Understand Your Rights. Solve Your Legal Problems
2016 saw an unfortunate amount of terrorist attacks in Europe, making immigration regulations tighter and creating a tougher challenge for those wanting to reside in Europe. This month, we speak to Emmanuel Ruchat who sheds some light into the business side of immigration law in Belgium, France and Switzerland.
Has the effect of the UK voting to leave the European Union impacted your work and your clients’ queries? If yes, what has been the effect and how have you had to manage the change?
We received a lot of applications to Belgian or French citizenship from British citizens living in these countries. The volume of work for such cases increased by 25%. In parallel, a number of SME located in UK also asked us an assistance to “transfer” their head office in Belgium or in France in view of keeping their right to free movement and to export in comfortable conditions.
What have been the recent regulatory developments in immigration law in Belgium, Paris and Geneva? Are there any developments that you are apprehensive about?
In France, the government has clearly been open to foreign investors who wish to obtain residents and citizenship. The former ‘card for an exceptional economic contribution’, which was clearly too selective (you would need to invest 10 million EUR or to create 50 jobs) was replaced in November 2016 by a hopeful and promising ‘talent passport’ making it easier to reach these goals. Odds are that the next government will make it even easier and more efficient for similar frameworks.
In Belgium, the field has been deeply impacted by two series of events: first, the law changed in 2012 about citizenship, requiring 5 years of residency for all applicants and in 2015 with the 6th Reform of the State, leading to a transfer of competencies to regions for professional immigration. These changes result in an adaptation of our practice in terms of strategy, for example, the need to start a business before applying for residency, a particular region that has adapted this is Wallonia, whereas Brussels clearly became a place to avoid. Second, the terrorist attacks in March 2016 in Brussels probably discouraged a number of potential applicants from the Middle East, with the result that those who persevere have in fact good chances to succeed. We generally assist our clients to set up a company and to apply for a professional card, or for a work permit if they can be posted from their country.
In Switzerland, things are different. A vote in February 2014 first led to fears that the country would close its borders, even to neighbours and to all EU and or Schengen States. The final result led to appear that the government will manage to limit the consequences of this vote; nevertheless, the ticket to immigrate to this country remains expensive and difficult for businessmen. Only two main solutions exist: either you are a very wealthy person, so we can negotiate a tax lump sum (broadly speaking, leading to calculate taxes on your expenses rather than on your income), or you are sent as an employee in an existing subsidiary.
How has immigration law changed for businesses in Brussels, Paris and Geneva changed since you began practising in the sector?
As mentioned, terrorism resulted in more restrictive conditions and probably a deeper analysis of applicants’ profiles. Also, the economic crisis of 2008 changed the attitude of banks towards foreigners. The assistance of an attorney is more useful than ever, even for small and easy steps such as opening a bank account. Compliance laws have complicated the process. We really wish that the US will infuse a simplification on this level, after having complexified it for eight years. In any case, people seeking for an assistance in immigration law should make the difference between attorneys and so-called “consultants” who just sell them hazy packages.
You have Business Management and Business Law masters; how have these helped you advance when dealing with clients?
Having a masters in law, whatever the specialization is (business or not) is required in order to be an attorney-at-law, yet we think that business immigration is advantageous, because it implies true concerns of ethics and of mutual trust (with clients and with administration) that must be carried out by attorneys. The fact that my masters were business oriented helped me in choosing the kind of companies we can use as tool for foreigners, depending on their project and to know how these companies can work and evolve, what are the liabilities, etc. My knowledges in management brought me essential notions in accountancy, which I think should be mandatory for every lawyer.
As a Thought Leader, what is the most challenging aspect of your current role as Managing Partner and how do you overcome that?
Creativity is probably the biggest daily challenge, as I think it is – or should be – for every lawyer. Rules change often and it is our mission to adapt our recommendations accordingly, even when they become more binding and restrictive, like they are at the present time.
Are there any changes you wish you could make to legislations in professional immigration law, and why?
Obviously, I am in favour of a clarification, yet it could arise from a clear ‘golden passport’ system similar to other countries like Cyprus or Malta, but with a smaller investment. I have seen so many great businessmen, nice people, being treated by the administration as if they were gangsters, that an objective criterion, like the level of investment appears appropriate. Also, a bigger transparency in administration decision making, and mainly in banks, with appropriate and efficient recourses, is suitable. I must say that France is clearly on the right way on these levels.
What is the most common type of dispute you deal with in professional immigration law, and can you offer any advice on how businesses can avoid such dispute?
The only litigations we have in this field are related to unjustified refusals to grant residency or to renew it. As in regards to renewal issues, we always recommend our clients to keep their commitments, including those included in their first applications, and not to forget that a minimum of involvement is expected from them by the country.
Do you have experience with cases in different fields of law?
Yes. The fact that the majority of our clients are based outside EU led me to know people who have interests in EU without the need to immigrate. Generally, they are either people under sanctions by EU, or people sued before criminal jurisdiction. These two fields of law became major activities for me.
Are you planning to extend your activity in other countries?
Canada, and particularly Quebec, is currently a good answer both to some European clients (mainly French) who want to establish a business in a stable part of North America and to our American clients who do not wish to be resident in Europe but are afraid by some “uncertainties” in their country. We should be opening an office in Montreal, hopefully in 2017.
Food for Thought:
What’s most important to you?
Freedom.
What do you feel you couldn’t live without?
Silence! (As well as freedom, of course.)
How do you measure your success?
Number of clients of course!
Family disputes and divorce are seldom a smooth and easy process, and the road can be extra bumpy when involving those in the public’s limelight. We have the pleasure of speaking to Vanessa Lloyd Platt, who is the Director of Lloyd Platt & Co Ltd, who speaks about the challenges behind divorce; she discusses what happens when disputed families share businesses and what it is like representing celebrities in the media.
When undergoing the legal process of divorce, what is your main concern? What will be the outcome if that concern is not addressed?
One of the most important issues to be addressed when going through the legal process of divorce, is that the client understands the processes involved and all of the options available to them. Further, if a client does not feel relaxed with the lawyer or does not like the approach being taken, they will not provide the information that is essential or vital to their case. The very first issue is to ensure that the client does feel able to provide some of the most private information about their life, to a third party.
