling dating back to the Bronze Age 200 BC and its earliest title deeds was recorded in the 15th century with the church as the legal owners of the island. The island has a 5-star luxury hotel, a Michelin star restaurant and a 9-hole golf course. I consider the Isle of Eriska to be symbolic of the assets and artefacts the UK provides, and together with its strong infrastructure, there is every reason to believe the UK will remain strong post-Brexit.
The general economic consensus is there will be a continuous amount of foreign investors buying into the UK but little UK-to-UK activity. The big deals require the greatest confidence as it involves the highest risk. Brexit does not correlate with a lack confidence but rather a lack of certainty. Lack of certainty does not mean a reduced rate of return as the housing bubble pre-2008 indicated certainty in the property and capital markets, but this was followed by the global financial crisis. Notwithstanding the lack of certainty, a sign the UK remains strong is shown by the agreement in July 2016 by AMC Theatres, the US cinema chain owned by China’s richest man Wang Jianlin, to buy the UK-based Odeon & UCI Cinemas Group in a deal worth £921m. Then in September 2016, Poundland accepted a £610m takeover bid by South African retail group Steinhoff International. These large M&A transactions show the UK remains strong post-Brexit.
Assuming article 50 is triggered in March 2017 as planned, the 2-year transition period will mean the UK should officially leave the EU by April 2019. I do not foresee a major change to M&A activity. For public companies, much of the content in the City Code on Takeovers and Mergers has been the same prior to the EU Takeovers Directive being implemented. Private M&A is likely to remain the same for domestic and cross border transactions because they are not subject to EU law or regulation. Indeed, our Isle of Eriska transaction was a private M&A. Many international M&A transactions are governed by English law and this is unlikely to change upon Article 50 being triggered.
What do you think will have the biggest impact on the legal sector after the UK have left the EU? What risks are you concerned about and what benefits do you see?
Property development may be impacted following Brexit due to some negative macroeconomic factors. What we are seeing is similar to the 2008 global financial crisis where banks were unwilling to lend to each other, causing liquidity to dry up. This was then reflected in 2010 with the Eurozone debt crisis with sovereigns hoarding their cash reserves at their central bank in case of potential runoffs on their bonds and deposits. The principle now is similar with there being a potential liquidity problem for development finance, particularly for the small and medium sized developers. The UK had property funds blocking investors from withdrawing their money following the Brexit vote. The lack of development finance is compounded further with a weaker pound, which increases the costs of construction materials and acts as a disincentive for migrant workers.
However, I consider that this is only a short-term blip when considering other factors in the round. Demand for UK housing exceeds supply, with around 300,000 new homes required each year. As long as there is demand, this will continue to attract foreign investors who wish to invest in UK property. I have just completed a transaction where my China-based client has purchased a Prime Central London property for £12m and the perception from many overseas buyers it that it is now a good time to capitalise on the UK property market. With appropriate mechanisms, foreign investors can fund the development with their deposits and in return, obtain a leasehold title to their property unit, whether that be a residential unit or a commercial unit, such as a hotel. Indeed, tourism has increased with the weaker pound and therefore the occupancy rate of hotels has increased.
I do believe there should be some regulatory body for property developers, particularly when large sums of deposits have been received from overseas investors. Much thought would need to go into how that regulatory body works, such as who can act as the regulator, whether they have insurance and re-insurance, use of hard or soft law, individual accreditations and membership, sanctions, etc. Regulated solicitors acting as the regulator for property developers may be a sound premise because they are in the “field” of daily property transactions, they have updated knowledge and can create mechanisms to govern property developers. Being in the field is important because when property developments are being funded by depositors, corporate finance is involved with the chain leading up to structured finance; having updated knowledge of the financing structure is crucial and will dictate how the regulatory body will govern property developers. This regulatory body can then provide a safer infrastructure for UK property investment which will fuel a higher demand from overseas investors that will provide mutual benefit.
Although the single market has been important for the UK, I consider the alternative had UK voted to remain in the EU. With the European Banking Union (EBU) being implemented to stem the Eurozone debt crisis, UK would have had further difficult decisions to make as to whether to opt-in or opt-out of the EBU, with both options having its own issues, such as: whether opting-in would result in the UK becoming less attractive to other global financial centres; or by opting-out, whether they would have a say in EU banking policies where Eurozone members automatically have the voting rights. EU’s lack of a political and fiscal union would have been issues at the forefront of UK’s involvement but with Brexit, one view is the benefit to the UK is they are now negotiating business deals for themselves rather than having to consider the impact to the other EU 27 countries.
