Forensic Expert Witness Services of the Year 2016: Lawyer Monthly Magazine

Dr John Douse

BA, MA, D,Phil (Oxford), FRSC, FCSFS, F ChromSoc, MIExpE, MEWI.

I provide expertise in the fields of explosives, gunshot residue, drugs, toxicology, DNA and forensic chemistry. A full account of my casework including comments on my performance by instructing parties can be found @ forensic-expert.org.

 After Oxford, my forensic experience included 14 years at the Metropolitan Police Forensic Science Laboratory and the Forensic Explosives Laboratory, 16 years as an independent forensic expert, and 25 years military experience in the reserve (including experience culminating in becoming a Special Forces regimental demolition instructor).

 My research pioneered the current methods used for screening forensic extracts for traces of explosives, organic gunshot residue, and date rape drugs, along with the development of methods for the investigation of sexual offences.

 Asa result of this research, carried out with my ever more sensitive detection procedures, I introduced, the quality control procedures, involving the use of clean room technology in forensic trace analysis, and which procedures are now used world-wide in all applications of forensic trace analysis (e.g. DNA).

 This research culminated in my analyses carried out in the investigation of the Pan Am 103 Incident (Lockerbie), Hyde Park Bombing and Libyan Embassy siege among many other cases.

The edge that I bring to forensic expert witness work arises as a result of my ability to routinely exceed the expertise of other experts.

 This is achieved due to: a more comprehensive knowledge of the most very recent peer reviewed literature, my prior research and also practical expertise in each subject, the sheer degree to which each and every case is investigated (described by one defendant (in 2016) who was acquitted, as being “relentless"), and the ability, as a result of long experience in dealing with very complex cases, to produce concise effective reports to tight deadlines, even in the most complex and demanding cases, often where expertise in several different areas is urgently required.

 The ability to include the very latest published research results (including those released just before, and even during the trial itself) is often a game changer, as new fresh insights frequently emerge as a result of such novel publications.

 I am called upon to provide expert evidence in the most complex and serious of criminal cases (murders, major terrorist incidents, rape, assaults, drug seizures, Coroners inquests, high value insurance claims, HSE prosecutions of companies, repatriations from Syria etc.), and I have also contributed scientific evidence to several major public enquiries. I am often called in at very short notice, when other experts have been unable to assist the Court, and also am instructed by private individuals as a result of their analysis of my performance detailed on my web site.

 Since the Lawyer Monthly award, probably one of the best examples of my work in the field of explosives was completed, and which involved an attempted criminal prosecution of a major international defence firm.

 In this case, logical analysis and discussion of the evidence with the opposing expert, resulted in all of the referred complaints having been accepted to have been without scientific foundation. This outcome resulted in the saving of many millions of pounds in fines, and where the defence team described themselves as “having been delighted” with every aspect of my work.

 

What are the most common cases that you deal with in regard to forensic chemistry?

I deal with the most complex criminal cases, (often high profile), where there is a significant element of possible doubt, and where the consequences of being found guilty are likely to attract the highest penalties.

This forensic casework requires extremely detailed analyses of all scientific and circumstantial evidence and which can routinely take anything from 100-400 or more hours work. It should be noted that the analysis of the circumstantial details of cases if often critical in regard of the significance of traces of materials such as explosives, sexual offences traces and DNA. Thus such exhaustive investigations in some DNA cases have resulted in e.g. the finding that complainants may have had unrestricted access to crime scenes between the time of the claimed offence and the scenes of crime investigation.

It is readily apparent, in the cases presented to me for investigation, that if detailed and thorough investigation were replaced by a simple few hours of analysis, and acceptance of the prosecution findings at face value, then it is likely that this could in some cases result in erroneous trial conclusions.

Examples of my experience in such matters are a euthanasia case (2016), where the charge of murder was dropped upon my revealing, at the defence examination, that the presence of a prescribed, very powerful and hazardous drug, (fentanyl), had been missed by both the prosecution study and analysis of the case.

This case also exemplifies the current serious underfunding of the Legal Aid Authority, as one quarter of my fees could not be paid, (i.e. were required to be carried out pro-bono) and which situation should be noted to affect a significant proportion of all of the cases that I am involved in, regardless of the critical importance of my work to the Court in achieving the true and correct case outcome.

A similar example of the need for the thorough examination of the circumstances of every case occurred also in 2016, where a charge of death by dangerous driving appeared clear cut, but was however found, upon further investigation, to have been likely to have been due, in most part, to the very poor state and design of the vehicle, and also where much, if not most, of the drug and alcohol use appeared to have been post incident.

This situation was only revealed by my repeated and careful questioning of the highly traumatised defendant in prison, a procedure undertaken much against the considered opinion of the Court.

A further example of the importance of thoroughness in investigation involved an explosives case, where an estimated 250,000 pages of downloads were rapidly prioritised to 18,000 significant pages, then summarised into three reports (220, 96 and 26 pages each) and where all section 58 charges were dropped as a result of my detailed analysis.

 

What do you find are the most difficult cases to provide analysis for? How do you navigate these complexities?

The most difficult cases occur where time is extremely short, i.e. when instruction is received just prior to trial or mid trial.

An example of such a situation was a complex case involving chemicals, fireworks, explosive manufacture, cannabis cultivation, and medical cannabis usage by a vulnerable adult. In this case potential instruction had occurred six months before the trial at the Old Bailey, and where the report of another expert, (instructed in my place), was subsequently found to have been unable to assist the Court.

Instruction ten days before the trial (including 1000 pages, three defence visits all over the country, examination of many hundreds of exhibits, and the need to interview of the defendant - 100 Hours) resulted in the preparation of two reports (one involving explosives, and one regarding cannabis cultivation and medical cannabis usage), with the outcome that the serious explosives charges were replaced by a suspended sentence and a fireworks ASBO.

 

You have years and years of experience in several laboratories, from explosives to police labs; how do you feel this has contributed to your extensive leadership in this legal segment?

The length of experience has led to the ability to very quickly read and summarise vast numbers of pages of case files and downloads (the latter skill often being due to having previously used such downloads practically (e.g. in military explosive trials) or having read and reported on them in previous trials).

The ability and the time (as an independent expert) to search the internet effectively, without fail and in every case, in order to access the most recent papers (these sometimes being published up to the day of the presentation of evidence) and which can influence the trial outcomes, is also critical.

An example was information on the reported occurrence of instantly forming “super dense fogs” nucleating on solid particulates. Interestingly the experience of such instantly forming “super dense” fogs arose out of a prior military experience during a live ammunition training ambush exercise, on a cold November night, and where a rocket flare was observed to have caused immediate white out of the range precluding the ability to engage the targets.

The ability to draft very extensive reports (often in several areas of expertise and which may overlap) and that have the correct balance in regard of assisting the court rapidly is also important, especially when time is very short.

The ability to consider the case details from the view of the suggested intention, (e.g. by ascertaining the optimum ways of administering toxins such as ricin or nerve agents, or the most effective ways of concealing polonium), is also a critical skill and that is highly related to the experience of operating a forensic laboratory, where the possibility of every conceivable toxin or explosive must be considered to ensure that traces are not missed.

The ability to assist Counsel in Court, in a timely, efficient and rapid manner, through the provision of a wealth of challenges during the live prosecution evidence is also critical.

A recent example (August 2016) involved the need to analyse, mid trial, a notebook containing over 700 references to different legal high type drugs, and also herbal and ancient native traditional psychoactive compounds; and which was required to be carried out continuously over a week using a hotel bedroom as an office, with the production of several reports to very tight deadlines.

It should be noted that often the ability to analyse and correlate case evidence from a general scientific point of view is the skill that is required, as the cause of an effect or trace may have an origin that is not obvious to a lay instructing legal team.

Thus an issue regarding the appearance of a pair of trainers in a photograph (carried out on the last day of a six month murder trial) turned out to involve the different light in the photographic studio (compared to the scene at night) causing other patterns to arise by fluorescence (an area of chemical expertise) thus preventing an unequivocal comparison (resolved by repeating the prosecution photography of the exhibits on the last night of the trial).

Similarly an accusation of deliberate murder by poisoning by a care home was revealed to have been likely to have naturally arisen as a result of a pharmacogenetic cause resulting in the victim being unable to excrete the prescribed tranquiliser in question.

In the case of explosives the practical military experience of making and testing improvised explosives devices, (at times when such activity was authorised by the Secretary of State for Defence), having instructed others in the creation of such devices, the rehearsal of the use of such devices under circumstances parallel to those that defendants are accused, actual use of clandestine recipes, and also chemical expertise in the synthesis procedures used in explosive preparation, are all critical to being able to assist the court in such matters.

 

Over your years of experience what have you found to be the biggest and most impacting changes in technology and infrastructure that have helped your work in forensic science?

1. The process of the experts for the prosecution and defence, being required to prepare a list of points of agreement and disagreement in regard of the specialist evidence, undoubtedly has been the greatest improvement in Court procedure; especially as the complexity of scientific evidence increases, and more becomes known and understood as a result of the ever increasing rate of world-wide research. This is such an important process that it is believed that it should be made official that to have omitted this process should constitute a breach of procedure.

By this means the agreed scientific evidence can be prepared for the Court, and can allow the Judge to control the introduction of the agreed evidence to the Jury, in a manner appropriate to each case.

2. The development of the World Wide Web has also been one of the most influential resources that has assisted the analysis of forensic casework.

Thus immediate access can be gained, from an office, to all of the most recent publications; even permitting the identification of publications that can reveal new insights that can alter the outcome, right up to the trial date or even mid trial.

This phenomenon can occur in regard of the subjects both in my areas of expertise, and also in areas of significance outside of my expertise; an example, only a few days ago, being the publication of the identification of the mechanism of cardiac death of individuals during defaecation due to use of the Valsalva manoeuvre: a factor in possible alternate explanations of death due to stimulant drug abuse.

It also should be noted that it has now become critical, in this period of austerity, that every forensic expert (who has had the opportunity to read the entire casefile and medical notes, attend defence examinations, and who has had the opportunity to interview the defendant) should realise that they may have been the only scientifically trained person who will ever access all aspects of the trial evidence; and therefore that they should be constantly aware of the need for any significant forensic evidence in any area of expertise that might assist the Court, to be brought to its attention for consideration by other appropriate experts. It should be noted, in this regard, that I am frequently asked to perform this service by instructing Counsel.

Such an example of this phenomenon was the death by driving case previously mentioned, and where questioning of the defendant by myself (additionally in regard of the circumstantial evidence in the case) revealed that the vehicle was seriously under-maintained and possibly ill designed.