Family law can be a difficult and sensitive area when regarding disputed relationships, what would you label the most satisfying aspect of your work?
Family law is a difficult and sensitive area when dealing with disputed relationships, the most satisfying aspect of my work is either encouraging a couple to reconcile or enabling a particularly difficult case either to be settled, or a result to be achieved where a client has been subjected to emotional or physical abuse.
Family and divorce can evoke a lot of tension and emotion, how does this impact joint businesses or shares within families?
There has no doubt been a huge increase in cases involving family businesses which then impact directly on the business or shares within families. It is extremely important that the client is armed with all of the correct information and that one party does not have access to the information and the other does not. It can delay and form extra anxiety or prevent mediation at an early stage if one party simply feels that they don’t wish to give information to the other.
The options are that either the parties can continue to work together and share the profits as before, or one will have to buy out the other; the question that remains in each case: are there enough assets by one to do so? Alternatively, the business will have to be sold which means that the earning capacity of one or both then becomes crucial to dealing with the case. This is far simpler where the business involves the parties themselves, however, matters can become extremely complex when they are family companies of a dynastic nature where for tax reasons shares might have been transferred during the course of the marriage. One lesson to be learnt from this is that when you have a family company, that there ought to be a prenuptial agreement drawn up before the marriage or a postnuptial agreement during the marriage to make very clear what will happen to those shares, if the marriage comes to an end.
What complications arise in these scenarios when children are involved?
When children are involved in these scenarios it can become ever more complicated. For example, some parties believe that if trusts are set up for children, that those assets cannot be touched in divorce proceedings. However, recent case law has demonstrated that if income is utilised from those trusts, they may rank as matrimonial assets with the Court being able to direct the trustees to utilise them in divorce settlements. This may fly in the face of what was intended from the outset, but if the case turns into what is known as a “needs base case”, then the assets will have to be utilised to provide housing and general needs. In more recent cases, parties suggest that monies should be set aside for housing for the children. This can then lead to a dispute as to how much, with one side suggesting that they should individually provide funds from their respective shares. Again, this can give rise to emotional fall out and difficulties. The general approach of the Court is that they have to look at what assets are available to be divided between the parties and that older children are not their first priority.
What is the biggest challenge when representing celebrities who are actively in the media?
The biggest challenge here is ensure that you have a good working relationship with their agent or publicist, so that the advice that they are getting elsewhere does not conflict with the advice that you are giving to your client.
Social media is undoubtedly the biggest difficulty to lawyers when acting for celebrities, either to prevent them from reacting to social media or utilising the media in a way that prejudices their case. This is particularly the case when children are involved and there must be a consensus of when the children are allowed to be photographed and when they must be shielded from it. When both parties are known celebrities and are not used to being told when or how they should deal with the media, then the perspective of a divorce case can be extremely hard to deal with. It is important that as a lawyer, that you remember that they are only people and that they must understand that they cannot be above the law.
When your firm rocketed with success, how did you maintain your firm’s brand and voice when expanding your team?
It is imperative as a Director of a matrimonial firm to ensure that despite expansion of the team, each lawyer or member of staff understand the basic ethos of the firm. Some firms when expanding can liquidate their original meaning and lose direction. To me and my team, it is imperative that our general message is never diluted.
You contribute to newspapers by writing columns for them, can you choose one piece that you will always remember writing and why?
As a freelance journalist, I often contribute to newspapers by writing on a multitude of topics including matrimonial, divorce and relationships. Some years ago, I wrote a piece for the Daily Mail and I indicated that some women can be to blame for divorce proceedings and described the kind of behaviour that my male clients were describing to me on an ongoing basis. I was simply acting as a conduit to explain why many men were not happy with certain conduct that they were seeing. The article caused comment for two solid weeks in all of the press and resulted in my being invited to write “Secrets of Relationship Success” which was published by Vermillion and which has become a best seller.
You appear as an expert contributor on several news channels, how important is maintaining an objective view when discussing news and current affairs? How do you maintain a non-biased viewpoint?
It is imperative when discussing legal matters to explain both sides of the argument and perhaps the reason as to why a decision has been made. There are times when it is acceptable to say that you agree with the ultimate outcome and why. However, it is important, in order to explain arguments of the case, to maintain an impartial approach as far as possible. In relation to political matters, it is extremely difficult not to occasionally stray into bias. Sometimes, a way to make this less obvious is to inject some humour into the interview.
Discussing the impact of Europe’s economic crisis on Greece & Cyprus, the consequences pertaining to development of further tax law, and the subsequent challenges of company formation in these countries, is Kostas Kremmydas of Konstantinos Ch. Kremmydas, a boutique law firm based in Greece & Cyprus.
The global economic crisis, the beginning of which was directly related with the Iheman Brothers’ collapsion, also caught Europe totally unprepared, with the governments of southern Europe, and first of all Greece & Cyprus, facing the biggest problem.
The economic crisis was a huge stain on their financial systems, and resulted in the imposition of a “capital controls” measure; in Cyprus, March of 2013 (where this system was abolished in April of 2015), and in Greece in the end of June of 2015, where unfortunately this system is still being applied.
Simultaneously, in Greece the imposition of financial memorandums by our creditors was followed by a huge increase in tax rates on enterprises, and in relevation with the capitals movement’ controls, this created economic suffocation in their viability, as also in their general possibility of further development.
Today, tax rates applied on enterprises in Greece are up to 29% and devidends are taxed at 15%, whereas in Cyprus the tax-rates stand at 12.5% while devidends are not taxable.
Finally, in Greece, centralization of the financial and all other control mechanisms, and moreover the reduction of commercial banks along with the increase of tax and other controls, which refer to earlier than 10 years controls and the rapid rythms of clampdown on preventive measures by authorities (i.e. freezing of funds/accounts commitments), in connection with the multi-law effect in tax cases, intensify the unstable enterpreunership’s development environment.
The situation described above has resulted in the creation of a non-friendly environment for development, both of the already existing and the upcoming enterpreunerships in Greece, and moreover in the phenomenon of enterpreneurs seeking a way for their business ideas to develop in foreign countries.