As most people are aware of the disadvantages, do you see tighter immigration regulations and, if decided, a restriction on free movement, benefiting the UK in regards to their economic developments? What immigration regulation changes do you think corporate businesses should be aware of?
Just as I have explored the legal and economic factors for M&As and the property market, I think it is important to look at this too when discussing immigration. In terms of foreign students, research from PwC in 2015 showed foreign students brought in a net benefit of £2.3 billion to the UK economy. The universities in the UK are world-class and there is mutual benefit with the students gaining their degree, the universities profiting from their course fees and the UK benefiting from the students’ expenditure whilst in the UK. To restrict foreign students entering the UK may be a detriment to the universities as well as the UK economy.
Over the past 5 years or so, immigration law has undergone fundamental changes which mainly stems from “Immigration Rules” being upgraded to “hard law” status where its rules are fully enforceable by the Home Office. To make the rules clear and transparent, most appeal rights have now been extinguished and instead, the Immigration Rules dictate whether or not one is to be granted their visa, as decided by the Home Office (or immigration officer). With its hard law status, little discretion is afforded to the applicants and indeed, there is no “near-miss” principle – you either comply with the rule or you don’t. The immigration regulations are already quite tight and it is hard to see scope for tightening it further, other than how EU migrants and students are to be treated following Brexit. For corporate businesses, there is a strict Sponsor Licence regime which is essentially a licence for an employer to recruit a limited number of foreign workers. To get a Sponsor Licence now requires a business plan explaining why potential foreign migrants may be recruited. Only skilled workers can be recruited, measured against level 6 of the National Vocational Qualifications and there is a minimum salary payable, depending on the job category. Before foreign workers are recruited, employers need to conduct a “Resident Labour Market Test” showing there are no suitable domestic workers able to fulfil that job role.
The Home Office have been strict in applying the Resident Labour Market Test. On the one hand, rules need strict enforcement so that it is clear and transparent. On the other hand, perhaps a ‘free market’ approach is more suitable where the employer has greater flexibility in recruiting workers it considers appropriate to their business. Ultimately, there may be negative externalities with strict rules and enforcement being made to reduce net migration, with a risk the UK becomes less attractive for foreign students or foreign employers. What I consider crucial in all this is the principle of fairness and democratic accountability without straining public resources, particularly when appeal rights have been extinguished. We have the Migration Advisory Committee who advises the Home Office of migration issues and much of the information relates to the UK economy. Perhaps a further institution can be established to review and advise the Home Office of their method of rule application and enforcement with its principles of fairness and democratic accountability being mandated. This can then promote transparency in the Home Office’s workings. In light of my answers given above, in relation to M&As and Property purchases, this transparency will hopefully promote foreign direct investment into the UK.
In terms of this FDI, such as investment from China, do you foresee any limitations?
If I use the analogy of the oil and gas industry where the two main players are the Host Government (HG) and the International Oil Companies (IOC): HG requires the capital and technology of IOCs in order to explore, develop and produce oil, and upon the oil being sold, both countries’ economy benefits. What governs their actions is their negotiated contract, which is influenced by the HG’s law as derived from their political preferences or local content. Here, the UK is the HG and seeks an investor in China, who is the IOC. This is exemplified by projects such as Heathrow’s third runway expansion where China Investment Corporation own 10% of Heathrow Holdings. The issue for the UK is how much FDI they are willing to accept because political and local content issues arise, such as housing prices and immigration issues involving the use of foreign workers. If the UK suddenly changes its law, this creates a paradox to the very thing that attracted foreign investors in the first instance - the UK having a stable regulatory and legal system. The oil and gas industry can have a stabilisation mechanism so that the IOC (investor) does not become worse off than when they first contracted with the HG. We saw increased stamp duty rates for second home owners in April 2016 that followed consultation from December 2015. Akin to changing the monetary policy, the UK has the power to further tighten property purchases such as increasing income tax for buy-to-lets. Ultimately, and as touched upon above under the immigration section, what is important is the principle of fairness and democratic accountability so that the UK’s stable legal system is maintained for the benefit of both the UK public and overseas investors.
How do you measure your success?