This finding allowed the appropriate vehicle expert, who had not had the opportunity to interview the defendant, to further investigate and opine on this new evidence and hence to influence the case outcome significantly.

In this regard the ability to relate to a highly traumatised individual and gain their confidence in order to try to elicit the truth is yet another essential skill of a forensic expert.

3. The advances in Short Tandem Repeat DNA technology has inevitably advanced the forensic study of criminal scenes.

It should be noted that while in England DNA-17 technology has been introduced, which provides greater discrimination especially in mixed profiles, the Scottish Laboratory now has deployed DNA-24 which has potentially even greater discriminatory power.

It should be noted that reproducibility of duplicate profiles will need to be improved if human interpretation is to be replaced in part by machine interpretation.

4. The concept of UHPLC combined with Tandem Mass Spectrosopy (especially at high resolution) has allowed the more facile screening of forensic samples for very low traces of drugs.

However it should be noted that the need is once more being recognised (knowledge lost on the closure of the Forensic Science Service) that in forensic science investigations, samples must be analysed for every possible drug, and not just for a fixed number of the variants most likely to be encountered.

An example of such a situation was the euthanasia case mentioned above, where fortunately as a result of my thorough study of the case file, and re-interrogation of the electronic mass spectroscopic record at the defence examination, the more likely true reason for the death in this case (the presence of fentanyl) was able to be ascertained, and the murder charge abandoned.

However it should additionally be noted, in this case, that it was fortunate that this was a prescribed drug and thus its administration was therefore recorded.

Such an opportunity in other cases might not be available if an illegal drug was implicated, and where the possibility can be seen to have the potential to exist that a significant contributing toxic compound might have the potential to remain unidentified.

 

As an expert witness on the array of chemicals, materials, and the impacts thereof, to what extent do you get to engage the full capacity of your expertise?

Every case, however seemingly simple, is unique and must be exhaustively investigated in regard of circumstantial, medical and analytical evidence; in order to eliminate possible innocent factors and occurrences that could affect the outcome of the case.

This requires in every case a reanalysis of the entire literature of the scientific subjects involved, in order to be certain that no new research has been published and that might have the potential to provide new insight into the case situation.

A recent example of this was the publication of a critical new detailed paper on research into the mechanism of TATP synthesis and that was published the day before a report was completed.

In this regard instructing Solicitors and Counsel need to be aware that brief analysis of the case by a lay person can indicate which type of expert to instruct; however an alert and experienced forensic expert can often provide a wealth of other evidence that can often greatly assist the case.

 

Do you often work alone in your instructions or do you work alongside a team? What are the benefits of this?

Initially I work alone, under guidance by the instructing solicitor and Counsel, as the intensity of the study and work leading up to the preparation of a report precludes team work at this initial stage.

Later e.g. at barristers’ conferences, and also at court in expert witness conferences, the opportunity to work as a team becomes more prominent and assistance is often given to the Court additionally by this means.

Many novel defence strategies are discovered for the first time by myself (e.g. the gunshot residue defence that police cars, personnel and premises etc. had the potential to be likely to have become contaminated by gunshot residue and propellant components, this having been achieved as a result of my multidisciplinary expertise through reading research papers in the field of explosives).

I retain such observations for use when I am instructed, and at this time possess many scientific defences in a variety of disciplines that other experts may have yet to become aware of.

From changes in pension benefits, to redundancy rights and outgoing packages, employment laws mould the way businesses operate, in terms of human resources, financial impact and regulatory compliance. In order to keep abreast with the latest changes, employment specialist law firm Ogletree Deakins offers expert knowledge and advice for its clients.

 Here Carson Burnham, Head of the firm’s International Practice Group, talks to Lawyer Monthly about her thought leadership in this area, and provides insight into the simplest and most complicated of employment benefit issues that can arise, and how these can change from country to country.

 

On employment matters, what are the most common issues you advise businesses and private clients on?

My clients generally are US headquartered-multinationals with operations outside the States. They must deal with the challenges of managing employees in jurisdictions with employment laws that are dramatically different to those we understand well here, since – outside the US – employees have a contractual right to continued employment on the same or better terms as they move forward through their careers as they did on the day they were hired. From a strategic perspective, this limits any organization’s ability to make decisions that would amount to a unilateral change to terms and conditions of employment. As any leader of an organization will tell you, it is unrealistic to expect to operate in today’s world without changing corporate strategy, which in turn changes people’s jobs. My role is to advise our clients in how to implement those decisions, while staying within the legal framework available to them.

I most frequently advise on carrying out day-to-day management decisions outside the US, such as workforce planning following or in connection with acquisitions, employment terminations, establishing as an employer in a new country, implementing changes to non-US employment policies to make them consistent with one another worldwide, and executive hiring. A large part of my practice also focuses on workplace ethics investigations and their aftermath.

 

Do you work mostly alone in this arena or alongside a team? How do you apply thought leadership in your work as such?

I lead a team of lawyers in the US, the UK, Germany, Mexico and Canada who work together to resolve our clients’ cross-border matters in a way that works best for them. We also work hand in hand with lawyers from independent firms all over the world. Having come from an in-house environment prior to founding this practice here at Ogletree, I developed a staffing model for matters that is different than what one typically sees in private law practice. Rather than taking a staffing approach where partners have separate cases and associates may be assigned to the case, we approach our matters as a team, assigning two or more senior lawyers to each matter to serve as point of contact for the client and to ensure that we get their work done within their timeframe.

The remainder of the group works to support a project lead however may be necessary at the time, without regard to title. What matters is who has the expertise and how can they help. This means that at any given moment, when one of us is unavailable, others are informed and can step in to maintain our service in line with our clients’ expectations, without having to introduce new people to an issue or to reinvent the wheel. We are all located in separate geographies, so we use technology very effectively to maintain a virtual office. This works wonders in communicating efficiently and ensuring that the entire group knows when support needs to be directed in one direction or another based on urgency. Because the nature of our work requires the ability to operate flexibly across time zones, the dedication that this team has to supporting one another is what makes us successful. We take comfort in knowing we can truly rely on one other to step in and collaborate to take care of our clients.

 

Have there been any recent US law amendments that would affect the way you work with employment matters?

The continued focus on enforcing the Foreign Corrupt Practices Act on conduct by affiliated entities of US corporations impacts our investigations work, as we know that ethics issues that arise need to be viewed not just as potential violations of local law and not just as local employment- or labor-issues, but need to be reviewed and addressed with the scrutiny applicable in the US under our corporate ethics standard. The increased prevalence of attempts by employees outside the US to raise “whistleblower” claims under Dodd Frank/Sarbanes-Oxley has also affected our work, in that these claims also apply to allegations of corporate fraud on an extraterritorial basis. Although there has not yet been resolution as to whether the whistleblower protections of these laws apply to the claimants themselves, the “bounty” offered by the SEC to these potential claimants is perceived as attractive enough to continue their momentum.

 

Of wage & hours, contract breach, performance management, disciplinary, redundancy or maternity issues, which incites the most disputes in businesses and why do you think this is?

Redundancy issues. As an initial matter, these are the types of corporate restructurings that are often driven by finance decisions, and the true costs of international layoffs are rarely known to US based Finance teams. Here in the States, we consider layoffs to be generally fixed-costs, whereas abroad – in Central Europe or Asia, for example – what amounts to statutory severance entitlements rarely (if ever) reflects the actual cost of a layoff. In these regions, in fact, there are strict restrictions on the right to terminate for economic reasons, so a company is faced with having to undertake a finance-driven restructuring that would qualify as “unfair dismissal” under local law.

The practical impact of that reality is that companies are often forced to negotiate separations at much higher costs than what would appear if the statutory or contractual severance entitlements in employment contracts were the only consideration. In addition to the frustration this causes for US multinationals at the management level, it causes equal (if not more) frustration in the jurisdictions where these actions are carried out, when employees and/or labor tribunals perceive that Americans neither know nor have respect for employee protections under local law. At a time of incredible pressure at the personal level and at the corporate level, this is often when disputes arise that have long-term effects on an organization’s culture.

 

You coordinate and implement compensation and benefits practices for businesses worldwide; which jurisdictions would you say cause the most complications for your clients?

France. French employment law is among the most protective in the world, and it is commonplace and culturally acceptable for employees to routinely refuse to accommodate adjustments to rights, compensation or benefits. Further compounding matters, there are intensive and detailed procedures required in order to institute any kind of compensation or benefits practice, the failure to follow which can result in an injunction against an organization. Even when procedures are followed, each affected employee must agree to accept the new programs. The cultural conflict between how businesses operate and how employees consider their jobs described above is best illustrated in this jurisdiction.

 

How does being a member of the International Labor & Employment Law Committee, as well as many other associations, contribute towards your thought leadership in the global employment arena?

We are continuously growing and developing our service offerings and our teams based on our relationships with good lawyers, all over the world. It is through committee work like this that we are fortunate enough to meet lawyers with an entrepreneurial mindset – who understand that the world is growing smaller and smaller every day in the field of global commerce. We form close professional relationships with one another through our committee work, and develop a nuanced understanding of one another’s strengths such that we can pull together colleagues on a global basis when an urgent need arises for one of our clients. I would not have been able to build this practice and maintain its current trajectory without the generosity of my colleagues all over the world with their time, their ideas and their flexibility. It is an honor for me to be part of a community with the common goal of improving legal services worldwide.

This month’s legal game changer is one of a kind. Lawyer Monthly is proud to present Mr. Musthafa Zafeer O.V., Founder & Managing Director of Musthafa & Almana, an Asian global legal and financial advisory firm operating internationally.

Over the next few pages, Mr. Musthafa Zafeer O.V. talks to Lawyer monthly about several ways him and his firm have ‘changed the legal game’, set precedents in the development of legal talent, and changed the perspective of the legal world through their innovative initiatives.

Mr. Musthafa Zafeer O.V. also discusses the route he pursued through the years, his inspiration in becoming a lawyer, and the advice that pointed him in the right direction. With a mind for innovation, this game changer is a formidable example of a passionate and service-hearted lawyer in a complex world of shifting regulation and unreformed injustice.

Admitted to the bar in 1987, Mr. Musthafa Zafeer O.V. is in his 30th year of legal practice with rich experience in litigation as well as in non-contentious and transactional practice areas. Mr. Musthafa Zafeer O.V. is a pioneer in multi-jurisdictional issues and cross border transactions. As one of the most sought after legal expert and thought leaders in UAE, he has been instrumental in structuring and advising major investments in the region and the Indian subcontinent. He has authored several articles and opinion pieces for major newspapers, magazines and legal journals and is a permanent speaker in many legal and business workshops and seminars conducted in UAE, India, the US and the UK.