Research into base of operation, and ways of its development, now takes place both in Cyprus and in Balkan countries (mostly in Bulgary, Romania, Albania), where the tax system is favorable. Simultaneously, our ordinators search for legal support for the enterprises’ incorporation in the countries mentioned above, and moreover for a legal way of avoiding double tax imposition, and legal and tax payment support.
According to all mentioned above, in years to come, the land of development will concern mostly the enterprises in regards to their incorporation and their function (both according to the laws an in the tax section). Tax Law is constantly changing in Greece, as in the same way, continuous and deep changes take place in other legal segments (Urban Law, Commercial Law, Law of Insolvency), and as a result continuous information is requested to be provided to us both as lawyers, and also aimed to the further provision of legal support to our ordinators.
The information mentioned is being succeeded via email analyzing both the upcoming changes in legislation, and the proposals of solutions to future problems. Besides, our intention is not to resolve a case when the problem appears, but to prevent this with action taken before the problem appears.
In what is believed to be the worlds’ first Virtual Reality visualisation that has led to the closing of a real-world court case, 2016 has seen the foundation of what could potentially be a game-changing innovation for dispute resolution.
Developed in just four weeks, an award-winning team was commissioned to replicate the scene of a road traffic collision in order to solve a dispute which had been ongoing for a number of years and had cost a significant amount of money
The case was settled soon after solicitors received the software; by using the latest 3D technology, the company created a 3D model of the real-world environment, animated 3D models of the vehicles involved and provided tools for users to move around, interact with the scene and witness the incident from a number of different positions; including placing the user in the drivers’ seats and from known witness locations in order to validate or invalidate statements.
Here Lawyer Monthly confronts the discussion of how virtual reality may play a significant part in the future of courtroom litigation with Dan Riley, Managing Director at Spearhead Interactive, a UK-based emerging technology agency, the award-winning team at the heart of the aforementioned case, and one that is at the forefront of this potential innovation movement.
In this case, why was VR the game-changing factor that concluded the case? Will this be the case for all future similar cases?
Spearhead Interactive supplied the software to the courts as a PC and VR application, ensuring that the reconstruction could be interacted with using traditional as well as emerging technology.
The powerful use of Virtual Reality to place you in the same situation as a witness, an offender or victim, to validate or invalidate statements, has the potential to impact heavily on the judicial process and offer new insight into case specifics, where human memory and testimony may have been blurred over time, shock or other factors.
We expect the use of VR to be relatively niche over the next three to five years, with real-time 3D software gradually replacing the use of traditional animation in cases where it is currently used. As the technology matures and the legal community is able to leverage advancements in visualisation and connect multiple users within the same environment to communicate, discuss and collaborate interactive crime-scenes, we expect that uptake will be higher for the cases with which it is a warranted and cost-effective solution.
On the back of this case, what has been the legal sector’s reaction?
Overall, the feedback from the legal sector and the forensics sector has been overwhelmingly positive. We’ve had a number of initial enquiries from regional law firms on the back of a series of open days we recently ran on the technology and the implications of the visualisation.
Whilst we expect that for the most-part, the legal sector may view this application of VR and other immerging technology with scepticism, we find that after trying the solution for themselves, they can begin to make the connection between personal experience and application.
How do you think this case will spur a yearning for innovative technology, such as VR, to be incorporated in more and more legal cases?
Personally, I believe it is up to developers and industry to create the tools, solutions and “killer apps” which move technology, whether VR, AR or anything else, past a perceived gimmick or entertainment-focused pass-time and into a realm where it can be considered a viable option that has a significant operational benefit.
Whilst we have seen this gradual adoption with other technologies, with the development of the Internet of Things sector and the increase in the use of technology by criminals, there appears to be a real and serious need for the legal profession to become more aware of the impacts and applications of innovative technology. It is hoped that this will result in more enquiries and a willingness to explore things like VR to save time, costs and deliver a better quality service to clients.
With VR being the instrument of expert witness in this case, how do you think we might see a proliferation in the use of VR as opposed to actual motoring expert witnesses, or other specialists, in courtrooms to follow?
The VR visualisation is a piece of software developed solely through the repurposing of existing forensic activities, such as laser scanning, and visualising the contents of the investigation information provided by these specialists.
It is not our aim to replace or usurp the use of expert witnesses; to the contrary, VR and other visualisation techniques allow these individuals to communicate their findings in a much more interactive and immersive way, complementing and enhancing their work, and enabling a deeper level of understanding with the technology.
How accurate was the data used, analysed and reported from the VR engagement in this case? Is the data questionable, and how can it be made more accurate so that court discussions can be more focused in future VR engagements?
Spearhead Interactive received point cloud data for the 3D scene, forensic and tachograph data for the incident, alongside all witness statements and information collected by investigators, with additional data received from the UK MET office to inform us of weather and environmental factors.
Remaining impartial during proceedings, we were careful to ensure that all details were represented as accurately as possible, however we can only be as accurate as the data we have been provided with.
Through the integration of additional data, visualisations can be made more accurate, whether that’s cross referencing against CCTV, medical reports and other evidence in order to ensure that each line of questioning can be reviewed, discussed and resolved as efficiently as possible.
How might the use of VR in court rooms in future alleviate costs and time for the courts or for claimants?
With the ability to visualise, combine and replicate processes and data, VR reconstructions have the ability to provide significant savings in both time and costs to both courts and claimants.
By providing a scenario which can be conveyed to users in a way they can immediately understand, integrating data and information to ensure we are able to meet the objectives, and enabling full control to navigate and experience these scenarios, removing doubt and visualising the facts of the case outside of any bias.
In addition, with the ability to place yourself in the shoes of any witness or involved party, we expect that a deeper level of understanding regarding the case can be obtained, which leads to fewer errors and problems that arise from the use of witness testimony alone.
What other court claim scenarios do you think VR has a potential use within? Will these present any particular challenges in its use and effectiveness?
VR has a potential use in any scenario where the time, cost or ethical implications of the result outweigh the cost of the technology investment.
Virtual Reality provides the means to visualise and navigate a process as if you were there. With everything in life being a process, there are significant possibilities for the legal sector in the uptake of this technology, as there are with every other sector.