Law firms have billing targets as companies have sales targets. However, I do not consider this as the measure of one’s success as the legal profession involves a lot of valuable non-chargeable work, particularly in my role as the firm’s Managing Partner. I consider my success should be measured against each client’s individual case adopting a qualitative approach with the ultimate question being: has the job been done? If it has, both parties have benefited and we both move on to the next project. If the job has not yet been done, I need to ask myself whether things can be done to make it complete, or as complete as it can be pursuant to the client care letter. My success is invariably dependent on the percentage of successful cases that we, as a firm, can complete.
Looking at the Romanian personal injury landscape, in particular regards to insurance law, here Lawyer Monthly talks to Virgil Melnic, of Virgil Melnic Law Office (VMLO), a boutique law firm specialized in insurance. Virgil briefly discusses the latest developments in this segment in Romania, and touches on the firm’s work and challenges in the insurance field.
How do you think Romania stands in regards to personal injury law developments, especially in comparison to neighbouring countries?
Romanian insurance law no. 136/1995 has been amended and completed many times in order to meet EU Motor Insurance Directives.
As you only work for victims, do you have to alter the way you practice the litigation process? What do you think you do differently than your opposition?
I am a plaintiff lawyer working only for victims, and in VMLO embraced Cross-Border Litigation due to networking facilitation. The litigation process for VMLO has become exclusively focused on building a case rather than taking care of Opponent; to steer the Judge in just following the facts and state the law - this is the golden rule in courts. To eventually settle a case in Romania, most would go before the courts.
How do you think Romania has developed over the years in regards to personal injury law; are there any new regulations arising that people should be aware of?
Mainly we foresee two emerging practices: based on law where victims receive real damages according to their rights, with the addition of moral damages. Secondly, where the Defendant is able to impose the insurer’ internal regulation despite the law.
What are the most challenging type of case you deal with and how do you overcome this challenge?
Injured victims where it is really difficult to assess future damages. VMLO has to employ best practices, with reference to western practices.
Have you seen a significant increase in clinical negligence or personal injury claims in Romania? To what do you attribute this?
Personal injury claims are more common today less than before. The same goes for clinical negligence. With the absence of a penal trial, the victim must pay the court fees.
In the UK, the government is clamping down on the ‘unacceptably high’ number of personal injury claims; is this an issue in Romania, whereby clients may take advantage of their insurance policy? How do you think this should be dealt with?
Romanian clients just have recently been enabled the possibility of acting on their insurance policy, and it takes time before we can see what’s going on; the law just changed.
As personal injury can involve sensitive cases, how do you deal with a negative outcome of a case and reassure the victim you are defending?
VMLO is commonly the winner, but the case of any negative outcome we head to ECHR.
What is the most common type of personal injury case you deal with and why do you think it is so common?
Cross-Border cases, especially when a family with children is in need. Foundation became used with legal financing, a new concept.
Is there anything else you would like to add?
Before 1990, the insurer was the State company; after that we had investors coming in with foreign capital. In their first years, they could profit double-digits, while in recent years the situation has changed. Romanian consumers have begun to learn about their legal rights and the courts have granted larger damages. As lorries from Romania went through Europe, the picture has changed, while TPL premiums are increasing. Dealing with it today is quite a disgraceful burden.
Another note, is that now at VLMO we measure success using a Bonus Malus system, something which prominently indicates how well our practice is doing and motivates our team to work to the best of their ability.
In recent years India has made significant moves towards achieving a more evolved and harmonized IP environment, both for the benefit of domestic and foreign stakeholders. The results of some such initiatives have already been experienced and with more in the pipeline, Lawyer Monthly here talks to Manisha Singh, Founder Partner at LexOrbis, India’s premier IP law firm, who details the latest shifts in the Indian IP Landscape.
Are there any new movements and progressions in IP that are worth following?
With the assumption of responsibilities in 2014, the Government has taken several significant initiatives to improve Indian IP laws and systems at an international level. One of the most remarkable achievements was India adopting a National IPR Policy to drive innovation culture to create valuable IP assets and provide robust IP administrative and enforcement systems. Some of the key highlights of the national policy are as under:
How do you feel India compares to other (Western) countries in regards to their IP and Trademarks laws?
In the past three decades, since India opened its economy to the world, the Indian Courts have played a very significant and proactive role in introducing some of internationally well-established legal principles to Indian IP jurisprudence. Like the US trademark laws and unlike the Europe Community trademark laws, Indian Trademarks laws follow the ‘first to use’ system. However, some early decisions of the Indian Courts have further expanded the scope of use to include ‘first use’ anywhere in the world, which resulted in a trans-border reputation of the mark in India.