He is one of the permanent faculty members of Dubai Judicial Institute (DJI) and Sharjah International Commercial Arbitration Center (SHIAC) and his expertise in both common law and civil law makes him one of the unique legal practitioners of the current generation. Mr. Musthafa Zafeer O.V. is also a Corporate Service Provider to the RAK ICC, and the Ras Al Khaimah Investment Authority (RAKIA).

 Under his leadership, Musthafa & Almana has achieved many accolades and the firm now has a unique positioning as the first Asian global legal, business, management and FDI consultancy firm. Also, his unmatched business intelligence and legal acumen has resulted in Musthafa & Almana introducing unique and innovative concepts that help corporate entities as well as individuals to legally streamline their businesses and personal matters.

 Mr. Musthafa Zafeer O.V.’s areas of specialization include the business laws of UAE, India, the UK and the US with specific expertise in mergers & acquisitions, franchises and joint ventures. His expertise in FDI related laws of UAE, the United Kingdom and India enables him to advise and provide expert legal services to foreign investors on entry and exit strategies in various sectors including real estate, hospitality, insurance, sports & entertainment and healthcare. He is considered as a pioneer in many unique practice divisions and has the rare distinction of being the first lawyer in Asia and Middle East having expertise in Fashion Law and Music Law, apart from the conventional practice areas.

Musthafa & Almana is a firm with presence in four countries, UAE, India, the UK, and the US. The firm was founded as a law practice in India in 1992, in the state of Kerala, by Mr. Musthafa Zafeer O.V. and Mrs. Almana Zafeer, the founding partners.

 The firm’s expertise lies in providing bespoke and innovative solutions to our clients’ requirements, while leveraging our deep understanding of the unique cultural and commercial nuances that exist in each jurisdiction that we operate under. Our clients span multiple industries and sectors and range from start-ups to government entities.

 Our experience has enabled us to capture the true spirit of doing business. We are passionate about innovation, entrepreneurship and law. Consequently, we evolved from a full service legal firm in India to a business and FDI consultancy firm, growing organically with the needs of our clients.

 For over two decades, we have placed emphasis on fostering long lasting relationships with our clients and other key stakeholders in the jurisdictions we operate in. The depth and scope of our advisory services and our unrivalled understanding of the business dynamics of our focus industries distinguishes us from our competitors.

 In 2015, Musthafa & Almana launched two of Mr. Musthafa Zafeer O.V.’s unique and innovative concepts, which aim to support aspiring entrepreneurs and established business groups namely MASS (Musthafa Almana Start up Support) and IAS (Internal Arbitration System).

 Another project we have launched is Destination Dubai – Legal Route for Investments, our flagship platform for facilitating UAE inbound investments. We have partnered with a range of state and federal institutions for this purpose. As a trusted advisor of longstanding repute in the region, Musthafa & Almana plays a key role in attracting strategic and financial investments to the Dubai jurisdiction which provides a robust and welcoming investment environment. More information on this and all the other projects we engage in can be found on our website at www.musthafa-almana.com.

 

WINNER GOLDEN PEACOCK AWARD 2016

In 2016, Musthafa & Almana was awarded the prestigious Golden Peacock Innovative Service Award 2016 for creating a legal framework for the unique ecosystem comprising of the innovative initiatives listed above, among others. The Award instituted by the Institute of Directors, India is regarded worldwide as a benchmark of Corporate Excellence. The Award jury was headed by Mr. Justice Venkatachaliah, former Chief Justice of the Supreme Court of India and it was presented by His Highness Sheikh Nahyan bin Mubarak Al Nahyan the Hon’ble Minister of Culture, Youth and Social Development, UAE at a glittering Award function held in Dubai on 19th April, 2016.

 

Why would you say you are a Legal Game Changer within your field?

All throughout the globe lawyers depend on litigation and arbitration as a means of service and business, but these are two bi-products of the sector, and any industry that depends on bi-products cannot have thriving businesses. This scenario is exactly what has happened for the legal world and its lawyers.

Our initiatives, which tackle this scenario, are what makes our firm a game changer; including our first ‘Legal Lounge for Business’, which we launched in 2007. The game began to change when we started illustrating to the public and to businesses that law is a positive tool. In this day and age, most see the law as a negative object, but it should not be seen as such, and through this initiative we have tried to change this perspective.

Another concept or platform which we have launched under our banner is the Musthafa Almana Startup Support (MASS), which we launched in 2015, and is in fact the brainchild of our elder son, Azhan Backer, who is the CEO of MASS.

MASS is uniquely designed to enable groundbreaking ideas to crystallize into change-making organizations. We do not focus on the traditional metrics. We ensure that resources, be it capital or time, flow into ideas that have the power to transform societies and communities. We are looking to enable a paradigm shift in the way capital is being employed today.

Through MASS, we serve as a platform for seed-stage and early-stage companies that address key global challenges and leverage our extensive expertise in the legal, financial, technical, and public sector domain to scale up these companies. We are breaking the conventional labels that are employed today and we look to transcend the role of a traditional VC or an incubator and are committed to create a platform that can blood innovative ideas. We want to work with entrepreneurs and entities that share our vision to create micro and macro ripples in the system.

Another game changing contribution is in the dispute resolution domain wherein a significant role has been carved out for legal professionals to use their negotiating and problem solving skills for resolving issues without taking them to Courts. According to me, the first step in solving a problem is in recognising that there is one and then look at it judiciously, ethically and morally. It is this concept that has been included in the IAS project. Since its introduction we have been flooded with requests to resolve issues using the platform, and I am proud to say that within 10 months of its introduction we could resolve a major dispute between a Business Corporation in UAE and their Counterpart in India, which was in the courts for more than four years, over the proprietary rights of the business in India. We managed to reach out at a settlement through sustained dialogue and applying the IAS methodology, within just six months of the matter being put into our Internal Arbitration System.

Our latest initiative on the innovation front makes us the real game changer; the first ever Legal Innovation Centre, namely Musthafa & Almana Legal Innovation Centre (MALIC), which will be located at Smart City, Kochi, India, and is a state of the art facility, the first of its kind, dedicated to testing, launch and incubating start-ups in the legal industry in Asia & Middle East.

Many older lawyers respond to each new advent of technology in law with either studied indifference or technophobic bravado, ‘I’m useless with computers and proud of it!’ But openness to, and affinity for, the newest tools of the legal trade are now fundamental to competent lawyering (and in several jurisdictions, an ethical requirement too). Software is daily growing its capacity to perform legal tasks. Law is poised to finally leverage its enormous stores of data, and you’ll need to know the analytics involved. Law will never again be an exception to the rule. The basic concept of MALIC is to bring law & technology together for the betterment of communities.

You can see that we started as a normal law practice in 1992, and have since evolved ourselves into a global consulting firm, and now the first legal innovators on the move, and I feel that it is this unique and unconventional approach that has given us the tag LEGAL GAME CHANGER.

 

How comprehensive is commercial law in UAE in? Do you think there is room for more clarity? How does this compare to the UK/US?

When we talk about any legal segment, we have to approach it pertaining to the legal system that is in place. Although the core principles of law in the UAE are drawn from Sharia law, most legislation is comprised of a mix of Islamic and European concepts of civil law, which have a common root in the Egyptian legal code established in the late 19th to 20th centuries. The French influence is most clearly demonstrated by the adoption of the civil law by most countries in the region, similar to those in European states, rather than the common law system in the UK.

In addition to specific legislation covering agencies, company law, labor law, and intellectual property, the UAE has enacted civil and commercial codes. In the constitutions, Islam is identified as the state religion as well as one of the principal source of law. However, although the principles of Sharia influence criminal and civil laws, the direct influence of Sharia in the UAE is primarily confined to social & personal laws, such as family law, divorce or succession.

When you look at it from this perspective, our commercial legislation can be assimilated to that of commercial laws in Europe. In terms of clarity and transparency, from a foreign investment perspective, almost every country has programs implemented for the purposes of attracting foreign investment, but not every segment is open to FDI.

In UAE, foreign investment regulations could be clearer. At its core, one primary rule is that all domestic mainland limited liability companies shall have a UAE National as 51% equity shareholder in the business, leaving only 49% available to the foreign investor, even though he has invested in full for the business. However, in UAE’s ‘free trade zones’, which are scattered throughout Dubai, Abu Dhabi, Sharjah, Fujairah, Ajman, Ras al Khaimah and Um Al Qwain, foreign investment can take place in the form of 100% ownership.

Having said that, for the last 40+ years people have been investing here, and it’s safe to say that UAE is quite a young nation, both in terms of law and industrial and financial growth. The legal systems of the UK and the US, for example, have been established for over 400 years, with a history of progress throughout. Therefore there cannot be a comparison between the legal systems there and that in UAE.

In addition, UAE has been the first country in the GCC, and Dubai has been the first Emirate in UAE, to have a dual legal system; we have the Dubai International Financial Centre (DIFC) Courts, which is a common law Court which deals with only commercial disputes, and we have Dubai Courts which follows Civil Law, UAE’s primary legal system. This has proved very positive, by the works of the government, in allowing investors to feel comfortable and safe,

as they have a fantastic and advantageous infrastructure to do business.

 

What legislative developments in commercial law would you like to see happen in UAE?

My main playground, in terms of common law, is India, where I started my career. In India, the law is as transparent as it can get, and the nation has made huge steps in recent years. UAE is now catching up with that, and has recently introduced many new legal directives.

This month the World Economic Forum (WEF) declared UAE one of the safest places in the world to do business, and alongside other common law developments, also in several of UAE’s regions, we are increasingly excited about the future of this nation, and what our firm can do to contribute.

 

What major differences and similarities have you found between commercial law in UAE and its neighbouring Middle East jurisdictions?

UAE’s Legal System, as per the other legal systems in the Gulf, is usually quite simple. While comparing the neighboring jurisdictions I would rather confine to GCC jurisdictions, and in my opinion those unfamiliar with their workings can find this region very difficult. The fact is that these systems are completely different to those in the west, with a whole different language, which makes it worrying for those who want to transact in business in the UAE and the Gulf states.

Although these systems are different, the basic legal principles and structure are logical and understandable. They have evolved over many centuries, in a similar way to the west and, especially in the UAE, are adapting to the changing needs of society with new developments in thinking for a modern age. More changes in commercial law have also liberalized legal regimes, creating a more open and understandable environment for foreign businesses and investors.