Once the mindset challenge has been overcome by the legal sector, and there are processes in place to guarantee the work that has been completed matches the forensic and other evidence, I believe we will begin to see some truly impressive uses of the technology across a range of cases and scenarios.
How do you discern the differences between reality and virtual reality, and the legal weight each of these carries in a case?
The legal distinction between reality and virtual reality applied to court cases is very much open to debate, however, assuming that the environment is as accurate and detailed as possible, the evidence has been integrated correctly and the technology is used in an appropriate way, there is no reason that the virtual cannot be accepted as the real; in the same way that security and disability audits can be conducted for the construction industry using 3D models and virtual reality.
How do you think judiciary legal development might take place in light of the use of VR in decision making?
The use of VR and the analysis of situations as if the user is there allow for a much deeper level of understanding in regards to the case, provide the ability to focus on additional details, and offer further points for discussion and debate.
It is also plausible to assume therefore, that the technology could serve to focus the efforts of the case on specific areas which are highlighted through the use of the software, potentially altering the requirements for any follow-up investigation work and maximising operational efficiency for all members of the court, from jurors to barristers and judges.
How is Spearhead Interactive now working to incorporate VR into more legal cases, and to explore & develop technologies that will cater specifically to the legal landscape?
Spearhead Interactive is leveraging the initial development to liaise with solicitors, investigators and other members of the legal community to attain feedback, exposure and awareness surrounding the applications of the software.
Through these conversations we expect to be able to identify additional use cases, secure further contracts and identify a route to market for the visualisation services, whilst also determining what products and solutions could be developed using emerging technology to reduce the barriers to entry for the legal sector to take up VR.
Describing the pharma industry as ‘a maze’ of regulation, here Kornelia Nagy Koppany, Managing Partner at KNP Law, a Hungarian law firm, talks LM through the structure and challenges faced in the Hungarian life sciences segment, remarks on the potential legal changes that would be welcomed by the firm, and briefs us on the complexities involved in distribution agreements, privately and with government bodies both on a domestic and international basis.
You work predominantly in advising on negotiations, agreements and M&A; how complex can these scenarios become in the Hungarian and European life sciences sector?
Our primary objective is to assure perfect compliance with Hungarian laws. EU and US pharmaceutical laws have different approaches and most of our pharma and life sciences companies are multinationals headquartered in the UK, Switzerland and the US. Parent companies have Master Agreements, which have to be adapted to local jurisdiction, but the trick is to follow the approaches of the parent companies and bigger markets and comply with local laws.
The pharma/life sciences sector is highly regulated; international, regional and local rules apply. These rules are mostly mandatory, and there is no room for individual solutions and interpretations. In addition, Hungary has a strict and (over)regulated legal environment. It is a relatively small market, and innovations coming from a small market are not always welcome. Templates and models already implemented and working elsewhere are expected to be followed in Hungary, which is not always the case.
What key risks do pharma businesses have to consider in distribution agreements? How do you help in this matter?
Distribution agreements must comply with competition law provisions, both EU and national, and it requires a separate set of thorough analyses. Another issue is the limited number of market participants with national coverage. For new ventures, entering the market is not easy and requires substantial capital investment. Solvency of small distributors is always a risk, which needs to be limited to the highest possible extent.
Exclusivity is another issue. Distributors prefer exclusivity when pharma companies need more market coverage, and leverage and compliance with competition laws.
Payment delays are the norm and payments from government bodies, including the Sick Fund and hospitals, are always late. When we draft distribution agreements we try to incorporate as many guarantees as possible to protect the interest of our clients, which include receiving payments on time.
What complexities arise in pharma agreements when government bodies are involved?
Government approved pharma budgets are always limited, and the need for medicinal products (including new, innovative products) always exceeds the appropriated central budget.
Pharma companies are rarely ‘equal’ with government bodies, they are not treated as equal parties, but pure suppliers. Pharma companies want to introduce new innovative products, and their largest consumer is the government, especially when it is about inclusion into the social reimbursement system. A recurring problem is that there is no room for effective legal challenge or successful litigation when the outcome is unfavourable to the manufacturer/distributor.
Another issue in Hungary is the constant reorganization of the health administrative organization, which includes regular personal changes, and overall results in dealing with a “faceless” organization.
As a leader in this niche, what have you found to be the biggest legislative impediment to progress in the life sciences sector over the past few years?
Legal provisions can be ambiguous and not well structured, while changes, other than they will certainly happen, are unpredictable. Government bodies have broad interpretation of legal provisions and set compliance requests that are stricter than the prevailing legal provisions. Public procurement laws are also subject to regular modifications, but in favour of the manufacturers and distributors. It would be nice to see at least an interaction between the market and the law, and regulators willing to listen to the market players.
As a thought leader, if you could incite legislative developments or change the law to facilitate your work in Hungary, what would you change?
Simplification in general would be welcomed. In Hungary specifically: clarify and provide consistent product promotion rules; simplify admission of new products into the social reimbursement system; avoid last minute changes that may affect the operation and budget of pharma manufacturers and distributors; set the national pharma budget in an amount that would meet the steadily increasing needs of an aging population; apply consistently public procurement rules; and set deadlines that the authorities must comply with.
How do you believe your past experiences help you as a thought leader in today’s life sciences industry?
You can compare pharma regulations to a maze. You know where to enter but you may never know where to find the exit. Our role is to understand the objective of our clients and assist them in many ways, including alternative solutions if plan A fails. It requires perseverance, and impeccable knowledge of all the regulations that apply and the government bodies we deal with.
Sight is a precious gift, so surgery in such a delicate area can cause apprehension; when these cases go wrong, or not as expected, the patient may decide to take matters to court. Jane Olver has extensive, specialised experience behind cosmetic eye surgery and speaks to us on how she helps when things go wrong.
What are the most common cases you deal with in cosmetic eye surgery instructions?
I most often see clients who are dissatisfied with their cosmetic eyelid surgery, either because it had not met their expectations, or had left them with a noticeable disfigurement such as visible scar, asymmetry, eyelid or canthal contour change.