To establish trans-border reputation of a mark, the Courts relied on advertisement and promotional materials, including in in-flight magazines, which were not even directed at Indian consumers. This expansion of scope is in stark contrast to the EU’s position, where the right in an unregistered mark can be enforced only by establishing goodwill amongst the actual customers, or in the US where the mark is required to be used in domestic commerce. The Indian system worked well for foreign brand owners who couldn’t do business in India due to then prevalent policy restrictions.
Furthermore, use of a mark in India, or anywhere in the world, is not a pre-requisite for seeking registration of the mark and to acquire statutory rights. A mark can be applied and registered in India on ‘proposed’ or ‘intended to be used in India’. There is no requirement of establishing use, even at the renewal stage. However, if the mark is not used in India within five years of registration, it becomes vulnerable to cancellation. In a 2008 decision of the Intellectual Property Appellate Board even that position was diluted and the Board held that a mark consisting of an invented word cannot form the subject matter of a cancellation application, especially when the party seeking cancellation has adopted a similar mark with the intention to deceive.
With technology everchanging, how have industry relations changed? Do you think changes have been positive or have hindered legal progress?
The remarkable change that we are witnessing today in India’s IP administration system was only possible with the use of new technologies and tools. We are happy that the government was open and willing to adopt and use such tools, and was even ready to innovate new tools that suit requirement. The results are that all records of IP assets are accessible with a click of mouse, all applications are filed online, all payments are made through electronic banking systems, all documents/office actions are accessible online and sent over e-mails, the responses are filed electronically, hearing notices are uploaded online, and certificate are sent over e-mails.
We speak to Lisa Mueller, an expert in protecting unique small molecules, biologics and DNA and protein sequences that are critical to the pharmaceutical and biotechnology industries. With new medical inventions rapidly occurring and science being as inventive as ever, Lisa provides excellent insight into how IP affects the pharma and biotech industries, where her clients go wrong and how the U.S. compares with the rest of the IP world.
As a partner in Michael Best and Friedrich’s Intellectual Property Group who has extensive experience in the biotechnology and pharmaceutical sectors, can you provide an overview of how a biotechnology/pharmaceutical company would protect its IP in relation to a new product/invention?
Generally, companies in the biotechnology and pharmaceutical sectors protect their intellectual property (IP) using the patent systems available globally. Typically, companies in the pharmaceutical and biotechnology industries file patents protecting small molecules, biologics (an antibody, peptide sequence, etc), methods of treatment or unique (diagnostic) assays (for detecting and/or treating disease). In fact, the pharmaceutical industry uses the patent system quite extensively to protect its products (both small molecule and biologics) given their fairly long development time and entry to the marketplace (since these products require regulatory approval before they can be marketed).
Additionally, we also see companies protecting their intellectual property through the use of trade secrets. Trade secret protection is often important to protect unique aspects of the manufacturing process (such as cell media and culturing techniques, unique manufacturing methods, purifying proteins, unique methods of formulating a product, etc.). Really anything can be a trade secret as long as it gives a company a competitive advantage in the market place and it is subject to reasonable efforts to keep it secret.
Finally, we see companies protecting their intellectual property through the use of trademarks, such as coming up with unique brand or product name, logo and/or catch phrase to help identify and distinguish their product from other similar types of products in the marketplace.
What are common cases that you deal with?
Over 90% of what I do is global patent and product development strategy in the pharmaceutical, biotech, diagnostic and agricultural space. Most of my cases involve new small molecules, biologics, proteins or agricultural products. Where I add value for my clients is determining the strategy for getting them the best and broadest patent protection that not only protects their products but is broad enough to block others from copying their products as well as while helping them navigate and avoid any intellectual property that might be owned by any third parties.
Is there anything in particular your clients can do in order to make that process a little easier? Is there anything they tend to dismiss or not be as knowledgeable about?
I want to be a trusted adviser and an integral part of my client’s team. As such, I consider it my responsibility to endeavour to do everything on my part to learn all that I can about each of my clients and their respective industries. As their partner, my job is made significantly easier when clients include me in their product development and intellectual property protection process as early as possible. The earlier I am involved in such a process and the more information I know about the invention and potential product, the better advice I will be able to provide not only from a patent protection but also from a due diligence perspective. Also, having the inventors, who are often the most knowledgeable when it comes to the state of the prior art. provide as much information on who or what is the closest prior art is incredibly helpful.
