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From chemicals, biocides and pesticides, to consumer products, tobacco, vaping products and food, our next thought leader thrives in a challenging environmental law landscape, and when it comes to EU prohibitions on chemicals, EU trade barriers and now Brexit, Marcus Navin-Jones, Partner at the Brussels office of niche law firm Keller and Heckman LLP, is well placed to assist.
Here Marcus talks to Lawyer Monthly about his and the firm’s thought leadership in the environmental law landscape, in particular the kind of cases he deals with, the implications of Brexit and the EU in this legal segment, and about the laws that he would like to see changed for the better.
What environmental issues surround most of the cases you deal with?
Chemical defence
Over the past 6 years or more, I have built a reputation primarily in the field of chemical defence, i.e. in defending the sale and use of certain chemicals in the EU. The frontline in chemical defence has been leading appeal cases before the European Chemicals Agency (ECHA) Board of Appeal (BOA) in Helsinki, Finland.
Over the past year or so, I have successfully led industry appeals in a number of cases before the ECHA BOA – to obtain an annulment of the requirements initially imposed by the ECHA. The Appellants included: Dow Corning and others (A-017-2015); Huntsman/BASF (A-012-2014); and TPP Registrants (A-018-2015).
Before that, I assisted on the first appeal regarding REACH Substance Evaluation, which established the ability for REACH registrants to bring so-called group or collective appeals before the ECHA BOA. This had never happened before.
I also counselled, and led the argumentation in the seminal Honeywell case – which was the first case to proceed to Oral Hearing before the ECHA BOA.
In addition to the appeal cases before the ECHA BOA, I increasingly advise and take cases before the EU Courts - such as the current Esso Raffinage case before the General Court (T/283-15).
Consumer products - I advise on product safety and product liability issues regarding consumer and other products, particularly consumer products that are directly impacted by EU chemical legislation such as:
EU and UK market access and barriers to trade (including BREXIT issues) - Having worked at the European Commission on issues regarding free movement of goods, my background is in securing market access for goods entering the EU Single Market and other European markets. Following the UK referendum on EU membership, I increasingly advise on Brexit issues and on issues regarding free movement of goods issues and barriers to trade.
What are the common avenues of resolution for these types of cases? Are there particular complexities involved?
EU chemical law is particularly complex. With scientists that work within K&H itself, we often advise on issues outside the domain of consultants or other law firms. Regarding the Chemical Defence work, we experience an increasing desire to settle cases before an ECHA BOA decision.
Have there been any consequences in your environmental law work pertaining to the recent Brexit vote and the linked EU law?
Since June I have spoken widely on Brexit and its impact on the chemical industry in front of different audiences, including CEFIC (the European Chemical Industry Council) members, but also at conferences in Washington DC, US; Toronto, Canada; Nice, France; and elsewhere. Since the 23rd June 2016 referendum, there has been significant increase in the number of questions regarding Brexit not just from UK companies, but also from US and other companies.
In the short term, there may be divergences in the interpretation and enforcement of EU law in the UK. In the longer term, the impact on UK Chemical legislation could, potentially, be significant. The impact on EU chemical legislation may be comparatively smaller but, potentially, no less important.
As a thought leader, what Belgian or EU environmental legislation do you believe could/should be amended in the near future?
One of the core issues for the chemical industry on both sides of the Atlantic will be the extent to which TSCA reform (in particular the Frank R. Lautenberg Chemical Safety for the 21st Century Act amending the US Toxic Substances Control Act) will lead, or not, to a convergence of chemical policy with EU law in the future. In particular, one of the questions being whether risk management measures adopted in the EU will also be adopted in the same way, and relate to the same substances, in the US and vice versa. Where regulatory action is considered in one jurisdiction and then rejected on valid grounds, it would be helpful to have a similar and consistent approach elsewhere.
In the EU, the Court Ruling in case C-106/14 regarding calculation of the 0.1% threshold weight by weight presents significant practical and pragmatic challenges for industry and law enforcement bodies in practice. Improvements could be made to the BPR, REACH and related legislation such as the REACH Implementing Regulation on Joint Submission and Data Sharing, etc. For example, implementation of the requirements regarding vertebrate animal testing only as a last resort, could be improved. The revision of the GPSD will likely be of importance to downstream users and therefore the upstream suppliers. The New Tobacco Products Directive contains requirements relating to e-cigarette and e-liquid products that are, arguably, not enforceable.
As a thought leader, how are you helping to change the European/Belgian environmental legal landscape, in terms of chemical regulations, waste, or packaging?
ECHA policy and approach to, for example, REACH Dossier and Substance Evaluation, has changed in response to the cases brought before the ECHA Board of Appeal – both in those cases where the ECHA BOA has issued a decision in favour of industry, but also in those cases where the ECHA BOA has not issued a decision, or issued a decision in favour of ECHA. I currently have another case before the ECHA Board of Appeal relating to Substance Evaluation and the extent to which REACH registrants can provide sensitive information on downstream exposure and uses (SI Group-UK Ltd and Others, A-006-2016), giving the ECHA Board of Appeal the opportunity to positively influence and clarify ECHA policy.
How does being secretary, and founder, of the EU Chemicals Board of Appeal Forum contribute towards your thought leadership in this legal segment?
The EU Chemicals Board of Appeal Forum was established as a means of exchanging information on ECHA BOA decision-making. It is not associated with ECHA, with one particular trade association or with one particular company. It is therefore a truly independent group of experts primarily populated with academics and other commentators. Their views and insights, particularly with the insights from other Boards of Appeal, is particularly interesting in understanding how the ECHA Board of Appeal compares to other BOAs in the EU, and the procedural and other requirements the ECHA BOA should therefore adhere to. I have also convened conferences and working groups, lectured and published academic pieces on the ECHA Board of Appeal. A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal .
As a thought leader, do you have a mantra or motto you live by in service to your clients?
I believe there should be a direct correlation between our client’s success and our success as a firm. Success can be difficult to define but, in essence, I want every client to be bigger, stronger and better established in the future, than they are today – and I want that success to be a direct result of what we, particularly I, have had direct involvement with. Our success is our client success.