Amongst the Middle Eastern nations, UAE is far ahead in terms of legislative development. Following Dubai’s model, Abu Dhabi has also opened a common law Court called ADGM Court, and so has the Qatar Financial Centre, which has introduced a common law court as well as an arbitration centre.

I would like to see a similar progression and development in Saudi Arabia, a nation that is becoming increasingly idyllic for investment, where more and more sectors are opening up to commerce, and where the market is huge. Saudi Arabia is only just about getting on its feet, and while for now we don’t have many clients in Saudi Arabia, we have built relationships and connections on the legal front. Unfortunately in Saudi Arabia, foreign law firms are not permitted to operate, but recently we have received several invitations to engage in matters there, especially since we started provided consulting services.

 

As a game changer, how do you assist entrepreneurs and start-ups in their legal matters?

As mentioned earlier, one of our latest initiatives has been the introduction of the ‘Legal Innovation Centre’ in India, which should be up and running in 2017. Although similar centres exist in the US and Canada, there they are administered and funded by the government, while in this case, the centre is governed by a private sector entity, making it a first of its kind.

One of the concepts this incorporates is that of ‘legal incubation’ for young legal practitioners. I began my legal career like many lawyers do, first as a trainee, then a junior, an associate and so on; but this is a risky and competitive market, and in order to attract clientele a supportive system is crucial. To this end, our legal incubation segment allows young legal practitioners to come and ‘incubate’ within our firm, for however long they wish to, and at whichever stage of knowledge and experience they are at. In doing so, they can learn, develop, and grow with the support, help, encouragement and expertise of experienced peers.

As an example, a qualified lawyer may join us for ‘incubation’, and in promoting the firm’s brand and attracting clients, can be served with the assistance of our lawyers, as flexibly as they would like. He/she would have the liberty of taking a case on their own, or to be helped by our teams. By this system, these future lawyers, the general public, and our firm, can benefit extensively, throughout all the major jurisdictions we operate in.

 

What is the best advice you have ever been given and what would be the best advice you may give to young lawyers?

On day one of my first legal role, my senior asked me ‘Are you sure you want to become a lawyer?’ I said ‘Yes sir’. He explained that money would come in slowly, and asked ‘Are you prepared to wait?’ I said ‘Yes sir’. Over the years I realised that what he truly meant was: ‘Don’t run after money, if you are a good lawyer, let the money run after you’.

Secondly, the same senior once told me: ‘Even if you lose one crore (10 million rupees), you’d rather lose it than be present in a court as plaintiff, defendant, complainant, accused or witness, but only ever as a lawyer’. He wanted me to protect the interests of the people, and to never be a party to a problem or issue, only the solution.

Twenty-first century lawyers are playing a much more challenging game than our predecessors did, so we need to bring a very particular set of skills to the table. Today’s lawyers are expected to be leaders, innovators, and strategists, and are also expected to be managers, systems analysts, and business advisors. Everyone’s sleeves should be rolled up now. Nobody gets to just ‘do the work’ or ‘stay outside the business’. You need a wide range of proficiencies and capabilities, acquired and developed through exposure to best practices in several industries and professions outside the law.

It’s 2016; my advice to young lawyers is that ‘It’s time for a new breed of lawyer, a modern legal entrepreneur, more reminiscent of Elon Musk, Tory Burch, Megan Trimble, or James Dyson, than of Lord Denning.’

 

What do you find most enjoyable about your work and why?

The most rewarding and enjoyable part of my work is seeing satisfaction on the faces of our clients, once we have fulfilled their needs. With different clients, come different requirements and therefore different challenges, and each success has its own reward.

Also what I enjoy is the knowledge I gain from different jurisdictions and understanding the intricacies of various jurisdictions. When you are accepted as a global lawyer, I think that is the best enjoyable position you may experience.

What I tell my team is that our primary concern as lawyers is to bring comfort to the issues and circumstances of our clients, even if that means putting ourselves in discomforting situations.

 

What led you to embark upon a career in law? What inspired you?

My family, in Kerala, India, was very well-known for our judicial service pedigree, but in my generation I was the only one to pursue a career in law. A silly incident that happened during my school days prompted me to choose law as a career and profession.

It all started when I was on my way to school one day, and in my native town at the time, bus was how we travelled to school. Due to the overcrowding on the bus, that day I had to travel by standing on the footboard of the bus, which was actually prohibited by law as it amounts to travelling dangerously and is an offence punishable under Indian Penal Code and the Indian Motor Vehicles Act; little did I know about the legalities when I travelled on that day.

The bus was pulled over at a police checkpoint, and the inspector called me out from the bus. He questioned me, asked my name and my father’s name, and would not excuse me until he was done asking questions, despite attempting to pardon myself away.

After two days, police men in uniform came to my house; all hell broke loose. This was the first time a uniformed police man had come into our family’s home looking for an accused, whereas usually the police would come to my family house as escorts to my uncles, who were Highly Positioned Judges or statesmen. I was looked at by my siblings and other family members as a “criminal.” At that time one of my uncles was a senior leading lawyer practising in the district court, and he told me to come to his office. As I was shivering in front of him, he told me I would be called to court, and that when I am on the stand and the judge speaks to me, I should say ‘Yes, I am guilty’, and my uncle would take care of the rest.

When the day came in court, I was brought to the defence stand alongside uniformed police men, and the clerk read out the charges against me: that I had travelled dangerously on the footboard of the bus. When asked how I plead, as planned I announced that I was guilty, after which my uncle stood up and said ‘Your Honour, he is under age and therefore may be pardoned under the probation of offender effect’. The judge looked at me and asked whether I would do it again, and of course I said ‘No, Sir’, and was allowed to leave.

The relief I experienced in my heart was overwhelming, and I understood how a lawyer can give comfort and peace; at that point I decided I would become a lawyer and provide the same relief for others. This incident might have influenced my decision to choose a legal career as my life’s profession.

 

What do you hope to further achieve in throughout 2017?

On the expansion front we will be introducing services to Australia which again is a new jurisdiction. Our first office in Australia is coming up in Sydney. Also, we will be entering Europe by setting up offices in various locations. We have already finalized 2 locations to set up our offices which are Bucharest in Romania and HAGUE in Netherlands.

In ASIA we are opening in SINGAPORE and Seoul, SOUTH KOREA.  The year 2017 is going to be very exciting and at the same time very crucial for the firm.

However, the bigger picture for us is that 2017 will be the 25th year that our law firm has been in business, as we started in 1992 in India. Throughout the year we are running several programs and projects, and one of these will be a global women empowerment platform called ‘LYLLY’ (Live Your Life Legally). This program’s mission is to convey the message that each woman on the planet has a right to live legally and respectfully, and real women empowerment can be brought through legal empowerment. LYLLY will be a platform that women and girls can look to for legal awareness, legal support and legal education.

During 2017 we will also be opening at more locations in the UK, the US and India, besides Australia and Europe, making this year a year of expansion and continued game changing for Musthafa & Almana.

 

Is there anything else you would like to add?

We are now four lawyers in the family. As you can see my principal partner, and co-founder of Musthafa & Almana, is Mrs. Almana, who is also my life partner. Our elder son Azhan Backer is now heading the MASS, and similarly, our second son Zahan Backer has joined the firm after graduating in law from Warwick University, UK, this year. Azhan graduated in law at Warwick University, UK, did an MA in Islamic Finance at Durham University, UK, and an LLM in Commercial law at Cornell Law School, US. Zahan has opted for specialising in Fashion law & IP Laws and is now interning under our Fashion law Practice Division, and at the same time engaging in MASS activities as Deal Flow Executive. I think he has started the same way as I had 30 years ago.

On a personal note, when I look back, I think I have achieved much more than what I thought I would in the beginning, but when I look forward, I think I am yet to achieve much more. My studentship and learning process is always on the move.

 

Contact Details:

Musthafa Zafeer O.V.

Founder & Managing Director

Musthafa & Almana

 

Tel: +971 04 38 69 993

Fax: +971 04 38 69 994

www.musthafa-almana.com

www.mastartups.com

From Spain to Peru, this thought leader has made huge steps in the development and implementation of business projects that not only attract FDI, but also contribute towards the overall economy of a developing nation.

On the matter of foreign investment, Lawyer Monthly hears from Dr. Ángel Castro Rivera, Partner at MG Abogados Peru & Spain. Here Ángel discusses the rapid growth of Peru’s economy, its challenges over the years and to come, and touches on the firm’s thought leadership in this critical Latin American region.

 

What would you say are the biggest draws for investors when looking to Spain and Peru as a place to do business?

Recent data on the Spanish economy's performance shows consolidation of the economic recovery. The IMF prognosed that the Spanish economy would grow 2.5% in 2016, registering a point more than the rest of the advanced economies and double that of the Eurozone.

Spain also offers a privileged position as a gateway to Latin America, given their shared past, and their linguistic and cultural heritage. Spain is also the European country with the most Latin Americans, and for this reason is the European business platform “par excellence” to do business with the Americas.

 

What about Peru?

Rapid growth in global trade and foreign investments in Peru in recent years has made the country one of the 20 most international trade-oriented nations in the world. According to the World Bank’s report ‘Doing Business 2016’, Peru is very much open to regional and international trade and has a favorable environment for foreign investors. Additionally, Peru ranks 15^th in international credit worthiness. Among South American countries, The World Bank ranks Peru as 2^nd in ease of doing business. Also, the International Monetary Fund (IMF) and Bloomberg L.P. note that Peru is one of the best frontier markets for global investments.

Peru’s sound economic policies have been key to obtaining an investment grade from major credit rating agencies. From 2004 to 2014, Peruvian exports grew from $12.5 billion to $34.1 billion. Peru recorded $7.89 billion in foreign investments in 2014, placing the country high in the top 5 best investment grades in Latin America.

 

As a thought leader in international business, how do you think Peru could be even more appealing to FDI?

Despite its shortcomings, Latin America, and especially Peru, has seen much progress in recent times. Peru has prioritized social progress and social inclusiveness, has embraced democracy and consolidated the Rule of Law. A favourable external environment, prudent macroeconomic policies, and structural reforms have helped to stimulate high growth and low inflation; thanks to its attractive legal and fiscal framework, Peru continues to attract FDI.

Nevertheless, as in every other economy, Peru still has a Pending Agenda to keep attracting FDI. In this sense, Peru has to keep investing in public health, security and education. Additionally, Peru has to keep working on giving added value giving to its natural resources, despite being a country rich in natural resources that are highly subject to price volatility (i.e. FDI flows into Peru fell in 2013 following the natural resources slowdowns in Latin American and China). Peru's export earnings depend heavily on world market prices in metals and fish meal. According to the World Bank, the main challenges ahead that may have an impact on Peru´s economic growth include the decline in commodity prices and a possible period of financial volatility associated with the expectation of higher interest rates in the US.