Very often the client will tell me that they went to see their surgeon for one particular problem and they were “talked into” having some surgery they did not go to see their surgeon for; when that surgery then goes wrong, or does not give them the expected result they become unhappy. When they express that unhappiness to their surgeon, this often leads to a breakdown of the professional relation, as the surgeon cannot always see what their patient sees. What the patient really wants is for the surgeon to say is “I made a mistake”, or “Would you like to ask someone else to see you?”. They want their surgeon to know that they did a bad surgery, below the standard they would have reasonably expected from a competent surgeon of similar grade. As that often does not happen and the surgeon effectively rejects them, they decide to bring a legal claim for negligence.
Avoidable complications of eyelid surgery:
A proper way to avoid the above is for the surgeon to have first done a thorough pre-operative assessment, with measurements of the eyelids and their function, with examining for eyelid laxity, for dry eye. They should ask to see pictures of the patient when they were younger, and identify the patients’ expectations, only offering surgery which is both within those expectations and also within the skills of the surgeon.
In cases of professional negligence, how long can it commonly take to complete an investigation in the field of ophthalmology?
It usually takes about 12 to 18 months. Once I have done the claimants consultation assessment then the report is usually prepared within four to six weeks. After that it is up to the solicitors and the courts. I may be asked to provide a supplementary report if there are queries or new material provided, and to do a joint conference with the other expert.
At the assessment, I will make photographic documentation, measure visual fields, examine osmolarity of the tears for dryness, the eye pressure and examine the eyelids and eyes on the biomicroscope called the slit lamp. This allows me to put in fluorescein eye drops and see if there are surface problems related to the cosmetic eyelid surgery, or an existing pathology which should have been detected by the surgeon before the surgery and could have enabled them to advice their patient differently or tailor their surgery appropriately. This is where being an ophthalmologist is so important as it helps examine the eyelids and eyes, remembering that the function of the eyelids are not just to look beautiful, but also primarily to protect the eye through proper blinking and closing.
How difficult is it to produce a thorough analysis of a claim, and does this often depend on the patient/claimant? Are there many variables?
For a medical expert, the main thing about a potential claim is thoroughly reading the instructions and if possible examining the claimant in order to provide an independent medical opinion. One important variable is the condition of the medical material presented to me: if it is well indexed and paginated then my job is made much easier. If it is presented digitally it is easier to scan through. Often though I will request both digital and paper versions.
As an expert witness in eye surgery, to what extent do you get to engage the full capacity of your expertise?
Fully. With 20 years as a consultant and over ten years training prior to that, and still being in mainstream practice, I am able to draw on my considerable expertise and knowledge in order to be a medical expert. I think having the maturity and reputation helps me provide a sound and considered opinion.
How often is your critical analysis the game-changer in a claim, and what are the consequences for surgeons found to be liable for further eye problems?
This is a very difficult area. In such a small field as eye surgery I am likely to know most of the surgeons, either by name, or have worked with them professionally. In Oculoplastics I will know most of the British Oculoplastic Surgery Society (BOPSS) members. Therefore, I have to declare any potential conflict of interest and I do identify the capacity in which I know the surgeon. Many plastic and maxillofacial and even otolaryngology and head and neck surgeons often carry out eyelid surgery as it is within their training curriculum, but they may not always have the vast experience of an oculoplastic surgeon who only operates on eyelids, and may not have kept as up to date, so many of the claims I see are against surgeons who do not habitually carry out a large number of said surgeries.
Sometimes I may find that the claimant does not have a legitimate claim and that there has not been a breach of duty, and I must say so. My report is for the court and is impartial.
Professionally, I may find that one of my colleagues has made a breach of duty and I have to remain impartially critical, based on the facts having examined the claimant, read the clinical notes and done the literature search. It is not for me to predict what the outcome of the case will be, only to provide my opinion within the framework of my specialist field. I think most surgeons are professionally mature enough to realise that a medical expert is reporting on their observations and it is not a personal criticism of them.
What do you believe would be warmly welcomed by UK ophthalmologists in terms of legal reform in medicine and in your specialist areas?
I do think that UK ophthalmologists must be more transparent about how often we do various surgeries and our complication rates. This will help patients understand that there is no such thing as 100% successful surgery and that they can expect possible scarring, asymmetries, tear flow problems. This may reduce the number of claims, as realistic expectations are paramount. It can be through our yearly appraisal but there should also be an obligation through Care Quality Commission for private practice cosmetic surgery to be properly recorded, inspected and published.
Continued training and evidence of continued learning is also essential.
Currently, higher surgical training includes very little cosmetic surgery so the work being done between the Cosmetic Surgery Interspecialty Committee, the GMC and the Royal Colleges is paramount to laying the foundation for training and producing competent future cosmetic surgeons.
To ensure that solicitors are serving their clients well, solicitors need to attend to specific regulations and when these are not met, the Solicitors Regulation Authority (SRA) can intervene. Here at LM, we speak to Jonathan Goodwin who has extensive experience in prosecuting misconduct cases, however, up until recently, Jonathan has decided to turn his attention towards defending those under investigation. He informs us on the transition of defending solicitors on the SRA Panel, the challenges when defending those in the legal sector themselves and how his unique experience allows him to gain the best result for his client.
How did you manage with the transition of being a prosecutor for over 20 years, to now defending the solicitors under investigation? How did this alter the way in which you deal with cases?
The transition from becoming a prosecutor and now being available exclusively to defend solicitors in relation to complaints, investigations and disciplinary hearings before the Solicitors Disciplinary Tribunal (SDT) has been entirely straightforward.
I apply the same level of scrutiny and tenacity to clients I am defending in exactly the same way as when I prosecuted in terms of analysing the evidence, looking for the weaknesses in the prosecution case and achieving the best possible result.
What are common cases the SRA are faced with and as a defender, what challenges do they pose? How were these challenges different to when you are a prosecutor?
The variety of cases investigated by the SRA is wide and varied and can range from breaches to the Solicitors’ Accounts Rules, money laundering allegations, breach of undertaking and many more. Dishonesty often features in allegations raised by the SRA. There is a specific test that the SDT needs to apply in determining an allegation of dishonesty and it is important that expert advice is obtained by anyone facing such an allegation.