Back in May this year, Lawyer Monthly awarded and showcased hundreds of top professionals from the legal world, in its Women in Law Awards 2016. To follow up on the impact of the award, and gain a little more insight from our winners, this month we caught up with Karishma Vora, an outstanding barrister at 4-5 Gray’s Inn Square, and Winner of the ‘Rising Star of the Year’ Women in Law 2016 award.
Please tell us about yourself and your key achievements.
I am a barrister specialising in commercial litigation and arbitration. I am one of a handful of barristers dual qualified in India and England, with just three of us who practice in both countries. This niche is my biggest achievement. I practised litigation in India for six years before relocating to London seven years ago.
I came to London to serve the vast number of disputes for or against Indian clients, in which English courts have jurisdiction or where London was the seat of arbitration. Whilst I have worked a lot for clients of Indian origin in the UK as well as in India, I also work for clients who have invested in India.
I am now at a set of chambers called 4-5 Grays Inn Square in London that is well known for commercial law amongst other areas of practice.
I am an alumna of the London School of Economics, where I have taught commercial law, and am presently elected to the Gray's Inn Barristers Committee for a three year term.
Could you tell LM briefly about your win and what your initial response was?
I was thrilled to receive the ‘Rising Star Award’ conferred by Lawyer Monthly: Women In Law Awards 2016. It felt great to receive acknowledgement and recognition for my achievements to date from within the legal field.
The award was well received and much appreciated. A bencher of Gray’s Inn congratulated me when the results were announced. She jested, however, that the challenge about being a rising star is that one must 'arrive' thereafter, and I am conscious of living up to the expectation.
What do you feel is your strongest quality, and that which attracts success?
I have been exposed to many cultures, which has given me level headedness that makes me resilient and approachable. I am conscientious and determined for everything I want in life for myself and for my clients. This, combined with the fact that I work hard, attracts success.
Clarity from the onset, not using confusing legal jargon, being abreast of commercial realities and being able to relate this directly to what is important to my clients, has been identified as a strength.
What legal work have you been involved with since?
My legal workload ranges from interim injunctions to cross border trials. My area of specialisation is business disputes such as shareholder disputes, directors duties, breach of general commercial contracts (such as franchise agreements, agreements for the sale of goods), loan defaults, guarantees, mis-sold swaps etc. I am increasingly being asked to advice on the impact of Brexit.
The value of claims has ranged from low value claims to claims worth $79 million, with instructions received from solicitors in both England and India.
I have also accepted instructions directly from lay clients under the ‘Public Access Scheme’ or under the ‘Right to Conduct Litigation’. This makes it easier for companies or individuals to access high quality legal services at comparatively inexpensive prices.
What are your goals moving forward with your practice and professional pursuit?
I want to transfer my international expertise to domestic English disputes. Over the 10 years I have practised as a lawyer, I have been instructed in cases before Tribunals, County Courts and the High Court, and I want my legal experience to hold greater value than my cultural background.
Is there anything else you would like to add?
Winning the award has drawn praise from colleagues. The appreciation that I have received denotes people in England are now watching what I do, which is a tremendous responsibility to have.
Following the recent headlines surrounding the WikiLeaks, the Panama Papers, and thousands of much smaller cybersecurity breaches around the world, legislation and action related to the protection of data and cyber processes is increasingly necessary, and while governments and other parties do attempt to implement ways of managing breaches, the threat of cyber-attacks cannot be shrugged away.
This month Lawyer Monthly has heard from Aaron Simpson, Partner Hunton & Williams member of the firm’s global privacy and cybersecurity team.
Aaron was based in New York since 2002, and moved to the firm’s London office in July 2016. He advises clients on a broad range of complex privacy and cybersecurity matters, including state, federal and international privacy and data security requirements as well as the remediation of large-scale data security incidents. He helps clients identify, evaluate and manage risks associated with their collection and use of information.
What are the common of cyber law matters you regularly advise on? What particular challenges do these matters present?
Generally speaking, my cyber practice revolves around significant data breach events. This includes leading internal investigations into suspected breaches, managing the notification process in accordance with applicable law and contractual requirements, and addressing inquiries from regulators. In addition, given the stakes involved for many companies, I also engage in many proactive legal services in the cyber context, including the development of incident response plans and other breach preparedness tools, as well as negotiating commercial terms in data intensive agreements, which are increasingly common today. Now that I am based in the UK, I am assisting clients across the EU who are gearing up for enhanced breach notification requirements arising from the GDPR.
There are many challenging -- but interesting -- aspects of practicing law in the cyber arena. The first and foremost is timing. There is an incredible amount of time pressure facing breached companies, both from a regulatory and normative perspective. The public is very interested in these events, and they are widely covered in the media today. Thus, getting the team onboard quickly and developing an understanding of the key facts, within the expectations of regulators and the media, can be quite challenging in certain circumstances.
In addition, from a legal perspective, bridging the gap between various legal regimes in different jurisdictions can present challenges. We have been fortunate to have significant experience working on breaches of a global nature and so are quite familiar with requirements around the world. Nevertheless, these requirements are a moving target, and in many countries they are more art than science, in that they are a result of regulatory guidance rather than strict legal requirements.
Which industries do you find are the most prone to cybersecurity issues? Why do you think this is?
No industry has been spared when it comes to cybersecurity. There are so many different motivations for why a company’s data would be targeted. For criminal hackers, the retail industry has been a primary focus given the nature of the payment card data that they process. But retailers would be of less interest to nation-state actors, whose motives could be more focused on learning information about processes and technology in place. In addition, there are hacktivists attacking corporate networks for any number of reasons, including to cause embarrassment. In this regard, all companies are at risk.
How do you personally help your clients identify, evaluate and manage risks associated with data storage and management?
At the end of the day, I am a lawyer and not a technologist. Thus, rather than assisting with technical risks, I assist with the management of risk from an administrative and legal perspective. I start with identifying the organisation’s main data stores and what data are held in those data stores. Then I also look at how that data is moved within the organisation. Once I have a detailed knowledge of the organisation’s data profile, and what compliance and security measures are in place, we are in a position to identify and evaluate the legal risks associated with the data they hold and their systems. When doing so, we look at a variety of legal frameworks applicable across the globe, as well as to recognised data security standards and industry certifications.