 

How complex are the rules that govern foreign investment in Peru? What EU directives or treaties directly affect this?

Since the 90s Peru has been simplifying/changing/easing its FDI legislation to host and facilitate foreign investments in the country and to maintain the stability required to promote private sector activity and investment.

Investors in Peru have the same rights over their investments as local investors, based on the principle of “national treatment.” Peru also has a friendly legal framework for investments and offers an attractive business environment for both national and foreign investment, including non-discriminatory treatment of foreign investors, unrestricted access to most economic sectors, and free transfers of capital. It is strictly forbidden to apply unequal treatment to investors with regard to prices, exchange aspects, tariffs, non-custom duties, business information, or any other feature with equivalent effects based on nationality, types of economic activity, or geographic location in the country.

The only investments requiring approval are those involving weapons and/or explosives, private security and surveillance, investments in maritime or air transport, and those located within Peru’s borders or in protected natural areas.

During June 2012 the EU signed an ambitious and comprehensive Trade Agreement with Colombia and Peru (valid since 2013) that opened up markets on both sides as well as having increased the stability and predictability of the commercial relations.

 

What have been the most recent regulatory developments to affect foreign investment law in Peru? How have these affected your work?

Peru has worked alongside 12 of the 21 participating countries of the Asia Pacific Economic Cooperation Forum (APEC) to develop the Trans-Pacific Partnership Agreement (TPP) that has become the most challenging negotiation process between the Asia, Oceania, and the Americas. The TPP paves the way for a future Free Trade Area of Asia Pacific (FTAAP).

Peru has also signed 20 trade agreements to increase and consolidate access to its main trading partners’ markets for its main products, as well as the Free Trade Agreement with the European Union (EU) that has been in effect since March 2013. Peru is currently negotiating additional agreements with Turkey, El Salvador, the Trade in Services Agreement (TISA), and the Doha Development Round. In October 2015, the annual meeting of the World Bank Group and the IMF took place in Lima and brought together finance ministers and central bank governors from the institutions’ 188 member countries.

For the specific case of Europe, during 2013 the ‘EU-Colombia and Peru Trade Agreement’ entered into force, including commitments in the area of labor and environment-related matters, to strive to improve the laws and policies in these areas, and not to lower them in order to attract trade or investment. During 2014, the EU certified Peru’s access to the Schengen System without approval (since the 15^th of March 2015 Peruvians do not need a Schengen Visa to enter Europe).

Peru´s new commercial policies have allowed expansion of the Peruvian export market, enabling over 94% of Peruvian exports to penetrate more than 50 countries under very competitive conditions. The main traditional exports of Peru are gold, oil, natural gas, zinc, lead, iron, fish meal, and coffee.

All of the above mentioned treaties and agreements have open up markets on both sides as well as increased the stability, predictability of the trading environment, and the number of our clients, foreign companies and investors with numerous activities in both economies. Our jobs have been positively affected because of the growing number of clients interested in different kind of business opportunities (Private and Public Partnerships - PPP(s) - , Bidding Processes, Import & export activities, Merger and Acquisitions, etc.). Thanks to our offices in Spain and Italy, nowadays our new clients are mostly European.

We are also facilitating Peruvian investors with the execution of their projects in Europe.

 

What common challenges do foreign clients face when setting up a business in Peru? How do you help them navigate these?

The most common challenges that foreign investors and clients face when setting up a business in my country are: qualifying for the complex bidding processes for major projects; finding reliable partners to form partnerships or consortiums; and cultural nuance and legal uncertainty & insecurity caused by changing its regulatory environment and not having legal advisors with the capacity to offer them comprehensive and trustable legal services.

The development of an extensive legal network, knowledge and relations within Peru allows us to provide specific assistance to European and Peruvian investors seeking new and very profitable business opportunities. We provide ongoing support for European companies who require it in Peruvian territory, for the consolidation of new businesses. We also provide comprehensive assistance, commercial, both extrajudicial and judicial to European companies wishing to create or having links with business and industry throughout Peru. One of our specialties is to advice companies who wish to qualify for the complex processes of bidding for major projects throughout Peru.

 

How busy and successful have you been with European clients throughout 2016? Were a large majority of them cross-border, or not? What atmosphere do you predict for the Peruvian FDI landscape in 2017?

During 2015 and 2016 we have been very active with cross border clients. We took care of the registration of several European companies, its legal representation, all legal aspects related to their participation in several national projects, biddings and Public and Private Partnerships.

We have become a platform for all European companies, regardless of their size, seeking to set up and extend their business in the European & Peruvian market, offering them all the legal, fiscal, technical and administrative services entailed in any process for introducing and establishing a new business project outside of its market of origin.

 

As a thought leader in this legal segment, how do you help create new strategies or develop and implement new legislation in relation to foreign investment and financing?

We are always aware and updated about all the changes, international legislation and new trends occurring in the legal world related to the promotion and protection of foreign investment and financing. Our three offices in Peru, Spain and Spanish Desk in Italy are constantly active and exchanging & collecting systematic information anywhere in the world concerning foreign investment and also organizing seminars trying to influence the implementation of new legislation that has a positive impact on business.

For example, one the most feared evils in Latin America has always been corruption and has caused great damage (for international investors and businesses) to its positive image. Nowadays, and since the First Compliance Law Nº 30424 was published (21.04.16), in Peru we are actively organizing different seminars and collaborating with local institutions in order to promote the benefits and future legal changes that have to be made in the Criminal Code and local legislation to be able to create a culture where public entities and companies do the right things to keep attracting foreign investments and clear the governmental hurdles so that business can get up and running quickly.

We do the same within the ABL (www.abloglobal.net), linking lawyers and legal knowledge worldwide. With over 700 lawyers and 51 offices in 32 countries, ABL allows private and public entities an access to a creative and entrepreneurial quality legal advice and trends worldwide. We held two international meetings every year in different countries and during these conferences. ABL members give seminars, take part in workshops on specialist legal subjects (we call it Business Units), and celebrate meetings with local authorities to offer them our assistance in an attempt to promote their commercial advantages and let the world (and our clients) know the specific strengths and investment opportunities in these specific countries.

 

You have studied international and EU business law in many countries around the world; how has this contributed to the thought leadership you boast in this legal segment today?

What I am today is just the result of my studies abroad! I had the great opportunity to consolidate my legal background and continuing my professional educational development in different countries (mainly in Europe: France, Germany, Holland and Spain) and nowadays, despite my Latin American legal background, I am an incorporated member into the Council of the European Lawyers under the Court of Justice of the European Union (CCBE).

Europe has offered me an important professional mobility and a promissory career. Nowadays I can offer my clients legal advice on a diverse range of subjects and I can assure them that they will receive quality proactive legal advice to enable them to take their businesses everywhere in Europe or Latin America.

Medical negligence and product liability often come hand in hand, and in the case of vaccine injuries, complex disputes require the services of experienced and skilled lawyers. To this end Lawyer Monthly speaks to Anne Carrión Toale, Partner at Maglio Christopher & Toale, a civil litigation firm in the US, who discusses the firm’s thought leadership in this area, and touches on the ins and outs of vaccine injury claims and how they can be dealt with.

 

How are vaccine injury disputes resolved in the US?

During the Reagan era, Congress created a little-known Vaccine Court with the enactment of the National Childhood Vaccine Injury Act (the Act). This legislation created a no-fault vaccine injury compensation scheme which covers adults and children who have suffered adverse vaccine reactions. Many developed nations have similar programs. In the US, the Act was spurred by a rash of products liability litigation in the eighties involving the DTP vaccine, which threatened our nation’s vaccine supply and immunization rates. Under the Act, vaccine manufacturers and medical providers became exempt from liability for vaccine reactions.

Unlike most tort reform, which benefits corporations at the expense of injured consumers, the Act offered a significant advantage to the injured. Those who have suffered a vaccine injury are relieved of proving “fault” under the Act, which would typically not be possible, and instead only need prove the vaccine actually caused the harm. Vaccine reactions are generally not due to the negligence of the manufacturer, with some exceptions. Instead, genetic and environmental factors likely contribute to most vaccine reactions which are largely idiosyncratic and unavoidable. Awards are paid from a trust fund, which currently exceeds $3 billion, created by an excise tax on vaccines.

 

Since you became involved with vaccine litigation how have you seen the number of vaccine claims evolve?

The number of vaccine injury cases filed annually doubled after 2005, with the addition of the influenza vaccination as a covered vaccine. The number of claims filed annually continues to rise, with over $254 million in claims paid in 2013, compared to $180 million in 2010.

Because so many doses of the influenza vaccination are given, I have represented numerous victims of Guillain-Barré Syndrome which is associated with receipt of the influenza vaccine. In the syndrome, the body’s immune system attacks part of the nervous system and is characterized by muscle weakness and paralysis, which can be permanent.

The addition of the influenza vaccination also significantly impacted the demographics of vaccine injured claimants. Many more adults than children are now receiving compensation under the Act, which was originally intended primarily to benefit children.

 

There is a lot of speculation that vaccines may cause autism, has the Vaccine Court addressed these claims?

The Vaccine Court gained national attention in the late 2000s, when an omnibus proceeding involving more than 5000 autism claims was held. In 2009-2010, six tests cases were tried alleging that autism was caused by the MMR vaccine and/or thimerosal in vaccines (a preservative containing mercury). All six test cases were ultimately unsuccessful. A similar proceeding took place in the UK.

 

With regard to vaccine injuries, what have been your milestone cases with the firm and what were the challenges therein?

The largest settlement I have recovered for a vaccine-inured person to date resulted in a $61 million payout over the lifetime of a catastrophically injured child who received 5 vaccines (for 7 diseases) at her 2 month-old well baby visit. Within twenty-four hours she developed a fever and seizures, suffered cardiac arrest, multi-organ dysfunction and developed severe brain damage. The money recovered will help pay for her medical care, attendant care, home modifications, and residential care once her parents can no longer care for her at home with attendants.

I have also represented a number of severely injured adults whose damages can run in the tens of millions, if they are no longer able to work and need lifetime care. What makes the high value cases challenging is ensuring that any negotiated settlement will include sufficient funds to cover the injured person’s care throughout their lifetime when their future prognosis is sometimes uncertain. Although Congress intended the vaccine injured to receive awards generously and quickly under the Act, in practice the claims are defended quite vigorously by the Department of Justice on behalf of the Secretary of Health and Human Services.