Having acted for professional bodies and individuals, how different are their cases and what do you do differently to deal with their cases accordingly?
The biggest difference between acting for a regulator and an individual is equality of arms and resources. A regulator has the resources to pursue a case and instruct the highest level of advocate if they so wish. Such luxury is often unavailable to an individual who has to fund the case personally. An individual will be concerned, stressed and anxious about the possible outcome, with the very real risk that the career which they have developed over many years could be abruptly brought to an end. With my unique level of insight and experience, I am in a position to guide, assist and represent solicitors through what can be a very traumatic process and achieve the best possible outcome for my client.
What is the most difficult aspect when defending solicitors? As the defendants are in the legal profession themselves, are there many disagreements during the case; if so, how do you deal with this?
One of the most difficult aspects when defending a solicitor is to persuade the SRA that the case lacks merit. As you say, given the respondent is a solicitor it can, on occasion, be a challenge to persuade my client that the advice and approach which I have recommended is the right way forward. However, that said, my experience generally is that solicitors recognise the need to turn to someone with the required expertise and experience relating to regulatory and professional discipline law and will be open and receptive to advice and the careful management of expectations.
What was the most appealing aspect of switching from a prosecutor for the SRA, to a defender for those they investigate?
My passion and drive is achieving the best possible outcome for my client, whether that be by persuasive written representations to the SRA that result in no further action, or a successful outcome following a hearing before the SDT. To help an individual save their career, practice and livelihood with the ability to continue to support their families is particularly rewarding. I achieve great satisfaction from helping solicitors protect their right to practice against the might of the regulator. My unique insight and unrivalled experience gives me the ability to do so.
Longing to learn and experience new things every day is part of what makes us human, and our next guest has always thrived in the progress and development of his skills and knowledge, to the future-looking benefit of human well-being.
Mr. Liguo Zhang is the chief partner of GrandwayLaw Offices and a well-known legal expert in the field of China’s securities and capital markets. Here Mr. Zhang talks with Lawyer Monthly about his legal upbringing, the segments and people that shaped him, and the steps that led him to hold the reputation he holds today in China.
What led you to embark on a career in the legal profession? What draws you to your specialist areas of M&A and financial transactions?
In the early 1990s, the trend of Chinese economic reform, development and international communication revealed a growing demand for high-level, professional and international legal services. Meanwhile, it took seven years of legal study experience at Peking University and several years of in-house experience, working in the central enterprise especially assigned to the US law firm, for the elite lawyers’ ways of working, professionalism and social influence to have made me comprehend it, recognize it and more importantly, long for it. At that time, all these strengthened my confidence to engage in a legal career, so I quit the secured job and dedicated myself to a life as a lawyer.
By some coincidence, I had the opportunity to participate in financing transactions and M&A when I’d just began practicing as a lawyer. In the process of providing legal services, I have obtained a better understanding of the relevant industries, enterprises, teams and managements. Furthermore, gaining legal knowledge surrounding the companies, securities, land, taxation, environmental protection and intellectual property etc. called for professional research into the constantly changing, and at times even disordered, regulations and law environment. This period also involved providing personalized resolutions and plans for specific enterprises’ historical evolutions, property rights form and corporate culture via the research mentioned above. Though the stress and the challenges of the whole process were extremely tough and made me over-reach myself, the achievement of clients, their sense of triumph, and high praises of our work made me believe that all the hardships were worthwhile. It is a fortunate and honorable feat to be a securities lawyer, and to create greater economic and social value for enterprises through the capital market with the professional knowledge and vast experience.
Within these segments, is there a particular legal sub-category you are more passionate about? Please explain.
During the course engaged in the relevant legal services, I felt more passionate about the Business of IPO, for the reasons that these businesses are more challenging and of greater significance because of the development of corporates in the Chinese legal environment, and especially for the higher requirements of the intermediaries’ knowledge and experience, and greater difficulty and strength in completing the work.
If you never chose to be a lawyer, what other profession might you have pursued and why?
For the possibility that I had not chosen to be a lawyer, I would have chosen to engage in private equity investment, because I love to know and study different kinds of industries, enterprises, entrepreneurs and management teams. I also mostly enjoy helping and supporting the aspiring enterprises to better develop, in order to better serve human well-being.
In retrospect, if you could return to a highlighted moment of your legal career, what time would you chose and why?
If I had the fortune to experience a time in my legal career once again, I would choose the time when I was involved in a whole IPO process, starting with the due diligence, analyzing all the legal issues we found during the process, participating in the plan making, drafting relevant documents, taking part in the deliberation of shareholders meeting, till the declaration of full set of materials. At the time, I committed myself not only to the development and accomplishment of the project with high effectiveness, but I also established profound friendships with the entrepreneurs and intermediaries. More importantly, I enjoyed the concentration and quiet state of mind with active thinking and creativity.
What would you say have been the most valuable legal experiences or cases that have brought you to where you are today?
My most valuable experience of securities law originates in the participation of hundreds of restructurings and establishments of enterprises’ IPOs, and the businesses of public companies’ acquisition and reorganization. The most fortunate achievement has been proposing practicable resolutions for extremely complicated and difficult corporate issues, providing ways of access to and utilization of the capital market with prospective and constructive legal opinions.
How did being the becoming one of the most influential Chinese lawyers in the top 10 impact your legal career? What do you think got you such a prestige recognition?
With 30-years securities working experience, the law firm, the team and myself have grown up with the Chinese capital market. It is an honor to see the professional attitude and quality of work, the dedication of lawyers we served in the process of providing the legal service, and the supervision departments, clients and peer law firms’ highly praised.
What motivated you to be the first to practice securities law in China and how did you undergo the process?
Due to some coincidences, and the system ®ulations for securities lawyers, the firm I worked for was one of the first law firms qualified to practice securities law. I was also one of the first group lawyers who were qualified to practice securities law. The Chinese capital market has just started its development at that time and there was tremendous demand for legal services in the capital market. As someone who just finished working abroad for a US law firm and came back to China, this was quite fascinating for me. Therefore, I devoted myself to the area of securities law, and no matter how the capital market changed, I have always focused on providing high quality legal services and improving the professional skills of the associates in my law firm and myself.