The business world is always looking for ways in which to fight cyber-crime; as a thought leader, how would you say legislation could be changed to do this to a better extent?
If the goal is to protect data and data subjects, I think that policymakers need to tread very carefully. Developing prescriptive, proactive requirements generally does not help protect data. To the contrary, it forces companies to shift their focus from protecting data, something they know how to do far better than policymakers, to check the box compliance. Even worse, in six months’ time they will be checking boxes that are no longer relevant given technical advances. And for most legislative bodies around the globe, updating legislation is not something that happens with sufficient pace to keep up with technological change. In my view, the best path forward, from a cyber policy perspective, is to require regulatory notification of meaningful breach events combined with the developing of a standard of care that is capable of evolving with changing technological means. The standard of care concept is important, as it cannot be the case that every breached company has committed a legal violation. In many breaches, particularly those involving sophisticated nation-state actors, a company with perfectly reasonable safeguards in place can still be breached. In other cases, breaches clearly result from a negligent failure to safeguard information. In those cases, enforcement actions should be taken, and the results of those enforcement actions should help to flesh a meaningful standard of care.
Technology moves at a fast pace and new ways in which to break the law in cyber space are being found all the time. Can legislation ever keep up? How?
I don’t believe that cyber criminals are put off by laws. That’s why they’re criminals. The truth is there is a cyber arms race taking place at this time, and companies are well-advised to look to their information security colleagues, and not legislators, for help in defending against cyberattacks. Given the nature of the threat, cooperation among and between both industry and law enforcement, although at times controversial, is also an important piece to the puzzle. Of course, finding the right balance between privacy and security when it comes to such information sharing initiatives can present challenges.
Do you have any thoughts on the recent cybersecurity scandals involving Yahoo and the Panama Papers?
These incidents provide good examples of how ubiquitous the cyber threat has become. All companies, including technology companies and law firms, are potential victims. The Panama Papers case was alleged to have resulted from a disgruntled employee, which is often an underappreciated risk for companies focusing their efforts on outsiders. Companies can learn from these events so that they are prepared to address breaches arising from all of the various threat vectors, including cybercriminals, nation states, activist groups and insider threats.
Is there a prominent case involving the ‘remediation of large-scale data security incidents’ in which you have applied particular thought leadership? Please explain.
At Hunton & Williams we have handled well over 1,000 security breaches since the first breach notification law in the world in California came into effect in 2004. Many of these breaches have been watershed events in the industry and have served to shape how companies respond to these events. I am particularly proud of the work we have done on behalf of clients in this arena on a global scale. As I mentioned, outside of the US, breach notification law has been more art than science in the past decade. Through our work, we have developed significant expertise in assisting clients with responding to breaches at scale that impact numerous jurisdictions around the globe. This is very challenging work that requires a nuanced understanding not only of the legal requirements around the world, but also of the practical business considerations necessary to help clients manage extralegal – and in many cases existential - risks to their business.
Do you have a motto or mantra you live by in assisting your clients with cyber law?
Robert Mueller, the former US FBI Director, famously quipped that “there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.” Knowledge is power, and understanding the ubiquity of today’s cyber threat is critical to ensuring that you are prepared to successfully manage a data breach event.
Is there anything else you would like to add?
Organisations that manage cyber security successfully are those who have moved information security from the dusty basement to the C-Suite. How you secure the data entrusted to you is a strategic management issue and, in today’s day, simply must be embedded as a core value within your organisation.
Regulations, legislation and directives surrounding trade are crucial in protecting businesses that enter into contracts and agreements with others, and also provide resolutions when issues are encountered. Here Michelle Schulz, co-founder and co-chair of Gardere’s International Trade Practice gives her take on this matter, and highlights her thought leadership in the global trade sector.
Michelle Schulz is co-founder and co-chair of Gardere’s International Trade Practice. She also co-chairs the firm’s broader International Practice Group, which provides end-to-end solutions in international business transactions and litigation.
As a leading authority in the international trade and compliance arena, Michelle represents a range of export and import clients in matters relating to compliance with US and international regulations such as the International Traffic in Arms Regulations, the US Export Administration Regulations, and the various embargo and sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control.
Since you began practicing, how have you seen the international trade scene evolve, in particular regards to arms trade, import/export, and embargo and sanctions?
International trade rules and regulations can change on a daily basis, and some of those changes can be quite dramatic. Just in the last few years there have been new sanctions on Russia and reduced sanctions on Cuba and Iran. While the reduced sanctions have not fully opened Cuba and Iran for business with the US, many companies are already preparing to enter these markets. For foreign subsidiaries of US companies, there are already opportunities to conduct business in Iran. On the other side of the spectrum, the sanctions on Russia limit financing transactions and certain oil and gas transactions.
What would you say were the key legislative developments to help international trade in the last few decades? How have they affected your work in your specialised fields?
In addition to ECR, free trade agreements are some of the most important developments. The world is an increasingly global market, and the US’s place in that market depends on maintaining good relations with its current trade partners while expanding into new markets. We’ve seen a number of foreign countries enter into multiple free trade agreements, thereby providing an incentive to shift trade to parties to those free trade agreements. These agreements generally provide for reduced or eliminated tariffs between the partners and controls on government support for state-owned entities. The US is currently debating whether to approve the Trans-Pacific Partnership, which includes 12 countries. If approved, it could significantly impact trade throughout the Asia-Pacific region.
As a thought leader, how are you working to change the international trade landscape for the better?