 

Have there been any significant legislative developments that have changed the way vaccine injuries are dealt with over the last decade?

Unfortunately, no. Several critical changes are needed to the Vaccine Act which can only come about through legislative action. From a procedural standpoint, an increase in the number of special masters available to hear vaccine cases is desperately needed. Under current law, only eight special masters decide vaccine injury claims for the entire nation. This shortage of decision makers has caused significant delays in the processing of claims, although the Court is doing all it can with available resources.

Other needed changes are an updating of the $250,000 pain and suffering cap and $250,000 death benefit, neither of which has been raised since 1986, to reflect current dollars. The time limitation to file claims should also be increased. For many people, it is too late to file a claim once they realize a vaccine caused their injury. Part of the problem is the Vaccine Act has not been adequately publicized, and many parents, the general public, attorneys, and health care professionals are not aware it exists.

Coverage for the Shingles vaccine and certain Pneumococcal vaccines which are not currently covered by the Act, is also needed. These are not recommended vaccines for children, thus they are excluded from coverage. However, this leaves many of our elderly with vaccine injuries for which they have no recourse. It may also be that the Zika vaccines in development will not be covered by the Act, but they should be.

 

As a thought leader, how are you currently working towards this goal?

Through our bar association of attorneys who represent vaccine claimants, we have retained lobbyists and had meetings with congressional staffers and court personnel to discuss these needed changes. Because the topic of vaccine injuries is so controversial for so many reasons unrelated to the Act, such as mandatory vaccination and outbreaks related to vaccine refusals, it is difficult to get buy-in from legislators to address Vaccine Act amendments.

 

What are the most common issues that arise in vaccine injury cases, and are the solutions complex?

 Complex medical causation issues require medical experts from the fields of immunology, neurology, rheumatology and epidemiology in cases that go to trial. Invariably, a significant body of peer-reviewed medical literature is analyzed by these experts. The special master must then decide the case, keeping in mind that science and law have two very different concepts of “evidence” and “proof.”

 

What is the range of solutions or actions available to claimants in vaccine injury cases?

Vaccine injury awards can range from $10,000 to tens of millions of dollars, depending on the nature and severity of the injury. Most vaccine claims are resolved by informal settlement. Some cases are referred for mediation and other cases are tried before a special master with expert witnesses testifying as to the causality issue. There is an opt-out provision which theoretically allows a dissatisfied claimant to seek legal redress in the traditional court system, instead of Vaccine Court, but it is used infrequently.

 

Being a thought leader, you also write a monthly vaccine injury newsletter and vaccine injury blog; what is the scope of these and how do they help you push the boundaries of this legal segment?

My intention in publishing this newsletter is to educate the vaccine bar and elevate the quality of legal representation provided to the vaccine injured by newcomers to the field because this is a quickly growing niche practice area. In the newsletter, I analyze cutting-edge legal precedents and encourage best practices among all attorneys in my practice area.

 

Is there anything else you would like to add?

Although every case is a sad story, and it is terribly difficult meeting with parents who have lost a child or an adult who has had life as they knew it changed forever, helping vaccine-injured people obtain compensation from the fund is challenging but very rewarding and interesting work.

The world has become increasingly concerned about the environment and society’s impact on it in recent years, and as a result, regulation has become enormously complex. It can be extensively tricky for companies to navigate these regulations, and litigation in this matter is not uncommon.

Here to discuss the latest updates on environmental law in Scotland and the UK, and providing Lawyer Monthly with an expert outlook on the challenges and potential solutions ahead, is John McGovern, Partner at MacRoberts LLP, a Scottish sector based law firm.

 

In the past decade, what would you say have been the biggest changes in Scottish and UK environmental law? How have these impacted your work in this field?

There have been many significant changes, not least what seems like constant additions to environmental law affecting contaminated land and to producers’ responsibility e.g. packaging and batteries, and the regulation of waste management/ storage. It can all be very confusing for SMEs to follow and keep up to date with, no matter how well motivated.

In my view, in both the UK and Scotland the biggest change in environmental law which will impact on civic society and the business community is climate change legislation - The Climate Change (Scotland) Act 2009 and The Climate Change Act 2008 (UK). These Acts set ambitious targets for the reduction of greenhouse gas emissions by 2050, and by 2020 on an interim basis; and allow the government to effectively regulate and monitor those targets, through public authorities and bodies.

More practically, as a solicitor, the biggest changes are probably the most recent – the introduction of the new regulatory regime in Scotland which allows the Scottish Environmental Protection Agency to accept an offer of an enforcement undertaking, as an alternative to a criminal prosecution, where there is a reasonable suspicion that an offence has been committed. These changes also allow SEPA to charge the “relevant person” for its cost in monitoring and investigating the viability of any offer made. These changes are consistent with the enforcement undertaking regime that already exists in the rest of the UK. Understanding how this new regime is going to work, and what SEPA’s attitude towards it might be, is a big challenge at the moment.

 

What are the biggest challenges that lie ahead pertaining to environment law in Scotland?

Generally, I think there is a challenge for SEPA to make the rules more accessible and simpler with clearer standards. The question “do I need a licence for that?” often does not have an obvious or simple answer. While SEPA has improved its website, there is often little clarity on the thresholds for regulation or the standards which need to be met.

As a practising regulatory solicitor, I think that some of the pre devolution environmental legislation may eventually be challenged under ECHR.

 

As a thought leader, what solutions do you envision and how complex is the logistical achievement of these?

Scotland is a small jurisdiction, and the challenge for the legislators is to engage with all of those operating in the environmental law area. As a lawyer, I want to be able to advise my client on legislative change with some confidence. Sometimes that can be difficult if the legislation passed is designed with a specific purpose, such as to assist the regulator, and to ensure that financial burden is passed to the business being investigated.
You defend clients in investigations involving the Scottish Environmental Protection Agency and the Forestry Commission; what particular challenges do these cases present?

I would like regulators to be more relaxed when conducting these investigations, and be more open with those being investigated. I often struggle to understand some of the thought processes that the regulators follow when conducting their investigations: I think at times that there is a passing nod to the fact that they are often conducting major white collar criminal investigations which could end businesses, and put their owners behind bars, yet they can be very closed with their information. In my experience, most businesses under investigation have a desire to remedy the issue which has prompted the investigation as soon as they can.

 

As a thought leader, how are you currently working to develop or implement new legislation or strategies in this field?

I think that Brexit has almost led to a moratorium on new legislative initiatives. From speaking to clients overseas, there is hesitancy not just about Brexit, but also about the consequences the vote will have for Scotland. Whether you are in favour or against a second referendum, I don’t think anyone will argue that the uncertainty is producing strategies and legislation for the long term.

The realm of property law can span a vast number of property types, but most litigation matters revolve around real estate property and the complexities therein. Property litigation deals with disputes surrounding ownership, investments, and at times the function and maintenance of a property, whether it be residential, commercial, industrial, or agricultural.

Detailing the UK’s evolution in property litigation over the years, and how MacRoberts LLP, a Scottish sector-based law firm, unfolds particular litigation scenarios, is Gillian Craig, a Partner in the firm’s Commercial Dispute Resolution team.

 

How has the UK Property Litigation arena evolved since you joined MacRoberts in 2002?

Back in 2002, property litigation was not particularly recognised as a standalone specialism in Scotland, although it was already well established in England. At that time, in the property boom, typical actions would include sellers trying to elide missives due to more attractive offers being received post- completion. Dilapidations wasn’t a particularly active area due to the buoyant letting market. However, come the crash, property litigation really flourished, enforcing missives against purchasers, advice in relation to insolvent tenants, and a real surge in dilapidations cases - given the late-eighties leases reaching their ish - and a real focus on lease end repairing obligations in the absence of new tenants willing to take on FRI leases on any terms. The evolution in title conditions (and improvement in the development sector) has led to an increase in Lands Tribunal applications and, of course, environmental legislation and how it fits into all of this.

 

What would you say might be the atmosphere in the UK property segment throughout 2017, especially on the back of the recent Brexit vote?

I’ve seen a very mixed picture. Traditional institutional lenders are cautious, particularly in the regions. Whereas entrepreneurial funders see a real opportunity, particularly in purchasing assets the traditional lenders - for political and strategy reasons - are selling. I’ve seen some efforts to wriggle out of concluded missives in light of a Brexit concern but, to be honest, that has dissipated.

 

Can you detail the strategies and challenges of one of your most recent property litigation cases, and how you applied thought leadership to this scenario?

Sometimes we can get caught up in new developing areas of law that old principles are overlooked. In a recent dilapidations case it transpired that there was a good argument that the landlord had inadvertently renounced the lease, with the possibility that all claims under the lease had therefore been extinguished. It’s not a point that has been tested in Scotland for a number of years.

Other issues arise in relation to landlords gaining possession of demised premises at very short notice (e.g. where a lease and sub-lease terminate on the same day, but the sub-tenant refuses to remove, putting the mid-landlord in a very difficult situation). The court rules do not readily accommodate this, and as a result of this I’ve had to be creative; whether it be actions for recovery of possession or interim orders for possession in the Court of Session, which don’t quite fit the bill but can be manipulated to a degree. This is something that I am hopeful the drafting committee will pick up at some stage in the new Simple Procedure rules, and it is certainly something I have lobbied them about!

 

You are also experienced in arbitration and mediation; how often can these be applied to property disputes and what are the benefits in your opinion?

Arbitration typically comes up due to the fact that most commercial leases will have an arbitration clause. In my experience, service charge and dilapidations disputes are well suited to arbitration if the arbitrator is a building surveyor. Equally, mediation is a great forum for dilapidations disputes, purely because courts are not an ideal forum for going through the minutiae of a Scott schedule, if nothing else, due to the incredible expense involved.

What I do find surprising is that, notwithstanding the prevalence of expert determination in leases, be it overtly or covertly (e.g. certification of service charge or dilapidations) there is very little challenge or case law in the area. I’ve been vocal in warning the surveying profession of their duties and exposure in this area.

As with all litigation, you must be mindful of cost; it’s an expensive undertaking. The area is usually therefore well suited to mediation, where creative remedies can be found. Certainly, in my experience, dilapidations disputes are very well suited to mediation.

 

As a thought leader, how are you currently working towards developing or implementing said legislation, or any other directives in this sector?

I am a committee member of the PLA and we are actively trying to become involved in contributing to procedure rule change.

 One of the most important priorities for any company wanting to step up in its global presence, expand its business, and become the best in its services, is to nurture the talent within its ranks, and provide an abundance of support to its employees, in order to see a return on that investment, both immediately and in the long term.