However, sometimes this just is not realistic and inevitably things happen so we may not have as much lead time as we would like. In these circumstances, my job is made easier when clients provide as much information as possible about a potential invention or product and the prior art to allow me to prepare a global patent strategy as quickly as possible.
You mentioned you have to keep up-to-date globally; how do you keep on top of new legislations to ensure that your knowledge is at its best for your clients?
I subscribe to about 25 different blogs and new services from around the world and each day I spent time reading something from at least 5 of them. Additionally, I have relationship with law firms around the world and many of them will send me e-mail updates as soon as there is a new law or significant case that they believe I would be interested in or might affect my clients. In addition, I am the author of the BRIC Wall blog (https://bricwallblog.com/) which provides case law and law changes in the BRIC and emerging countries around the world. There is always quite a bit of change going, so I make sure to carve out time each day to make sure I am up-to-date on the latest changes going on globally.
How do you think the US stands in comparison to other countries around the world in relation to legislative developments in this area?
In my opinion, I believe that the U.S. Patent Office has done a good job. It has been very transparent in terms of its initiatives (such as improving patent quality) and has been keeping the public up-to-date regarding these changes. I think when you start looking at other regulatory agencies, such as the U.S. Food and Drug Administration (FDA), they have not been quite as timely – such as, for example with issuing certain guidances, particularly with respect to biosimilars, for example. In fact, we are still waiting for guidance from the FDA on the interchangeability of biosimilars. Originally, FDA had said a guidance would be published by the end of 2016, but now it is looking like the end of 2017. In terms of legislative developments, because this year was an election year, not much happened in terms of legislative developments for the pharmaceutical and biotechnology industries. It will be interesting to see what legislative developments occur during the next four years of the Trump administration and how they will affect the life science industry.
Can you give me any examples to what you think could be done?
As mentioned previously, we are still waiting for the draft guidance from FDA regarding the interchangeability of biosimilars. In addition, continuing on the theme of biosimilars, there is need for legislative clarity with respect to the patent litigation provisions under the Biologics Price and Innovation Act of 2009 (BPCIA) also referred to as the “patent dance”. As we have seen thus far in the biosimilar litigation that have taken place to date, there are questions about when certain notice provisions are required and also whether or not “dancing” is even required. I think legislative clarity would give both innovator and biosimilar companies more certainty and would save both sides money that could be invested in additional research to help save lives.
Finally, I think legislation to provide clarity in terms of what constitutes patent eligible subject matter, particularly for the diagnostic industry would be very helpful. The U.S. Supreme Court’s decision in 2012 in Mayo Collaborative Services v. Prometheus Laboratories, Inc., drastically changed the landscape for the patenting of diagnostic inventions in the U.S. The U.S. Patent Office and courts continue to struggle with finding the appropriate balance when applying and interpreting this decision.
What are the remedies available if these companies believe their IP has been breached?
In the U.S., there is a possibility of a temporary and/or permanent junction, although both can be rather difficult to get, but not impossible. Most typically, courts will award damages in the form of a reasonable royalty. Occasionally, lost profits will be awarded.
You were honoured as a 2016 Women of Influence by the Chicago Business Journal – can you tell us more about the recognition and what it means to you?
It was truly a humbling experience and I was extremely honoured to be selected with such other outstanding women who are working so hard and in such creative ways to foster business environments to help create the next generation of successful women. For me, the recognition means giving back and helping young women become successful so that they too can pay it forward. A passion of mine is mentoring. I never had the privilege of having a mentor during my legal career and looking back, I see where I really could have benefited from one. I spend a lot of time mentoring within Michael Best, the Cherie Blair Foundation for Women and the Best Your Own Best Blog (https://beyourownbest.com/)
What are the challenges when deciphering if an invention is truly unique or not?
Technology is advancing so quickly that it can be very challenging to decipher whether or not an invention is truly unique. One of the biggest challenges in making such an assessment involves determining whether or not you have identified all the relevant prior art to allow for a complete analysis of whether an invention is patentable as well as whether there is freedom-to-operate. As a result, it is important to have as much time to allow for a through patentability and freedom-to-operate analysis to be completed as possible. Many times, determining whether an invention is unique involves taking the results of a global patent search and sitting down face-to-face with the inventors and going through all the prior art individually in painstaking detail to find the distinctions between the invention and what is already known. While time consuming and labour intensive, many times I find that this is where we can really elucidate the patentable features of an invention and develop a story of why an invention is truly unique.