Over the past several years, I have had the privilege of serving on the President’s Export Council Subcommittee on Export Administration (PECSEA) in Washington, D.C. The PECSEA is a senior-level advisory committee to the US Department of Commerce, and ultimately the President, on ECR. We have worked alongside the Commerce Department to reduce the regulatory burden on US exporters through regulatory reform and outreach. As part of the PECSEA’s outreach subcommittee, I have worked with the Commerce Department and industry leaders to expand outreach to exporters of all sizes. In addition, I chair the PECSEA Data Transmission and Security Subcommittee, which aims to update, streamline, and improve dated export regulations on technology. For example, we have assisted Commerce in the development of the new cloud carve-out in the new definitions rule, providing exporters with a safe harbour when transferring or storing certain data in the cloud. We have also worked with the Commerce Department to help simplify overly complicated encryption export regulations. The simplification and updating of US export regulations has dramatically reduced licensing and other requirements for exporters.
Do you have a thought leader motto or mantra you live by in your international trade work?
A thought leader whom I greatly respect told me once, “You work for your team.” Now I try to follow this mantra to in all aspects of international trade. The most effective leaders in our field listen to key stakeholders and take their opinions seriously. This approach has served me well whether I am advising clients in a crisis situation, building a compliance program, training personnel, or handling day-to-day challenges. Our trade team offers unique insights from different perspectives (e.g., enforcement, Customs brokerage, technology). If you are drafting an export compliance manual in-house, did you talk to Human Resources about how they screen new employees, what works for them, and what doesn’t? Did you solicit comments from sales personnel? I believe working for your team improves your own performance and effectiveness.
Is there anything else you would like to add?
Expanding from a domestic to international company can be challenging, but if done properly it can bring new markets and opportunities. Consider that the US has a population of approximately three hundred million while China has over one billion. Add in the rest of the world and you have a giant potential market. Companies considering international trade should invest in developing their policies and procedures up-front so they have smooth sailing as they grow.
Computer forensics is the intricate science behind investigations and analysis of computer data in order to find evidence and information pertaining to a legal case. This can range from scrutinizing messages on a smartphone device, to sifting through Gigabytes of data on hard drives, or even cloud storage.
This month Lawyer Monthly hears form Craig Reinmuth, a top professional in this segment and the President of Expert Insights, PC, a US-based computer forensics firm. Craig talks about his role, the difficulties therein and the win-win factor of involving a computer forensics expert firm in litigation proceedings.
In cases pertaining to digital forensic investigations, what is commonly involved in your role and how lengthy and complex can the investigation process become?
My role is directly tied to the complexity of the case. Costs are often a big concern with litigation. I therefore encourage counsel to consult with the expert as early as possible in order to develop a strategic plan that will be efficient in the long run. This includes discussions relating to the computers or devices that are most likely to contain relevant data, taking steps to preserve electronic data, and the approach to be taken to obtain the highest level of cooperation from counsel for the opposing party. Should opposing counsel not be cooperative, I will work with counsel in filing appropriate motions with the court to assist in assuring their client obtains the digital data they are entitled to.
What are the primary obstacles in obtaining evidence and facts in order to provide a thorough analysis of digital information?
There are two primary obstacles. Number one, cooperation of counsel. The quality of upfront meet and confer conferences to come up with a mutual agreement significantly enhances cooperation. To gain said cooperation, instead of going after 20 to 25 laptops, an agreement can be made to limit the initial imaging to four or five computers of key people. Based on the review of the data contained on those four or five, sufficient relevant information may be obtained, or you may only need to collect one or two others. Also, assure them procedures will be employed to seclude privileged communications from searches.
Number two, spoliation. Naturally the preference is for the data to be preserved so that it can be ascertained which party is making valid claims. But if the data has been erased beyond recovery, this cannot take place. Nonetheless, I believe digital forensics is a win-win situation. If the data is there, we get to the truth. If it is not there, the party pursuing the digital data is likely to have even a stronger case and win the case based on spoliation alone. At a minimum, material sanctions or adverse inference rulings can be obtained.
How does Expert Insights provide a different approach to the digital forensic process?
Firstly, by not accepting “no” for an answer. Digital evidence leaves behind a trail. By reviewing recovered deleted files, text messages, internet activity, smart phone data, USB history reports, “recent” file activity, “cookies,” GPS data, and information from the registry, a timeline can be put together that will often solve the mystery. A review of this information will also make it clear what electronic data has not been submitted that should have been (e.g. backup drives) and other locations relevant data may reside (e.g. cloud).
As contrasted to electronic discovery, digital forensics can trace documents that were permanently erased prior to submission of the device (volume shadow copy of hard drive), track where the person has been going on the Internet (which can expose what they were researching), and where they may have dumped copies of relevant or confidential files for their future use. “Recent” file activity can disclose activity the individual was up to prior to release of the computer.
Second, by finding ways to provide assistance in every stage of the litigation process, including developing case strategy, the discovery process, analysis of the data, and providing testimony (See table below). This includes developing a clear upfront understanding of the facts and legal positions of the parties prior to reviewing the digital data.
Can the analysis of a large amount of electronic data take a long time? How do you minimize this while still obtaining the required results?
Yes it can. To minimize the time: 1) Be selective with the electronic discovery you collect (see above); 2) Be very cautious with the search terms used to search for relevant data; and 3) Don’t lose site of the core issues of the case.
Does the investigation process differ significantly in complexity according to the digital platform (i.e. mobile phones, hard drives, and the cloud)?
Yes and no. What is most important is using the most appropriate and technically advanced software for the location from which you are going to obtain the data. Specialized forensic software to analyze data on a smartphone, data on a hard drive, or internet activity is different. Some of the analytical procedures remain the same however. Advances continue to be made in the ability to obtain data from the cloud.
You define digital forensics as ‘an art as well as a science’; could you please explain?
Digital forensics is a science and as much as it is a highly technical arena. It requires extensive training and experience. The expert really needs to know what they’re doing, even more so than other areas of expert witness testimony and must stay on top of ever-changing updates to software technology. It is an art from the standpoint of how the expert utilizes their knowledge and experience. How they are able to “think outside the box” and come up with alternate ways to obtain data when they come to roadblocks. The expert’s ability to present technical and complex findings in a clear and understanding manner is also an art for a digital forensics expert.
Is there anything else you would like to add?