When giving speeches at Peking University Law School, how does it feel to be paving the way for the future lawyers? What key advice do you have for them?
My legal dream sailed from Peking University, so every time I go back to give a speech at the Law School of Peking University, I would feel a lot of gratitude, warmth and desire to assist or share my understanding of a career as a lawyer, and how to become a good lawyer, especially a non-litigating lawyer, with the students who want to be a lawyer in the future, so that I can do my part to improve the transparency, publicity and fairness of the Chinese capital market.
My suggestions for them are:
(1) being a student, they should focus on study, not only in the legal area, but also in philosophy, literature, arts, and English, to improve themselves to be international and professional;
(2) participate in social activities appropriately, no matter on campus or off campus to improve intellectual or social skills;
(3) choose a career in accordance with the ideals and qualities of themselves. The best career option would be something combined with fitness and interest;
(4) it is critical for an excellent lawyer to be focused, professional and honest.
Do you have further future goals? Are there avenues you still wish to explore in the global legal sphere?
My vision for the future is as follows:
(1) recruit more capable personnel through campus recruitment or other approaches to make Grandway more energetic, creative and accumulative;
(2) advance the all-sided reform within Grandway, not just improve the system, but expand the areas of our practice to make Grandway a more sustainable, comprehensive, international and competitive law firm. Additionally, foster more specialists in our practice areas;
(3) under the influence of globalization, especially with the Internet and artificial intelligence, I hope to figure out a way to combine technology with the legal services in the capital market to free our professional lawyers from some repeating and miscellaneous matters and provide our clients with higher quality.
With career experience of over three decades and an exposure to the capital market for over two decades, I have witnessed the development of the Chinese capital market and participated in a number of land-marking and ground-braking cases; some even managed to bring the company back to life. There are a lot of tastes, which are valuable for me. It’s really hard to choose one.
What are your objectives in 2017?
1) to properly expand Grandway's scale (including crews and branches) and improve the diversification of Grandway's business;
2) to further reform Grandway's system, enhance Grandway's creativity, inheritance and accumulation;
3) to reinforce the cooperation with advanced techniques intermediaries, promote the integration of Grandway’s professional legal services with Internet and artificial intelligence, and strive to obtain preferable performance.
What are the parts in your life that you will always persist firmly?
Ideal, belief, dignity and happiness.
How do you measure your success?
Success is much more like a state of mind or a feeling within. It is a treasure to maintain inner peace.
Meanwhile, it also brings me a lot joy to know that my existence and endeavors makes my families, friends and colleagues dignified and happier.
Furthermore, I enjoy the happiness, recognition and dignity brought with my commitment, knowing that my career is in accordance with my ideals and beliefs.
As the legal world is more global than ever today, immigration in the business world is an integral and essential part of strategic planning for international businesses, entrepreneurs and private clients. Talking about how to utilize the tool of immigration in meeting the needs of global citizens is Linda Lau, Principal of Global Law Group, a US law firm.
How have immigration policies shifted in America?
The design of the immigration system was enforcement oriented, focusing on deporting status violators. There has not been much discussion as to the challenges involved by inheriting a broken US immigration system. Recognising the problem, the legacy Immigration and Naturalization of Services (INS) was restructured, splitting into three different service components: U.S. Citizenship and Immigration Services (USCIS), focusing on immigration benefits; Customs and Border Patrol (CBP), focusing on border inspections and Immigration, and Customs Enforcement (ICE), enforcing against immigration violations. The intent is that the global business community could navigate through the US immigration system with more business-friendly policies.
The US immigration policies has made noticeable efforts to accommodate the demands of the global business community as many investments now involve non-US owned real estate projects mushroomed in US cities. This is evidenced by the rise in applications of immigrant investors, international managers and aliens of extraordinary abilities in business or other fields.
What is the biggest and most prominent challenge businesses face when trying to obtain a visa and residency in the US? What would you recommend to overcome this challenge?
The biggest challenge is to change the mindset of clients by asking them to incorporate the needs of any related party and each family member. This way, we can join hands to navigate the various visa options as many considerations are involved in terms of visa types for different members of the businesses and each family member. This may include international managers, treaty investors, H1B specialty workers, students and interns, etc. Take the time to get appropriate referrals for proper counsel. Once I had a client who came to see me and told me I was the 26th lawyer consulted before retaining any counsel, I was glad she did not look for the 27th lawyer for further consultation.
What is the reason for successful execution of a project in US with immigrant investor funding?
Even though the EB5 Immigrant Investor program has been available since the 90’s, most of the projects have utilized EB5 funds from investors to finance their projects during the last 6 to 8 years.
Some of the projects I have structured resulted in better execution than others due to careful planning and the willingness to engage highly skilled professionals in the legal design phrase.
What developments are you hoping to see for immigration law to progress? Is there anything you would change if you could?
I would like to see an immigration system that has separate management and processing for cases involving investments, businesses, creative talents and professionals apart from other benefits so USCIS can be true advocates for these applicants.
Thus, trained adjudicators can stay focused in facilitating immigration benefits for economic growth. An example in illustrating this point would be that under the US immigrant investor program, creation of 10 jobs is required for each investor, whereas other countries understand that once there is infusion of foreign capitals into their economy, jobs will be created. If the US law and policymakers would be convinced of the same concept, unnecessary delay and erroneous adjudications could be avoided without the necessity to do an elaborate job count analysis.
Is there any form of common misconceptions on the knowledge of the US immigration policy which causes frequent (somewhat unnecessary) difficulty for your role?
The misconception that one size fits all is prevalent among clients. The US immigration application is a customized process. The actual application form is only 10% of the entire package with the remaining 90% being prepared according to the actual facts of the case. This is the reason that clients should be proactive and engaged in the process.
As a Thought Leader, how do you have to adapt the way you approach cases when dealing with multi-million dollar investors, in comparison to individuals or small businesses?
I consider all clients the same as each came to me for a check-up like seeing a doctor. I analyze the facts and provide a diagnosis and treatment plan. Thus, thorough understanding of the background and history of each client including projects is a must.
Can you talk to LM about a specific case you have dealt with in the past, to which you applied particular thought leadership?