 As Chief Legal Officer at Lightsource Renewable Energy, Europe’s leading solar energy company, Dr Ece Gürsoy is in a formidable position to drive such investment in the company, and in such a largely operational business, both geographically and legally speaking, challenges don’t go a miss.

 

As CLO, what are your main day to day roles at Lightsource? Do you work mostly alone, or as part of a team?

Our current in-house legal team consists of 15 lawyers and at one point had 27 lawyers and trainees. The team works hand-in-hand with departments across the whole business from day one of a project through to completion and delivery. This means that our role starts in the initial phase of any new project or structure that the company is looking to embark upon. We have a good reputation for our quick turnaround of work while maintaining the high quality expected.

While effective management is obviously very important in contributing to maintaining this reputation, I don’t act as a traditional manager. I work with the team every day to ensure that they are well supported - I don’t just leave them with instructions. As a team, I think having a close working relationship built on a good rapport and strong trust is vital for success. Law as a profession doesn’t leave much room for error, so I keep a close eye on the final drafts and make sure I’m always available for questions on complex matters to ensure consistent high quality output and continuity.

The key attributes of a good general counsel are leadership, good communication (internally and externally), strong legal knowledge and a pragmatic common-sense approach. Due to the dynamic nature of the sector, you never know what the day ahead will bring, which helps keep the job fresh. This is obviously not to everyone’s taste, but in order to be successful in our sector you have to embrace it.

I also have a role on the senior management team, so as the general counsel I wear a different hat here. I help to manage potential risk when Lightsource looks to pursue new business opportunities, creating checks and balances within the management team. Like in the case of private practice, you must continue to give world-class advice, but you also need to ensure that it promotes the business. I try to find new ways to expand the company’s position in the current solar market thinking outside the box while still applying legal principles. As a lawyer, this is not always easy, but it’s certainly another management skill I have developed at Lightsource.

 

What are the dominant legal challenges that crop up, in particular in real estate, employment, IP, competition and commercial law? Do these have complex solutions?

In our business model, our projects are comprised of energy regulatory, property, construction, mergers and acquisition, corporate restructuring, and structured finance aspects. The solar industry is a relatively new sector, so the first challenge was to create bankable structures and legal documentation to support our goals.

Another layer of complexity is the strict regulatory environment we work within, which has been subject to considerable change over the years. As a consequence, you have to develop new legal structures to meet the needs of the business and keep achieving your targets, which requires involvement in various aspects of law – from property law to corporate law and from construction law to finance law.

Our projects in the UK have always been subject to very strict deadlines due to government subsidy mechanisms. As a result, time is always of the essence which puts a great deal of pressure on the legal team and the company as a whole. We are now at the last run up of the connection deadlines, as large-scale subsidies are being gradually phased out in the UK. This has brought fresh challenges to the business as we have again had to adapt our business model while looking at ways to create more value from our existing assets. We are pioneering innovative new large-scale projects in the UK that can operate in a subsidy-free environment by connecting solar power plants directly into the electricity supply of major energy users. With this corporate Power Purchase Agreement (PPA) model, we are bringing the same high-level of technical and development standards, as well as brand-new legal documentation and legal structures.

 

How important would you say is the need to develop skills and foster the progress of employees within the company, given the sector’s competitiveness?

 We believe that investing in young talent is a key element to success. Lightsource is one of a select band of UK companies to be accredited by the Solicitors Regulation Authority to offer training contracts to trainee solicitors.

We hire our trainees as paralegals, giving them an opportunity to learn about the industry and the philosophy of the company, before undertaking a training contract. I believe that a lawyer trained within a company is much more effective as they build an understanding of the business, while developing their skills and knowledge handling the complex legal structures that our projects offer.

We operate in a very competitive and fast-paced industry, so one of the key elements for us is create continuity across the whole team. There is a level of understanding across the entire team on each of our projects, so there are no gaps in service and the work doesn’t stop if someone is away from the office.

From a technical point of view, we continuously review and discuss new legislations and how they apply to our system, so there is a continuous knowledge share which is supported through internal training.

 

In terms of your legal team, how do you personally make sure every individual’s personal and professional development is accounted for and given importance?

 Being a lawyer is very demanding. There is a common view that being in-house is a much more relaxed environment, but this is certainly not true for Lightsource. Lightsource has grown from a start-up company to Europe’s leading solar energy company in a very short period of time. We are not just a developer, we also operate and manage all of our assets once they are constructed and we also undertake all of the financial structuring. It’s not only the management of corporate affairs that the legal team helps oversee, we also provide tailored advice on the complex structure and day-to-day management of these assets. This is why being a lawyer at Lightsource is very demanding!

As a manager, I need to look after my team members and ensure that projects are allocated according to their skills as well as their own interests, as I am a great believer that lawyers should enjoy their role in order to be successful. I always try to create a career path for our lawyers, so they are getting an experience that they feel is rewarding, as well as helping them progress and develop their skills further. Believing in people, supporting them and giving them the right level of workload and challenge without boxing them into the standard PQE levels is really what helps to open up their potential.

 

How do you, in your role as CLO, help nurture said talent within the rest of the company?

 Lightsource consists of very young, but bright and talented people, which our management team really values. We invest in our talent by given them responsibility, trust, guidance and relevant training as they progress. We want to open up their career paths by rewarding their efforts and giving them further responsibility to see what they can deliver. We have some very talented young people dealing with reputable law firms, finance houses, service providers and clients on a daily basis and we are very proud of this. If businesses can provide varied and interesting work, then modern in-house roles can attract the best talent available. We have also created an environment at Lightsource where the whole company feels like one team and the senior management is no different - we all work side-by-side.

 

How would you advise other business to go about boosting their ranks’ talent and how much would the logistics of that development differ between industries and roles?

Bringing a start-up company to a fully-established and successful company is not an easy task, it took five very demanding years of hard work. As the managers or leaders of the company, you need to show to your employees and your peers that you are putting in 150%. You must lead by example and inspire that same attitude in others you work with. Talent is important, yes, but perseverance, commitment and discipline are also major ingredients to success.

It’s important to be open minded and chase the right opportunities, but it’s also important to get the right support and advice. We get expert advice from our external lawyers, from our financial advisors, as well as technical and strategic management advice. The success of Lightsource has been in part down to our own intuition, experience and knowledge, but ensuring that we have the right information on-hand to make informed decisions.

We take a similar approach to nurturing our talent, by getting to know the people and their strengths, so we can make more informed decisions about their development and training requirements to support those strengths further. Nurturing talent is very much about recognizing the individual you have in front of you and understanding how best to support their growth.

 

On the flip side, what do you think are the most helpful ways all employees, from legal counsels such as yourself, to engineers and R&D workers, can help nurture the services their company provides?

 For any business working in a dynamic industry, I believe that you need your lawyer involved from day one if you want to get the most effective results in the quickest time possible. Can you do this with external lawyers? Of course you can, but to a much more limited level.

In the solar industry, for example, there are many different teams involved with the delivery of a project from a planning, technical, construction and financial perspective. We as lawyers are generally the ones putting all the pieces together to bring the project to life. Your in-house lawyer knows all the legal aspects as well as being someone who lives and breathes your business - this is how you can become a sector leader, through speed and quality.

Legal costs can have a big impact on the overall budget and financial models for projects across any sector, which is why we are seeing more and more businesses swaying towards having in-house expertise with the relevant external support when needed. Having high quality in-house legal support is a real added value to the business - not only from a cost perspective, but also by producing genuine workable legal solutions that are right for the business.

 

Is there anything else you’d like to add?

The role of modern in-house lawyers is set to change the legal profession and the way the legal sector works. In-house lawyers are not just lawyers, they interplay across law, regulation, analyzing business problems and providing workable structures for the business. They are sometimes a “fixer,” sometimes the magician that pulls the rabbit from the hat and sometimes the only person with the abilities to bring a project to a successful close by spending long hours in the office. One important point is that in-house lawyers gain a unique position within a company by listening carefully to what the business is saying and understanding the minds of the senior management team as to what they want to achieve.

Further into our immigration focus, Lawyer Monthly hears from Andrew Osborne, Partner at Lewis Silkin LLP on the potential Brexit effects and impacts on the sports sector, and the business therein. Here Andrew talks about the complexities involved in sports transfers, and touches on his and the firm’s thought leadership in the sports world.

 

You deal in UK sports and immigration matters; what kind of complexities do you encounter as these come together?

The main concern when doing sports work is usually timing. When a new player or coach joins the team, the club wants them to be available as soon as possible.  This can often be a challenge where the application is being made from certain countries. This also applies to their family members, but clubs are usually very good at supporting family members joining and ensuring their player/coach is settled very quickly.  Immigration from this perspective is a very personal and emotional process.  It's important we remember that the player/coach and their family are often relocating from the other side of the world and can be quite anxious. We work hard to be mindful of this and make the process as smooth and reassuring as possible. There is also the need for discretion - we are privy to information that the press and public would be very interested in, so confidentiality is crucial.

We also help clubs with pre- and post-season tours, and travel for international games. Players have such full schedules that arranging the logistics of appointments, and getting our hands on their passports for a few days, can be tough, particularly when the deadlines for a tournament are immoveable. We are lucky to have members of our team who are passionate about sport and are, as a result, aware of fixtures and training schedules.  We know how to prepare applications with the minimal amount of impact on a player’s time.

So I would say the main complexity with immigration and sport is making sure applications are completed correctly and all the paperwork is in order within the allotted timeframe, with minimal impact on the player/coach. We take on the burden of this hugely bureaucratic process, away from the club and player, so that they can focus on what they do on the pitch.

 

What would you say are the biggest difficulties encountered in the transfers of employees between companies cross-border, and how do you navigate these?

Immigration is a very personal issue.  The applicants we advise are going through a major change in their lives by transferring from one country to another.  This involves all the stress of moving house but with added cultural, and sometimes, language barriers.  Applicants also often have very strict time constraints with travel.  They may even have moved out of their current accommodation while waiting for their visa. We need to make the visa application process as smooth as possible whilst working within a pretty inflexible system. It can often be frustrating and we need to be able to reassure and support the applicant as best as possible. We collaborate with them and their employer to make the whole process very smooth.

The introduction of additional priority and premium services in some countries (such as the US and Australia) has made the process a lot more efficient for those willing to pay.  On the other hand, the introduction of the 30 day temporary Entry Clearance visa has put another timing consideration into the mix and can make the process even more complicated.

 

How may these difficulties change in the future, especially on the back of the recent Brexit vote?