Approximately 95% of all data generated today is placed on a computer or phone, and less than 10% of that data is printed out. So whether an executive is: responsible for human relations and suspicious of an employee’s loyalty or false accusations; in finance and suspicious of fraud; or inside counsel involved in unfortunate litigation, it is imperative to examine digital data. And smartphones should be placed at the top of the list… people don’t leave home without them!
It is very rare to come across a professional who in their career to date has had such a depth of unique, high calibre and leading international energy infrastructure experience as our next interviewee, and she says she “still has a lot more she would like to be part of, contribute too and achieve, within the international business and energy sector.”
Lawyer Monthly hears from Nicole Iseppi, currently the Associate Director of Strategy, Economic Development & Communications for Global Centralised Generation at ENGIE. Nicole talks about the progression of how legal skills are now being viewed in being able to add additional value within companies, discusses the first steps of her legal career, and how through great opportunity, they led her to some of the best experiences of her life.
Can you talk LM through the beginning of your legal career, what inspired you to become a lawyer and pushed you to pursue this life?
I am originally from Melbourne, Australia, and have been extremely fortunate to always have strong mentors in my life who have inspired me early on to work hard and “if a job was worth doing, it was worth doing properly.” My parents instilled in me that if you are fortunate to have access to a good education and the chance to be exposed to a variety of opportunities, you also have a responsibility to do something useful with such knowledge and experiences, and return the favour by giving back positively in some way to society.
It all started from the time I was working as a trainee lawyer at Freehills (Melbourne) in the Projects & Energy Group, where I was exposed from day one to this world of “energy infrastructure and finance,” and as the saying goes, the rest is history. I have worked in such sector ever since, around the globe, including having the opportunity to live and work in cities such as Tokyo, Abu Dhabi and Dubai as a senior female professional. It has been this pure passion for the work itself, and having a deep enjoyment of constantly being intellectually challenged & playing a role in contributing to the business acumen and direction of a company, that has led me to take this career path for the past 15+ years and never look back; whilst also at the same time undertaking work that adds value back to society by doing something that assists to bring energy access and energy security to various communities around the globe.
What would you say have been the top experiences in your legal career to date?
I have been extremely fortunate to date, to have had the wonderful and very rewarding experience (both professionally and personally) of working within two great international companies within my career. That is, JBIC and ENGIE. Having the opportunity to act as an adviser to JBIC’s senior management on many of their high profile energy related transactions, plus acting as the adviser to establish and implement on behalf of the Japanese Ministry of Finance and JBIC - the Japan Carbon Finance Ltd (a new financial institution) and also being the first female foreigner to ever work directly as an adviser within JBIC during my time in Tokyo - created an important milestone in my career.
After my 6+years of being based in Tokyo, during which I had such a unique opportunity to work within the international Project Finance department of JBIC and be part of something extremely special, I wanted to become even more actively involved in the long-term development of energy projects and therefore joined ENGIE at the start of 2010, and since then have had the great privilege and reward of being part of the team at ENGIE and holding the following senior legal and commercial positions:
What has been the best decision you have made so far in your legal life?
The decision to join ENGIE at the beginning of 2010 has been, and continues to be, one of the best professional and personal decisions I have ever made. It allowed me to not only become part of an innovative and dynamic group of people who come from multiple disciplines & backgrounds, but also the opportunity to be actively involved in both (i) the initial planning to the post-construction and operation phase of energy projects across multiple continents and (ii) the strategic formulation, as we move through this current energy transition phase the global energy sector is experiencing, providing me with an amazing intellectual reward and sense of contribution.
Due to the exciting work environment ENGIE promotes and inspires in its employees, there is always great energy and enthusiasm in the office, which makes it an absolute pleasure to come to work each day. In light of this, I aim to constantly add value and contribute to the team, in order to assist in the achievement of ENGIE’s objectives.
What are the most recent roles and tasks you have been involved in at ENGIE?
Since the beginning of 2016 I have been applying my skills and industry knowledge as part of ENGIE’s global centralised generation strategy team. Centralised generation is an essential part of both ENGIE’s portfolio of assets and the global energy sector. In working through the energy revolution that is currently transforming our global energy markets, we collaborate with our fellow colleagues within ENGIE - across all our different regions of activities - to achieve further successes in our united pursuit of ENGIE, continuing to be a leader in tomorrow’s energy world. It is extremely rewarding to apply my skills and experience (which have also originated from my legal career) to such a strategic & commercial role and collaborate with my colleagues, so to create additional value for the benefit of ENGIE and the energy sector we are all active participants in.
As a result of my past legal and strategic experiences, this year it has also been very exciting to be given the opportunity to be part of the core team in assisting Isabelle Kocher (as Chairperson of TWI and also as our inspiring CEO of ENGIE), in the implementation of the global solar Terrawatt Initiative (TWI) and TWI’s global ‘Solar Energy Standardisation Initiative’.
TWI was launched during COP21 in November 2015 as a global independent non-profit organisation that aims to promote the acceleration of solar development. In June this year, together with the International Renewable Energy Agency (IRENA), TWI has launched the ‘Solar Energy Standardisation Initiative’, which aims at standardising contracts to streamline the global development and finance of solar projects to assist in meeting the objectives and quotas the governments around the world set via ‘The Sustainable Development Goals’ and the ‘Paris Agreement’.
There is a strong political call for our economies to deliver more sustainable growth, to more people, and to recognise that universal energy access and energy security are critical to the shared prosperity and future of our planet. The energy sector is at the centre of this revolution in the making, in particular solar, because of its ability to provide clean and affordable energy. The energy sector now has to deliver the many socio-economic benefits of affordable renewable energies at the scale required by these two political landmark decisions, and hence TWI aims to animate a high level public and private dialogue at a global level, to bring all core stakeholders together (from funding sources to energy companies and equipment manufacturers) in an open, innovative and collaborative environment, to work out exactly how we can all best define and implement such a global market for solar power.
If you hadn’t chosen the energy sector, what kind of professional world would you have worked in?