There is always a child’s face behind a visa, as 9 out of 10 cases have families where there are children involved. When the dad must split time between his home country and the US to engage in his business activities, the children and their mother would be in the US so the children could pursue their education. I would explain to the parents the price the children have to pay in life when the family is separated in the pursuit of “happiness” and “prosperity”. Family culture and spirituality are core to sustained economic interests of private client families from generation to generation.
Having established one of the first ever commercial law firms in Croatia, Marijan Hanzekovic, Founder & Managing Partner of Law Firm Hanžeković & Partners Ltd., believes education and improvement are paramount to the successful development of law practitioners, and here details his thought leadership in the progress of hundreds of young professionals in the Croatian litigation arena. Marijan also discusses the challenges the firm faces, its accomplishments in the dispute resolution field, and touches on the need for deregulation, in particular regards to the Croatian Civil Procedure Act.
Have there been any recent regulatory developments to affect your work in Croatia? If so, please tell me about them.
The main developments I would single out are the amendments to the Croatian Income Tax Act. They introduced significant changes, amongst others, capital gains became subject to the income tax rate of 12%, plus city surtax, if applicable.
Tax on capital income is withheld at the source without the individual being entitled to claim expenses or personal allowances. An obligation to submit an annual personal income tax return does not arise. Therefore, it can be considered that constant changes in the tax system do not encourage a favourable entrepreneurial climate and investments in the domestic economy.
As a thought leader, are there particular procedures you would change to facilitate your work?
I believe that deregulation is extremely important. The Croatian Civil Procedure Act constantly reduces the rights of parties involved in the procedure. Also, there are too many municipal courts whose practice is not uniform.
Furthermore, the Supreme Court of the Republic of Croatia is not sufficiently efficient. The Supreme Court should be more active in areas such as discussing current issues regarding court practice, ensuring the uniform application of laws and declaring regular or extraordinary legal remedies if required by the law or separate by-laws.
As I see it, there is no reason for the practice of municipal courts to be different if there is a regulatory mechanism, and there is also no reason for the Supreme Court not to take a stand on important questions.
What is the biggest challenge you face as an Arbiter?
As an Arbiter at the Permanent Court of Arbitration of the Chamber of Commerce of Slovenia, of the European Court of Arbitration in Strasbourg and the International Chamber of Commerce in Paris I have participated in numerous arbitration proceedings.
Arbitration was intended to be an alternative to litigation in order to provide contracting parties with a more efficient and commercially fair system, however, I believe that it has not yet been accomplished.
In my experience, there is general dissatisfaction relating to the cost and inefficiency of arbitration and the significant lack of relevant case law.
What is the biggest difficulty you face when offering legal assistance to foreign enterprises?
When dealing with foreign clients it is always a challenge to introduce them to the intricacies of the national legal system and its regulations, especially when clients come from common law countries. A lot of work has to be invested in explaining national legislation and the differences between the systems, in order for the client to adapt its agreements and behaviour accordingly.
Your firm has participated in some of the largest and most significant transactions in Croatia. What were these transactions and what difficulties did they pose? How did you overcome that?
Our firm has participated in the biggest infrastructure project in Croatia, namely the granting of the concession for the construction and operation of the new passenger terminal of the Zagreb Airport. The firm has had a significant track record in infrastructural projects since 1995, when the Croatian Government granted the first motorway concession i.e. for the Istrian Y.
As the representative of the concession grantor we were engaged in the preparation of the tender documentation and concession agreement, as well as the negotiation of the direct agreement and the financial package.
Since the transaction took place immediately before the Croatian accession to the EU, we faced difficulties in adjusting the Croatian legislation to EU legislation and the practice of the European Court.
The difficulties were overcome through permanent cooperation of all the ministries and other competent authorities in the Croatia.
Our firm has also participated in the two most significant transactions in the banking sector. We represented BANKA INTESA in the acquisition of the 2nd largest bank on the Croatian market as well as ZAGREBAČKA BANKA d.d., the 1st bank on the market, when UniCredit Bank successfully entered the market. These transactions were challenging, as at that time Croatia had very restrictive foreign exchange legislation i.e. Croatian citizens could not deposit funds abroad nor acquire foreign shares.
What is the most rewarding aspect of your role?
I have always strived to provide the best possible services with a team of individuals with the best expertise, while ensuring a healthy work environment and fostering any and all further education and specialization of my employees.
I have never taken legal representation and the provision of legal services lightly and have always strived to provide my clients with full and comprehensive services.
In the end, one's success is measured by client satisfaction, whether it is a big or a small client, a natural person or a big corporation. I believe I have given my best in this regard, which I further believe has been recognized by my clients, whose trust I have enjoyed for many years.
What was the biggest challenge when assisting with preparation in the introduction of free legal aid and the biggest reward?
I was a member of the Assembly Working Committee when the Croatian legal aid act was passed in 2008. At the time, it was challenging to settle differences between NGOs and law firms/lawyers providing legal aid. A compromise was reached at the point that free legal aid can be offered by registered NGOs that employ qualified legal professionals. I believe that everybody is entitled to have access to quality legal assistance in any circumstances. Legal aid is a fundamental right of all people hence it is necessary that the state recognizes the importance of providing free legal aid.
What do you want to achieve in 2017?
I believe that it is extremely important to continually develop and follow global trends in order to maintain a successful business. Consequently, digitalization, as an important global trend, has been recognized as an imperative goal which needs to be accomplished. In our law firm, the aforementioned process is still ongoing and I hope it will be completed in 2017.
How do you measure your success?
I am more than proud to say that I have the privilege to work with more than a hundred young professionals, to see them grow professionally every day and become experts in the fields of their interests. I genuinely believe that young people are those who change the world and we should support them and give them the opportunity to succeed.
Do you have a mantra or motto you live by when it comes to helping clients?
Audiatur et altera pars. I truly believe that it is important to let the other side be heard as well, regardless of the situation. To run a successful business, amongst others, also means to adapt, to compromise etc. In order to do so, it is crucial to see a certain matter from a different angle and standing point and that is only possible if you let others speak and express their opinion. All things considered, it is crucial to listen to the other side.