The main concern is the pressure on the current system. While it is inflexible and requires us to do a considerable amount of planning to ensure there are no delays, the majority of applications we deal with go through without much incident.  However, once there is an issue it is often very difficult to speak to someone and get an update or resolution.  If the current infrastructure is expected to deal with EEA applications as well, I just don't see how it could cope.  Pilots are currently running to test online systems which might ease some of the pressure, but again, if an application is particularly tricky or requires explaining, it requires a personal review and this might take months.

 

When it comes to transferring athletes between clubs at an international level, what are your top priorities for the client?

Over the course of the past few years we have worked with some of the top clubs in the UK and Europe. The objective is always a successful outcome for the client. The top priorities to achieve this outcome are to get the paperwork prepared early and accurately, minimise the impact on the athlete, assess the logistical issues and offer the best solutions. Transfers generally happen in August and January so we make sure those who deal with transfers are available and have capacity to deal with these matters immediately when they arise.

 

Can you detail a sports matter in which you have encountered particular challenges in the past? How did you apply your thought leadership in the field to this scenario?

The most challenging transfers have involved appeals, due to the player not meeting the automatic qualifying criteria for a Governing Body Endorsement. In this case, it is very difficult to plan the visa application and all our energy is poured into preparing the appeal. Once the appeal has been successful, we have a very quick come-down from the high of achieving the GBE, to finalising the paperwork and planning where the player will be eligible to submit their visa application. The player is often in the UK for the appeal, medical or negotiations, and then they usually have to leave and re-apply to return. This requires a lot of explaining and managing the player and club’s expectations of the process from the beginning.

Players are often transferred at a time when they are on holiday or on international duty, so the challenge again is the logistics of getting them to engage in the process and taking the time to submit the application.

Over the years we have built up a lot of contacts in various countries and we could not be as successful as we are, nor ensure such a fluid process for the player, without them.

 

You most recently authored a publication titled ‘Immigration programmes for low-skilled labour: alternatives to freedom of movement’; what were the conclusions drawn from this piece?

That the UK has never had to develop a low-skilled immigration programme across the whole labour market. Certain schemes to allow low-skilled labour into the UK have been put in place in the past for specific industries and these may be a model for a more general system to deal with low-skilled labour. It appears that any system will have some key features:

• It will only allow workers to be in the UK for temporary periods and will not allow them to settle in the UK;
• Restrictions are likely to be placed on family members coming with a worker;
• Employers will need to be licenced to hire lower skilled workers;
• Employers will be encouraged to train local workers to take these roles.

 

Do you have a mantra or motto you live by in service to your clients?

We really try to get to know our clients personally. There are other firms who do what we do, and at this level you would expect the lawyer to be competent and competitive, but knowing the clients you will be working with helps you deliver your advice in a way they will want to receive it. That’s what sets our service apart from the rest.  Sport doesn't operate during office hours, so when your phone rings at 10pm on a Saturday you answer, not because it's your job, but because you know the person calling, have a relationship with them and you want to help them. I think that's important and why we try meet our clients in person regularly.

The modern corporate world is pitted with potential legal pitfalls. It takes a skilled and experienced legal professional to guide companies through the challenges involved, challenges which vary from country to country. Here Lawyer Monthly hears from Sumesh Sawhney, Global Head of Lakshmikumaran & Sridharan Attorneys’ Corporate and M&A practice, on issues surrounding the corporate world in India and the UK and the relationship these countries share.

Sumesh Sawhney is Global Head of the Corporate and M&A practice at India’s premier law firm, Lakshmikumaran & Sridharan Attorneys (L&S), and Head of the firm’s UK office. In a career spanning over 25 years, Sumesh has expertise in India-related cross-border investments, M&A and corporate advisory matters. He is qualified as a solicitor in England & Wales but does not practice as such, and is a member of the Bar Council of Delhi, India.

Established in 1985, L&S has a pan-India presence and is amongst the few Indian law firms to establish its international presence in London and Geneva. The firm specializes in corporate and M&A, competition, international trade, intellectual property and taxation.

 

How would you describe India’s current corporate market and its involvement with UK companies?

India is gaining momentum as a vibrant emerging market under the current political regime and is increasingly outperforming other BRICS economies. With the Government-backed ‘Make in India’ agenda, India is now rebalancing its growth plans from a services-driven outlook to an export-oriented manufacturing outlook. On the other way, as the third largest foreign investor in the UK, India invests more in the UK than the rest of the European Union combined. Likewise, the UK is the third largest foreign investor in India. There is growing interest from both countries to tap previously unexplored funding avenues – the latest being the Indian Rupee-denominated debt securities market. Pursuant to changes in India’s External Commercial Borrowing framework in 2015, this year witnessed the historic issuance of the first offshore ‘masala bond’ by an Indian corporate on the London Stock Exchange. I am positive that Indian and British businesses will continue to engage closely and that this trend shall expand in scope as well as have an upward trajectory.

 

How do you envision this relationship evolving throughout 2017?

Naturally, the past few months saw intense speculation from the international business community and the economic roadmap ahead for India and UK depends greatly on the bilateral Free Trade Agreement negotiations proceeding favourably. Uniquely, Indian investors are spotting lucrative financial opportunities in post-referendum Britain. To illustrate, the British Pound’s decline relative to the Indian Rupee has translated into significant gains for Indians– especially first-time buyers – in London’s immovable property market. In the wake of an impending ‘Brexit’, Britain needs to send strong signals to its trade partners that it is committed to providing a conducive environment for foreign capital, foreign-owned businesses and international talent. India and UK already share a robust economic relationship – at a glimpse, total bilateral trade in goods and services touched a staggering £16.55 billion last year. Given the mutual political will being demonstrated by both countries’ leadership, there is good reason to be optimistic about bilateral trade further strengthening.

 

You are highly involved in UK/Europe - India M&A and joint venture transactions; what particular challenges do these present?

India’s foreign exchange, securities and corporate governance regimes were historically known as cumbersome and restrictive. However, these regulatory frameworks are undergoing transformative changes in order to attract foreign capital. The Foreign Direct Investment Policy is being progressively liberalized with each passing year - permissible investment limits and sectoral conditions have been lifted altogether or greatly relaxed and many industry sectors have already been brought under an ‘Automatic’ investment route from their erstwhile ‘Government Approval’ route. The new Companies Act, 2013, is a landmark piece of legislation that has replaced the out-dated framework of Companies Act, 1956. Such reforms have been instrumental in boosting merger and acquisition activity in India - between January to September 2016, M&A deals have already touched $46 billion in value. Nevertheless, there still remains scope to make India’s investment climate more favourable.

To give you an example, under the Companies Act, 2013, issuance of equity shares with differential rights is permitted inter-alia only if a company boasts a consistent track record of distributable profits for the previous three years. This limitation dampens the participation of private equity and venture capital investors into early-stage enterprises. Absence of a single-window mechanism for obtaining business licenses/approvals had long made it difficult for domestic and international entrepreneurs and investors alike. Now, necessary clearances, licenses, mandatory tax registrations and regulatory filings can be applied for and obtained on a single-window ‘e-Biz’ platform. Pendency and long-drawn litigation proceedings in Indian courts is also a deep-rooted problem.

Though efforts to facilitate speedy redressal of disputes are underway – the most recent being establishment of special commercial courts to settle high-stake commercial disputes as well as constitution of the National Company Law Tribunal and its appellate body - I encourage parties to have in place a strong mechanism for international commercial arbitration, at the outset. Then there are legislations that can vary from State to State coupled with the absence of digitized records in the public domain, which can slow down the due-diligence process.

 

What type of clients do you regularly work with and what makes you their first choice of representative?

In my experience, clients – whether multinationals, small and medium enterprises, individual entrepreneurs or institutional investors - place heavy premium on legal advice rooted in commercial pragmatism as much as in the knowledge of local market trends. Having successfully executed cross-border transactions when the Indian economy has been liberalizing, I’ve had the opportunity to understand foreign businesses’ key concerns when engaging with Indian entities and vice-versa. Of course, all successful relations are built on the classic foundation of trust, work ethic and appreciating clients’ unique business goals.

 

How can India expand its appeal in terms of FDI and corporate presence?

Sweeping reforms aimed at increasing transparency in corporate affairs, reducing stringent compliances and promoting ‘ease of doing business’, have been implemented lately. Government initiatives of ‘Start-up India’ and ‘Digital India’ are stimulating a culture of innovation and entrepreneurship and to encourage inflow of foreign funds, alternative investment vehicles such as Infrastructure Investment Trusts and Real Estate Investment Trusts have been permitted. The Companies

(Amendment) Bill, 2016 – which seeks to amend the Companies Act, 2013 – when enacted, will rectify omissions and contradictions in the legislation and harmonize it with the Central Bank and securities market regulations. On the other end of a company’s life cycle, the Insolvency and Bankruptcy Code, 2016, has been recently enacted to provide a streamlined mechanism for debt restructuring and address systemic challenges such as the multiplicity of bankruptcy regulations and the long-drawn nature of winding–up proceedings.

 

What thought leadership assets would you say previously working at Clifford Chance and Jones Day has brought to your current role?

At Clifford Chance and Jones Day, I led the India corporate practices and advised multinationals through the lifecycle of their India-entry, business development/growth and exit strategies. L&S recognizes the value addition that international transactional experience, crossover legal knowledge and inter-cultural sensitivity can bring to clients at the negotiating table, and has entrusted me with the privilege of establishing its second international office in London and of charting the firm’s future vision for its global corporate and M&A practice.

 

As a thought leader, what significant legislative developments do you think are still necessary in India’s corporate law sphere?

Every jurisdiction poses peculiar regulatory challenges. India is battling a poor image of corruption with Transparency International ranking India 76 out of 168 countries in its latest Corruption Perception Index. When enacted, the Prevention of Corruption (Amendment) Bill, 2013 will align India’s anti-corruption legal framework in conformity with international best practices laid down by the United Nations Convention Against Corruption.

India’s public sector banks are currently straining under the burden of non-performing assets, making it critical for an alternative source of funding to be made available, especially to finance large infrastructure projects. In light of this, efforts to accelerate the development of India’s nascent corporate bond market are underway and the Securities and Exchange Board of India has framed a set of implementable recommendations.

The indirect tax regime of India is characterized by taxation rates and structures differing from State to State. The Government looks set to meet its target for implementing the ground-breaking ‘Goods and Services Tax’ (GST) reform on April 1st, 2017. GST shall subsume various Central and State-level indirect taxes and unify India into a single, common market. For industry, GST promises easier compliance, removal of hidden costs of doing business and a system of seamless tax-credits across the value chain as well as across regions. This will translate into efficiency gains and enhance the competitiveness of India’s manufacturing sector.