Looking back over my career to date, I can say that I’ve had the fortunate opportunity to spend the whole of my career within the energy sector, which has provided me with a very strong base to develop a wide range of commercial, legal, financial and strategic skills and know-how. I’ve always enjoyed being intellectually challenged and working to assist in constantly adding value to the company and therefore, as we now work through the energy revolution that is currently transforming our global energy markets, it is extremely motivating to work for a company such as ENGIE that has been proactive in developing a plan in steering us through this energy revolution period. I am excited as to how I can further professionally contribute to the future of our global energy sector and the opportunities that may lie ahead.
As a long-standing and reputable voice in the energy-legal sector, what advice do you have for lawyers who want to pursue this path?
The best piece of advice I can offer to other professionals in the legal and energy sector is : “Make sure you explore different things during your career; discover what your true passion and interests are, and then once you have found your areas of focus within work, dig deep. It is this passion that will drive your ability to work hard and have the determination to achieve and make positive contributions. Gather all of your courage and believe in yourself. Back yourself to achieve and make sure you have a good support network around you and most of all, make the best of every opportunity.”
Can you detail some other past achievements throughout your legal life which you are most proud of?
- Being appointed to act as the Global Team Leader for ENGIE’s Structured Network on Financing Agreements for ENGIE’s international energy finance practice;
- Acting as a senior adviser to ENGIE for execution of its first ever project bond transaction in the global finance sector (that is the Shuweihat S2 Project Bond Refinancing in Abu Dhabi, UAE); and
- Being invited as a guest speaker at various global finance & infrastructure conferences, including regularly as a member of the Global Power Panel of experts for the International Bar Association, where we have the opportunity to share our industry knowledge with professional peers and collaborate - for the future success of this sector.
Competition and antitrust law is of course an integral part of the business world, ensuring fair competition between competitors and guarding against one company dominating the market, and therefore limiting the choice and variety that the market is offered.
Talking about the latest competition discussions and challenges in the EU markets, about his own work in this field, and on how IP rules may in turn soon affect antitrust matters, is Howard Cartlidge, Partner & Head of EU/Competition at the London office of DWF LLP, a UK law firm.
Howard is a commercial lawyer specialising in EU and UK competition/antitrust law and regulation with a particular focus on competition and regulatory disputes and investigations. He acts for clients across a wide range of industries, particularly regulated sectors and businesses reliant on intellectual property rights.
What are currently the biggest discussion points on EU competition law?
The European Commission under Competition Commissioner Margrethe Vestager remains very active. Four areas are of particular interest:
What does most of your competition work revolve around and who are commonly your clients?
Much of my work involves assisting businesses involved in investigations by the competition authorities. Litigation is another major area and increasingly it is both the first recourse for victims of anti-competitive activity – preferred to the slowness and unpredictability of filing a complaint with an authority – and an inevitable response to an authority's infringement decision, where "follow-on" damages claims are becoming the norm.
How have you seen antitrust litigation evolve throughout the EU over the past decade?
Antitrust litigation has grown enormously in volume – 10 years ago it was still relatively uncommon to sue for breach of competition law, whereas today it is routine, even if many detailed legal issues remain in contention. Although Germany and The Netherlands have seen significant cases, the UK has been the pre-eminent venue for competition actions. Whether that can survive Brexit is one of the many unanswered questions.
What do you believe to have been the biggest turning point in that time?
I don't think there has been one turning point in the UK, with its steady and growing stream of cases. However, the Damages Directive will be a minor revolution for many national jurisdictions within the EU, most notably by introducing limited obligations to disclose documents relevant to the case. Whilst standard in the UK, this is wholly new for many civil law jurisdictions and it will be fascinating to see how courts cope with it.
What would you say are the further steps to be taken in terms of legislative development?
Damages Directive aside, I would expect some slowdown in EU legislative developments on antitrust. However, antitrust law could be significantly impacted by changes to EU intellectual property rules as part of the Digital Single Market initiative, as the Commission seeks to promote cross-border trade.
What are the key points to consider in terms of competition law when it comes to commercial agreements and IP licences?
As with any agreement, context is crucial – what markets are affected by the agreement or licence and what is the position of the parties in those markets? In addition, clauses that seek to fix the prices that customers or licensees charge for their products are always problematic. Another EU–sensitive topic is any attempt to divide up EU markets by territory.
As a thought leader, are there any issues you are currently lobbying on?
As a competition specialist, I tend to confine my own lobbying efforts to arguing for clarity and utility on competition legislation and guidelines. However, a wide range of government legislative initiatives can impact the competitiveness of particular industry sectors, and a competition lawyer's skillset can often be useful in formulating clients' arguments to government.
Beginning a new position at DWF, what are your goals for the antitrust & competition practice?
I am looking forward to working with the great team DWF already has in the UK and in Brussels to grow our practice. My own particular focuses are on contentious competition law and the technology and communications sectors, where I think we have enormous potential to grow. The firm is also becoming increasingly international, with our German and Irish businesses being particularly interesting for the competition practice.
Estate planning is a complex area of the law, with regulations and directives that are changing from year to year, and at all times, lawyers need to be ready to advise on all the latest legal updates, and be highly aware of the most efficient ways to minimize taxes and expenses surrounding the transfer of estate and assets. That’s where this thought leader’s experience and forward looking attitude comes in.
Here Donna Jackson, Founder of her own firm, Donna J. Jackson, Attorney at Law, PC, gives brief insight over the work her and her firm does in estate planning, her thought leadership therein, and an provides an overview of the kinds of clients she works with daily in Oklahoma, US.
What would you say are the most common obstacles clients face in the US as they look to plan their estates?
Estate planning is not just about dying and saving estate taxes. Clients worry about who and how they are going to take of themselves and their families if they get sick and have to go to a nursing home.
Many people would assume that when one dies or becomes mentally disabled, without proper estate planning, their assets automatically pass to their next of kin or offspring. Are they wrong and why?
Assets do not automatically pass to the spouse first, then the kids. If a husband dies without a will or trust in place, the spouse will only end up with part of the husband’s estate, depending whether there are children of this marriage, children of prior marriage, no children, and parents living.
What would you say makes you the go-to attorney for estate planning in Oklahoma?
The greatest fear that drives people to my office is illness, often with the threat of nursing home confinement.
What is currently the scenario in regards to estate planning in the US, particularly pertaining to the IRS and congress?
Currently, there are no estate taxes for estates under $5,430,000. The Presidential candidates and Congress want to change this.
What would you say are still further steps for the US government to implement in terms of estate planning law?
The US Government is implementing legislation to limit the use of discounting when valuing transfers of family owned businesses.
As a thought leader, how are you actively working towards the development or implementation of new estate policies?
I am actively involved with the National Academy of Elder Law Attorneys, the American Bar Association and the Oklahoma Bar Association.
Do you have a mantra or motto you live by when working with your clients in this legal segment?
My staff and I help to provide care and peace of mind to my clients and their families.
Is there anything else you would like to add?
Estate planning is about taking care of the living!
‘The UK Licensing Act 10 Years On’
In the UK, the night life entertainment industry is regulated by the Licensing Act (2003), which governs the licensing of premises that sell or supply alcohol, provide live music or entertainment. Given the size of this sector and the complexity of how each bar, pub or club functions individually, regulations and compliance are crucial in keeping operations afloat.
Over the next few pages, Lawyer monthly has had the privilege of speaking with Helen Wilson, Head of Procurement and Legal Contracts at The Deltic Group, the UK’s largest operator of premium late night bars and clubs. Besides detailing her role at The Deltic Group, her leadership in the company’s operations, and the challenges of being the Head of Legal in such a large entertainment group, Helen discusses the establishment, progression, impact and future of the Licensing Act, with some reference to Brexit and the changing landscape of today’s night life culture.
What kind of legal matters do you generally deal with at the Deltic Group?
My remit is far wider now than it’s ever been and the learning curve of 2016 has been a steep one! My initial role with The Deltic Group was as Head of Legal, I am also assuming temporary responsibility (maternity cover) for company secretarial duties, insurance and litigation. Following a restructure, I am now Head of Procurement and Legal Contracts.
The range of legal issues I am grappling with on a daily basis includes contractual matters for the business (which at the time of writing has 59 trading clubs), advice to the shareholders, licensing issues, data protection issues, IP portfolio maintenance and public liability insurance claims. I also have day to day involvement with suppliers (wet and consumables) and manage the tender process with Deltic’s Senior Buyer.
I advise the Board in relation to acquisitions, disposals and deal with company secretarial matters. On a managerial note, I am fully focused on motivating and supporting my team of eight, which currently includes Licensing, Insurance and Litigation and Procurement.
With such a broad range of responsibilities, my days include all manner of occurrences from the intense and pressured negotiations of acquisitions to, on occasions, service delivery standards by our cleaning contractors to analysis of income for AWP machines!
What would you say are the biggest rewards of working in the hospitality & entertainment sector, particularly in your legal role?
Well, never one to be still and always needing a challenge, I particularly enjoy the fact that no one day is the same! I also get a lot of personal satisfaction from supporting our teams around the country. They are hard-working, dedicated and under incredible pressure. Providing supportive, professional and solid legal support enables them to confidently deliver at the sharp end.
How did your previous experiences in law practice prepare you for this legal role?
I always enjoyed the client relationship management side of my previous role and this position at Deltic enables me to get under the skin of the business and put that commerciality into practice. I am a “doer,” and by listening to the needs of the operators of the business, our team is able to find practical solutions in a proactive way. As a transactional lawyer, I am used to juggling a number of balls at the same time and keeping them in the air. That has been essential in this role due to the variety and often urgency of dealing with the authorities on licensing matters or getting contracts over the line.
What goals did you aim for when joining the Group in 2015, and have these now changed? Do you have new professional goals for the Group?
Interestingly, I joined Deltic with no knowledge of the industry to cover a period of maternity leave, so my expectations were initially short term. I was completely unprepared for how much I would learn and how much I would enjoy this vibrant and interesting industry.
I can honestly say that when I used to go out for a social evening with friends, I never stopped to think about what it takes to provide the evening. Do any of us? If we are having a good time, then probably not.
Operating a late night entertainment venue, whether it’s a club, a bar or a multi-experience club, is nothing short of a military operation. It involves many layers of specialist staff, all managing different parts of the operation to provide a high-class and seamless experience.
When dealing with the public there will always be things that don’t go according to plan. That is why we invest so heavily in training our staff, at every level, to ensure they are prepared to respond to everything from a slip or cut right up to the highest level of crisis. Our customer’s experience and welfare is paramount.
The aim is for our customers to go home remembering an exceptional and memorable night, unaware of the efforts being made behind the scenes and able to reminisce with friends the following day.
Can you tell LM a little about the establishment of the UK Licensing Act (2003) and what it replaced at the time?
The Licensing Act 2003 made provision for the regulation of the sale and supply of alcohol, the provision of regulated entertainment and the provision of late night refreshment and for offences relating to alcohol and connected purposes. It combined eight separate licensing regimes into one, also transferring the regulation of the sale of alcohol from licensing justices and magistrates’ courts to local licensing authorities.
The modernisation of the legislation was intended to support a number of key aims which the Government intended to be principle aims for all involved in licensing work including:
The UK Licensing Act (2003) has had a positive impact on the late night economy with many of these objectives being achieved since its introduction. However, the unsavoury behaviour of some customers, together with the irresponsible attitude of a small percentage of operators, has cast late night activities in a less than positive light. As a result, the authorities have used the new legislative powers to make wide sweeping changes across the entire industry.
Can you explain how it initially impacted the Group? What were/are the significant benefits?
The streamlining of the licensing processes was definitely a benefit and provided clarity from the Government about the application and interpretation of the legislation.
To what extent do you believe the Licensing Act, since 2003 to date, has shifted cultural and social change in the UK’s live music and clubbing scene?
Entertainment is intended to be available to all, in all its forms, with the only limits being entirely reasonable ones; licensable activities are only restricted where its provision would be detrimental by undermining the four licensing objectives, each designed to protect the public; protecting children from harm, the prevention of public nuisance, the prevention of crime and disorder and public safety.
We work hard to ensure that we always deliver great nights out with great entertainment whilst meeting our regulatory obligations. However, I don’t feel it’s unfair to say that the emphasis of protecting the license for some operators has taken such a precedent over providing entertainment. As a result, many licensees now won’t work to provide live music or music events because of the inevitable complaints.
Do you believe that some of the Act’s directives have driven challenges within the Group?
I’d say the Act itself hasn’t driven challenges, but the effects of the introduction of the Act, on the late night economy, has certainly created challenges.
The almost complete lack of regulation regarding supermarkets and off-licensed premises, combined with the incredibly cheap prices for off-sales, means the on-licensed premises is being challenged in every way imaginable. The overheads and associated costs of providing high-class, professional establishments with top line entertainment are considerable.
How have you helped overcome these since you joined in 2015?
By educating our staff, whilst providing a legal and licensing support function, which helps them increase their knowledge, understanding and confidence about licensing responsibilities and issues.
Are there any challenges in terms of compliance with the Licensing Act, and what are the consequences of non-compliance?
The consequences of non-compliance can be many, varied and severe, and compliance is a priority at the highest level within the Group.
The consequences to any premises licence holder can include damage to their reputation or financial penalties, but they pale into insignificance when considering the potential cost to any injured party. The costs can be life altering, whether it’s through being a victim or perpetrator of crime or suffering a serious injury or loss. We strive not just to be compliant, but to achieve the highest and most robust level of compliance possible, continually reviewing and looking to improve.
Have there been any other EU or UK legislative developments to impact the way the Group operates in the last few years?
The need for transparency in the supply chain supported by the Modern Slavery Act 2015 means that we needed to analyse our supply chain and prepare a code of conduct that new suppliers will sign up to next year. We purchase goods and services to support the operation of our trading clubs and bars and the provision of late night entertainment. Consumables purchased include drinks, food, marketing materials, ICT equipment and estate services such as cleaning, waste management, fixtures and fittings and security and uniforms.
What do you believe hospitality & entertainment businesses should be considering in light of Brexit?
For us, it’s very much business as usual. While it is too early to identify any potential implications from the UK’s likely exit from the European Union, we are confident in our strategy and will continue to grow the business, plan refurbishments and invest in our venues and people as usual.
As an industry, over the next two years we will need to consider how we mitigate the effect of this and consider alternative solutions to maintain the quality of our offering. It will be interesting to see what the implications will be for data protection.
Is there anything else you would like to add?
Do you want to book a booth and have a great, safe night out?
The global hospitality industry is huge. From hotels and restaurants to theme parks and cruise lines, this sector employs hundreds of thousands of people all over the world and is subject to a wide and ever-changing set of regulations.
Douglas Wignall, consultant solicitor with Cubism Law, here talks to Lawyer Monthly about the complexities involved in his work, his thought leadership, and touches on the ins and outs of drafting the kinds of contract agreements he deals with.
What are the key challenges you face on a day to day basis, specifically in terms of contract drafting? How do you overcome them effectively?
The key challenge for me, if I am acting for a hotel owner in a management contract negotiation, is to recognize that each hotel owner will have different concerns regarding his legal/commercial relationship with the hotel operator and what could be a key issue for one hotel owner may be of no concern to another and vice versa. Hotel owners vary considerably in their priorities depending on whether they are developers, investors, institutions, entrepreneurs or governments, and depending on the region and country in which the project hotel is located. Therefore the amendments, additions and deletions to the management and related agreements you negotiate for one owner, with a particular operator, may be totally inapplicable in the management agreement negotiations with the same operator for another owner.
What considerations do hospitality companies such as hotels and restaurants need to be aware of in regards to regulation in the UK? How do you assist in this regard?
The law affects the hotelier in many more ways than most other industries. It involves, for example, contracting with guests and customers, suppliers, employees and professional advisers; complying with regulations/laws by central and local government (licensing, health and safety, food standards , consumer protection all spring to mind); also you need to be aware of the hotelier’s liability as an occupier and his liability for the property of guests and of many other areas of the law such as race relations, sex equality and potential legal issues arising from the letting of banqueting rooms and the hiring of entertainers, to name just a few.
I spend a fair bit of time keeping on top of all the areas of law which affect my hotel clients and on which I might be called upon to give advice. I have also prepared legal audits or checklists itemising all the elements of hotel operations and how best to implement them whilst staying on the right side of the law. I prepare this in the form of a questionnaire, which I would go through with the owner or general manager of the hotel, and if need be their key staff.
Can you detail a recent project you have advised on to which you applied particular thought leadership? What were the complexities involved?
I acted for the Government of a country with a stunning coast line, 30 hectares of which it wished to lease to an operator for the operation of two luxury hotels and one five star hotel. The ‘country’ only actually became an independent country sometime after I became involved in the project and, being recently part of a communist state, my client instinctively thought of the Government as all powerful and able to deal with problems as and when they arose, and not to predict and plan for them in advance. There were many problems, the foremost of which was the fact that there were no established leasehold laws or precedents, and several laws had to be passed for this project to happen. There were also issues relating to title, rights of way and with the employees of the existing hotel which had to be shut down for two years during upgrading.
During the negotiations my client came round to a more Western way of doing business and we were able to incorporate in the lease provisions dealing with most potential problems or issues that arose. It was a fascinating project not just for its legal issues, but for its quasi-political dimensions and for the need for all the players to adapt to a new business mind-set.
What are the challenges involved in drafting management agreements in the hospitality sector?
I have drafted several template hotel management agreements on behalf of either start-up hotel operating companies or established hotel operating companies entering into management agreements for the first time. The challenges I am faced with vary considerably from client to client, but here are some examples:
How does being a member of the Associate of Hotel Solutions Partnership help you expand your boundaries and boost your thought leadership in hospitality law?
Hotel Solutions Partnership (HSP) is an association of over 40 independent consultants each with at least 10 years’ experience and which, collectively, embrace substantially all the areas of expertise associated with the hospitality industry including services related to acquisition, development and operations. By being part of a team of hospitality consultants, HSP has helped me expand my boundaries by applying my services to matters not exclusively involving the law. Two examples:
